England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2009

Lord Justice Maurice Kay :

1. Bachan Kaur Athwal (Bachan) and Sukhdave Singh Athwal (Sukhdave) are mother and son. They are aged 71 and 44. On 26 July 2007 at the Central Criminal Court they were convicted of murdering Sukhdave's wife, Surjit. They were sentenced to life imprisonment, she with a minimum term of 20 years, he with a minimum term of 27 years. She has leave to appeal against conviction and sentence. He has leave to appeal against sentence and against a confiscation order but not against conviction. However, we grant him leave for that, too.

   The factual background

2. Surjit was born on 17 July 1971 in London. She was of Punjabi ethnicity, as are the appellants. She married Sukhdave on 16 June 1988. It was an arranged marriage. In December 1998, she and Sukhdave were living at 88 Willow Tree Lane, Hayes. There were two children: Pawanpreet who was then aged 7 and Gavanmeet (Gavan), who was then 9 months old. Next door at 90 Willow Tree Lane, Bachan lived with another son, Hardave, and his wife Sarbjit. Surjit was employed by HM Customs and Excise. She worked at Heathrow.

3. In December 1998, the marriage of Sukhdave and Surjit was in difficulty. They had both contemplated divorce. They had sought legal advice although on 30 November 1998 Surjit had told her solicitor to await further instructions. The solicitor never heard from her again. Surjit was having an affair with a work colleague, Harry Grewal, and it was thought that he might be the father of Gavan. Surjit was undoubtedly an attractive and lively young woman.

4. On 4 December 1998, Surjit and Bachan flew to Delhi. They attended two family weddings on separate days in a rural area of Punjab. The trip was arranged very shortly before departure. It was Sukhdave who obtained the visas on 3 December. The two women were met at the airport in Delhi by Darshan, Bachan's brother. The weddings were on 5 and 6 December. Photographs and a video recording show Surjit to have been alive and well at the weddings. Some days later Surjit attended a travel agent in Amritsar and tried to bring forward her return flight but she was unable to do so. Bachan returned, as planned, on 18 December. Surjit did not. She has not been seen or heard of since then.

5. The prosecution case at trial was that Surjit was lured to India by Bachan and Sukhdave in order that Darshan and others could murder her and dispose of her body. The circumstantial evidence that she died in India in December 1998 is very cogent. She was not on the return flight for which she had a ticket. There is no record of her having boarded any other flight. There has been no later activity on her bank account or with the credit card she had with her. She had left her mobile phone and driving licence at home in Hayes. There has been no subsequent use or renewal of her 1995 passport. Her national insurance registration was cancelled in 2000. She is not known to the social security system or the criminal justice system. There has been no report of any accident or illness. She was a devoted mother but there has been no contact with her children or, indeed, with any member of her family, her work colleagues or Harry Grewal.

6. During the long trial, there was evidence of numerous facts which put Bachan and, even more so, Sukhdave in a bad light. After Bachan's return, Sukhdave told a number of people how he had spoken to Surjit on the telephone of a woman called Kate. This was a carefully planned lie, as he admitted. At a later date, he provided information to the traffic authorities that she had "passed away". He, with support from Bachan, wrote forged letters to the Indian police in order to deter them from investigating Surjit's disappearance. Sukhdave and Bachan were both parties to the forgery of a conveyancing document which diverted Surjit's interest in 88 Willow Tree Lane to themselves. Soon after Surjit's disappearance, Sukhdave petitioned for divorce and referred to the dishonest "Kate" story in his petition. There was evidence of animosity and ill-will by both appellants towards Surjit, including evidence of extremely emotional statements.

7. For as long as the evidence was as circumstantial as we have described, it was understandably considered insufficient to justify charges. However, that changed in 2005 when two witnesses made statements to the police – Sarbjit (the daughter-in-law and sister-in-law of the appellants, who lived at 90 Willow Tree Lane with her husband Hardave) and Bhajan Kaur Binder (another daughter and sister of the appellants). It was undoubtedly this evidence that led to Bachan and Sukhdave being charged with conspiracy to murder and, as a result of an amendment to the indictment at the commencement of the trial, a joint offence of murder. We accept that this evidence, and particularly that of Sarbjit, was central to the prosecution case.

   The evidence of Sarbjit and Bhajan

8. Sarbjit made a witness statement on 27 October 2005. In it she described a family meeting at 90 Willow Tree Lane shortly before Surjit and Bachan went to India. It was attended by a number of members of the immediate family including Bachan. At it, Bachan said that everyone was fed up with Surjit and that she had decided to take Surjit to India to get rid of her. Although Hardave spoke against such a suggestion, Bachan said that she had spoken to her brother Darshan and that it was all arranged. Sukhdave was present throughout. She also described a later occasion, following Bachan's return from India, in which Bachan told her that, whilst the two women were in India, Darshan had taken Surjit off in a car and Surjit had been strangled. Sarbjit made a further statement on 8 February 2006. At trial she gave evidence about the meeting at 90 Willow Tree Lane and the later conversation with Bachan in which Bachan had said that Darshan and his friend had taken Surjit away in a car and that she had been strangled. Her body had been thrown into the River Ravi.

9. Bhajan was arrested on 3 November 2005, shortly after Sarbjit had named her as one of those present at the meeting at 90 Willow Tree Lane. On arrest, in interview and in a witness statement made later the same day, Bhajan denied that she was present at that meeting or that she knew anything about it. However, she described a conversation with Bachan in late December, following Bachan's return from India, in which Bachan told her that Surjit had been killed by Darshan's friend whose name she did not know. Bhajan made a further witness statement on 3 February 2006. At trial, she said that she knew nothing of a family meeting. When examined in chief about the conversation with Bachan following her return from India, Bhajan claimed that she could not remember anything. However, the prosecution were permitted to treat her as a hostile witness and when passages from her interview and witness statement were put to her she said that she had not lied. When asked "Was everything you told the police true?", she replied "Yes, I think so".

10. There were undoubtedly many imperfections in the evidence of these two witnesses. The defence were able to expose a large number of inconsistencies and other faults in Sarbjit's evidence and Bhajan was treated as a hostile witness. Nevertheless, their evidence, particularly that of Sarbjit, was crucial to the prosecution case. It called for the most careful consideration by the jury who would have to assess its imperfections and shortcomings in the context of the family dynamics and emotional turmoil which existed at the time. As we have observed, Bachan and Sukhdave were not charged until the police had obtained this evidence and we are content to assume that neither would have been convicted without it. We shall return to it when we come to the second ground of appeal.

    The first ground of appeal: abuse of process

11. In its original form the indictment charged Bachan and Sukhdave with a single offence of conspiracy to murder, the particulars being that on a day between 1 September 1998 and 19 December 1998 they conspired together and with others to murder Surjit. The words "and with others" were later amended to read "and with Darshan Singh and another person or persons unknown". Nothing turns on that amendment. However, the trial judge also gave leave for the indictment to be amended so that the previously amended conspiracy Count became Count 2 and a new Count 1 was added charging Bachan and Sukhdave with murder. In due course both counts were left to the jury with the direction that they could only consider the alternative of conspiracy to murder if they were not sure that Surjit was in fact dead. At the commencement of the trial the defence applied to stay the prosecution in relation to the count of murder on the basis that it amounted to an abuse of process. The submission was that, whereas the alleged conspiracy had been hatched in England, the substantive allegation of murder related to a killing in India. The defence had been alerted in August 2006 of the intention of the prosecution to add a count of murder. This had led the defence solicitors to apply to the Legal Services Commission for additional funding to enable them to pursue investigations in India. However, the application for funding was refused until 22 March 2007 when limited funding was made available. It enabled a solicitor to travel to India for a few days shortly before the trial was due to begin. The visit yielded little of assistance to the defence. The application for a stay was put on the basis that the defence were substantially and unfairly prejudiced in the preparation and conduct of the case because they had been unable to carry out essential investigations in India. There was an inequality of arms because the police in this country had been able to carry out more meaningful investigations in India and elsewhere. Although the Crown Prosecution Service had placed the services of the visiting English police officers at the disposal of the defence and this offer had been accepted, it was no substitute for the defence carrying out their own investigations. All this was said to be particularly prejudicial in the case of Bachan because she had been in India at the material time and it was unfair to her if her legal team were unable to investigate matters locally so as to refute the case for the prosecution as to what had occurred in India. It was suggested that the defence team ought to have been able to investigate in the villages where the weddings had taken place and where Darshan lived and also in Amritsar where Surjit was said to have spent some time. Investigations of methods of transportation might have enabled the defence to counter the prosecution case. Darshan had been prosecuted in India for abducting Surjit. He had been acquitted apparently because the two crucial prosecution witnesses became hostile. Although the defence knew this in summary form, they might have benefited from further local investigation. They would also have wished to have investigated in the area of the River Ravi. Moreover, there was material in the papers suggesting that Surjit might have been involved in helping someone to enter the United Kingdom from India illegally. Inquiries might also have enabled them to build a picture of an unhappy young woman who might simply have chosen to disappear in India. These are not all the matters to which reference was made. In short, the submission was that the defence were unfairly handicapped in a way in which they would not have been if the alleged murder had occurred in another part of the United Kingdom. Also, although the prosecution had originally indicated an intention to rely on a quantity of evidence gathered in India, much of it the subject of a hearsay notice, there was a late change of leading counsel for the prosecution and, when Mr Michael Worsley QC took over, he decided not to rely upon much of that material. The letter to the defence notifying withdrawal of such reliance was dated 18 April 2007, a week after the trial had been scheduled to begin but a week before it actually began.

12. The judge gave his ruling on the abuse application on 2 May 2007. He referred to the essence of the application as being that "the defendants are prejudiced in their defence in such a way as cannot be made good by the trial process". In rejecting the application he said:

    "The papers, both used and unused, demonstrate that a good deal of effort has gone into finding Surjit, dead or alive. The police of both countries have been involved, also Interpol. There has been much diplomatic and political involvement, indeed political involvement at a very high level, with pressure emanating from this country in an attempt to solve the problem. Perusal of the British High Commission file demonstrates this. The difficulty lies in the fact that, of course, India is subject to a different system of law and the police from this country cannot without more just go there and make enquiries … Thus it is that enquiries into an alleged crime in India to be tried here in London are naturally beset with difficulties, as this case demonstrates. There has been a trial in India of the man Darshan Singh … I have seen some of the papers. It seems he was prosecuted for the abduction of Surjit. The two witnesses whose evidence I have read became hostile witnesses, disinclined to say anything at all, and, in spite of cross examination by counsel who called them, neither gave any helpful evidence. … The English Police … have visited India on two occasions. Two Metropolitan Police Officers spent a week or so in the Punjab in or about September 200… More recently … officers went to India between 13 November and 19 November. On this occasion the police carried out their own enquiries and they also made enquiries on behalf of the defence solicitors who had raised seven points which they asked the police to enquire about.

    Part of the defence complaint is that the defence have been underfunded in relation to enquiries in India. A solicitor instructed by the defence spent some three or four days in India quite recently but funding did not permit more than that. I do not overlook the fact that Bachan has contacts in India, indeed her brother Darshan is, I understand it, there, and the reason she travelled there in December 1998, on one view of the evidence, was to attend two weddings, which feature in the evidence. She has connections in India and contact with India can of course be made by telephone and by letter as well as actually going to the place.

    Putting that to one side, I accept that the defence enquiries are hindered, for the reasons which I have mentioned. Having said that, so are the prosecution enquiries. It is difficult to make enquiries from the Indian authorities in these circumstances, as the papers reveal.

    In the event, the Crown will not be relying on much of the so-called Indian evidence. Mr Worsley has decided against that. The prosecution in relation to the allegation of murder will be relying on much the same evidence as the Crown would have relied on to prove the conspiracy. That is, in a nutshell, what was done and what was said in this country; the visit by the two women to India in early December; some of the events in India, such as the two weddings, of which I think there is a film; the return of Bachan on 18 or 19 December but without Surjit … and, so far as Surjit is concerned, … absolute silence thereafter and, in all that time since December 1998, apart from what I may loosely call the occasional rumour, there has been no sight nor sound of her, no return to her home, to her job, or to her children; no letter or telephone call to any member of the family, such as her father, Mr Dhillon, who has been anxiously attempting to find his daughter; no report of an accident, illness or even death from natural causes – which would surely have come to light, had that been the explanation – either to her family or to her friends, or to some authority which has been trying all this while to find her. That is how the Crown puts its case. It does not rely, for instance, on some eye-witness to the murder or other direct evidence of the killing, the case is circumstantial. As a result, the trial judge will be duty bound to give careful directions to the jury about the absence of a body, in accordance with the authorities, which have been drawn to my attention. That is all part of the trial process, as of course is the burden and standard of proof. It is for the prosecution to prove not only that she is dead but also that she has been murdered and if the Crown cannot do that, Count 1, alleging murder, will fail.

    Whereas I understand all the points which have been put to me, I am entirely satisfied that this trial can take place in these circumstances and will be a fair one."

    The judge then went on to address one or two specific matters to which reference had been made.

13. The trial proceeded but on 6 July 2007, shortly before the conclusion of the evidence, a renewed application to stay as an abuse of process was made. The basis for this was that, whereas at the commencement of the trial the prosecution had disavowed its previous intention to adduce much of the Indian evidence, their conduct of the trial including the cross-examination of Bachan and evidence adduced in chief from the officer in the case, had not been so inhibited. The judge was therefore invited to revisit the issue of abuse of process on the basis that the unfairness and prejudice which had been relied upon in the original application was now compounded by the fact that the jury had heard a considerable amount of evidence about events and circumstances in India and the inability of the defence to have carried out appropriate investigations in relation to such matters showed that a fair trial was impossible. In rejecting the application the judge said:

    "In my judgment there is nothing which has happened during the course of this case which causes me to depart from my earlier decision … There is still plenty of room for the trial process. If counsel is unhappy about any particular point, there is such room, either by agreement between counsel, or during the course of counsels' speeches and, importantly, during the course of the judge's summing up, for matters to be dealt with in an appropriate way. I shall certainly be telling the jury not to speculate … There is of course the evidence of Bachan as to what happened in India and the Crown have to deal with that and there is the other evidence, based upon admission 14, from a travel agent in Amritsar. But the heart of the Crown's case relates to things that happened in England and the drawing of inferences based upon circumstantial evidence as to her failure to return from India. There are of course, passages of direct evidence, in particular from Sarbjit and Bhajan; but there is a deal of circumstantial evidence on which the Crown relies. To go back to the essential point here: there is nothing which has happened since my earlier ruling to cause me to change my mind and to say that what was a fair trial then is not a fair trial now … This is an example of the process acting properly and fairly within the constraints which apply to all parties."

14. On behalf of Bachan, Miss Kaly Kaul, (whose submissions on abuse of process are adopted by Mr Jonathan Rose on behalf of Sukhdave) submits that the judge was wrong to refuse to stay the proceedings as an abuse of process or that this Court should now find the convictions to be unsafe because the trial was fundamentally unfair.

15. The legal principles relevant to abuse of process applications are well known. It is common ground that:

    (1) The burden of establishing that the pursuit of particular proceedings would amount to an abuse of process is on the accused and the standard of proof is the balance of probabilities.

    (2) The grounds upon which proceedings may be stayed are

    (a) where the defendant would not receive a fair trial, and/or where it would be unfair for the defendant to be tried.

    (3) A stay will not be granted where the trial process is itself equipped to deal with the matters complained of.

16. Miss Kaul submits that this is one of those exceptional cases in which a fair trial was not possible. She says that the trial process was ill-equipped to deal with the particular problems that arose as a result of the Legal Services Commission refusing to fund appropriate enquiries. Subject to what we shall consider below (relating to cross examination of Bachan about events in India), she does not criticise the prosecution. Rather, she seeks to identify this case as one in which a third party has acted in a way which has put fairness out of reach. In Momodou [2005] EWCA Crim 117, Judge LJ acknowledged (at paragraph 54) that the activities of third parties may constitute an abuse of process making a fair trial impossible and added:

    "… if so, in an extreme case, this discretion [to stay as an abuse of process] is available to be exercised. That said, it has been pointed out time and again that difficulties, even great difficulties, created for the defence are almost always capable of being addressed by the trial process itself. This is usually achieved by evidence or agreed facts which properly inform the jury of the difficulties faced by the defendant. Then, with the benefit of the judge's directions as well as counsel's submissions before their retirement, the jury are well able to appreciate the impact of these difficulties on the proper preparation and conduct of the defence, and to take them fully into account before deciding whether the evidence demonstrates that the prosecution case has been proved. Juries have a strongly developed sense of fairness. Experience shows that they lean over backwards to see that the prosecution does not benefit from, and that the defendant is not prejudiced by, any unfairness, whatever its source. These considerations should properly inform the exercise by the trial judge of the salutary, but rarely exercised, power to halt a prosecution as an abuse."

17. As always, the ultimate question is ensuring that a trial is not unfair. That is the primary concern of domestic law as it is of Article 6 of the ECHR. Article 6(3)(b) includes among the "minimum rights" to a fair criminal trial, the right "to have adequate time and facilities for the preparation of his defence". That is an important provision but we do not consider that it adds anything to the general requirement of fairness in domestic law. It is simply a specific example of it. What we have to consider is whether the judge was wrong to refuse a stay or, even if he was not on the basis of the material before him, whether on the material now before us we ought to be concerned about the safety of the convictions in the light of any established unfairness in the trial.

18. We say at once that we do not consider that the judge was wrong either in his initial ruling or in the later ruling when he was asked to revisit the issue. Moreover, looking back from the perspective which this Court enjoys, we are entirely satisfied that the trial was fair.

19. Although the murder of which the appellants were convicted was carried out in India, in truth the controversial evidence upon which they were convicted related to events in England which were described by witnesses who gave oral evidence and were extensively cross examined. As Miss Kaul concedes, there was a great deal of material with which to cross examine them. Moreover, Bachan in particular was in a position to give evidence about events in India in December 1998 and she did so. We consider that the judge was right to attach importance to the fact that she knows the identity of the people with whom she and Surjit spent time in India and it would have been possible for those representing her to make contact with such people as potential witnesses. In fact, the defence were well able to deal with the days before Surjit disappeared. Apart from Bachan's evidence there was the photographic material including a video recording from the weddings. The defence was able to portray a picture of ostensible normality and apparent happiness. When Bachan gave evidence about visits to Amritsar and the like, the prosecution were not able to contradict her and did not seek to do so. We find the notion that increased resources might have enabled the defence to unearth hitherto unidentified witnesses who could refute the prosecution case that Surjit was murdered in the manner attributed by Sarbjit and Bhajan to Bachan to be utterly fanciful. Realistically, the person best placed to refute that account was Darshan. However, for good reason Miss Kaul decided not to seek evidence from him. She had in her possession material eventually disclosed by the prosecution which resulted in her wise decision not to call him or to rely on any evidence from him whether by way of a statement, video-link evidence or oral evidence at the Central Criminal Court. It seems to us that all the rest is speculative and unrealistic. There is no reason to believe that a longer or earlier visit to India by Bachan's solicitors would have yielded more or different material than the Metropolitan Police and others were able to obtain in the difficult circumstances which prevailed.

20. Miss Kaul also seeks to compare this case with the well-known "war crimes" trials in which public funding has enabled solicitors to make fruitful visits to Belarus and Rwanda. However, in those cases the prosecution relied exclusively on historic events in those countries and not, as in the present case, substantially on evidence of events and conversations in this country.

21. Nor do we think that there is any ground for complaint as a result of Bachan having been cross-examined about events in India or the other limited evidence that came into the case about the situation there. The prosecution did not break faith with their undertaking not to rely on much of the Indian evidence. However, that undertaking could or should not have been interpreted as fettering the cross-examination of Bachan. She had given her account of her time in India and it was inevitable that, once she had done so, she would be cross-examined about it. We find no fault in the ruling of the judge in response to the second application.

22. Miss Kaul next invites us to consider the fairness of the trial by reference not only to the way in which the abuse of process argument has been put all along but also by reference to the evidence heard by the jury to the effect that Sarbjit had imparted the essence of her important evidence to her sister and father in the weeks following Surjit's disappearance. It is the admissibility of Sarbjit's previous statements that forms the basis of the second ground of appeal. Either the evidence was correctly admitted or it was not. If it was, we fail to see how its admission can now support a ground of appeal based on the alleged unfairness of the trial.

23. It is suggested on behalf of Bachan that the fairness of the trial was also impaired by the judge not giving the jury sufficient guidance about difficulties faced by the defence in preparing for trial. The judge said this in his summing up:

    "It is a feature of this case that the events happened long ago and some of them happened far away … The fact that Surjit went missing in India does pose problems, both to the prosecution and, of course, to the defence … The Crown calls its case and the defence seek to meet it and if you think that the defence may have been prejudiced by the distance in both time and place, or either, have regard to that … "

24. He then referred specifically to the evidence of Sarbjit and Bhajan in the context of the passage of time. He extended his observations to all witnesses "whoever they may be", before adding:

    "You should also make allowance for the fact that, from a defendant's point of view, the longer the time since the alleged incident, the more difficult it may be for the defendant to answer it. Even if you believe that the delay in the case is understandable, if you decide that because of this the defendant has been placed at a real disadvantage in putting forward his case, or her case, take that into account in the defendant's favour when deciding if the prosecution has proved the defendant's guilt. Also, make allowance for the fact that the defendant's representatives may not have had the opportunity to investigate events in India as much as they would wish to have done, certainly not as well as if the events had happened within the United Kingdom, the Isle of Wight, as I mentioned in a different context, for instance."

    In our judgment those were adequate directions.

25. In summary, we are firmly of the view that this is simply not a case of abuse of process. The controversial evidence adduced by the prosecution was evidence of events and conversations in England. The defendants were able to give their response to that and Bachan was able to give her account of events in India. A wise tactical decision was taken not to rely on anything that might emanate from Darshan. In our view, the trial process, as described in Momodou (paragraph 16 above) was well able to ensure the necessary fairness and it did so. We reject the first ground of appeal.

    The second ground of appeal: Sarbjit's previous statements

26. This second ground of appeal arises as follows. After Sarbjit had been cross-examined on the basis that her evidence about the family meeting prior to the visit to India and Bachan's admission to her following the return from India was pure fabrication, the prosecution sought to re-examine her to establish that she had first given such an account to her father (Seva Singh Bath) and to her sister (Inder Hira) soon after Bachan had spoken to her following the return from India. The judge permitted re-examination on a minimal basis so as to enable the prosecution to rebut the allegation of fabrication. Later, when the father and sister were called by the prosecution, they were permitted to give evidence about the circumstances and the terms in which Sarbjit had vouchsafed this account to them. Put simply, the ground of appeal is that although fabrication had been robustly asserted it was not said to have been recent fabrication. Rather, it had been put on the basis that Sarbjit had fabricated her account from the beginning. In these circumstances, it is said, the previous consistent statements of Sarbjit were in principle inadmissible. It is further submitted that the evidence of Sarbjit was crucial to the prosecution case and that the appellants were gravely disadvantaged by the judge permitting it to be underwritten on an inadmissible basis.

27. In advance of the trial the prosecution had served a notice of intention to adduce hearsay evidence. It included reference to the evidence of Sarbjit's father and sister and explained that the application was made by reference to section 114(1)(d) of the Criminal Justice Act 2003 and that the purpose was to prove the consistency of Sarbjit's account. This provoked the formal response from the defence that they objected to the admissibility of the evidence unless it was to be on the basis of the rebuttal of an allegation of recent fabrication. Thereafter, the prosecution did not pursue the matter by reference to section 114.

28. When the prosecution reconsidered the position following the cross-examination of Sarbjit, Mr Worsley said to the judge:

    "I am going to suggest that there has emerged in cross-examination, clearly, the suggestion of fresh invention by this witness, roundabout the time she went to the police and made the statement that she did in 2005."

29. Both defence counsel disputed that the cross-examination had suggested recent fabrication or fresh invention. When Mr Rose submitted to the judge that during cross-examination it "has never been put to this witness that this is a recent invention", the judge replied:

    "It may not have been put in those terms but that is, I think, listening to it all, that is an impression, in general terms, which has been put to this witness: not that it was made up at the time – otherwise, why do we have these happy photographs – but it is something which has arisen not that long ago, in the circumstances which were being put to her; and, as long as the question is limited, as it is, to the question of when – that was the question – I really do not see any objection to it."

30. The judge did not make a formal ruling but indicated that he would permit re-examination as to when Sarbjit had first given the account and to whom, "but not what passed between the two of them, certainly not at the present time, in these circumstances". He returned to the question of the impression created by the cross-examination a little later when he said:

    "… in my view, even though it may not have been put in the clearest terms, that is the effect of the cross-examinations, both cross-examinations, is to the effect not only that it has been made up but, inevitably, in all these circumstances, has been made up recently."

31. When Mr Worsley re-examined Sarbjit the matter was dealt with as follows:

    "Mr Worsley:When did you first tell anybody in the world about what had been said about Surjit?

    A: I spoke to my dad after my mother-in-law had come back from India …

    Judge: … how long after?

    A: two or three weeks later …

    Mr Worsley: Was there any other close relative to whom you told?

    A: I spoke to my sister …

    Q: When did you do that?

    A: After, again, after two or three weeks later.

    Q: Two or three weeks later than what?

    A: When my mother-in-law came back from India.

    Q: Yes, so that takes us end of December or early January of 1999?

    A: Yes."

32. She was then re-examined about the time when she had first spoken to the police about these matters in 2005.

33. When the father and the sister came to give evidence there was some discussion between counsel and the judge as to how much detail they should be permitted to give about Sarbjit's disclosures. It is difficult to piece together precisely what happened from the transcripts that we have. It seems to have been common ground that some detail beyond simply time and place was permissible. We think it likely that, by this stage, the defence had an interest in a degree of detail in the hope that it might disclose inconsistencies which could be exploited in cross-examination. Be that as it may, in the event both the father and the sister gave accounts which extended to Sarbjit having attributed to Bachan the account of Surjit having been strangled and thrown into the river Ravi and the prior family discussion. The sister, Inder Hira, also gave evidence of how, following Sarbjit's disclosure, she had herself gone to Charing Cross Police Station in March 1999 and had spoken to an officer about these matters.

34. It is apparent from our description of the way matters developed at trial, that the application to adduce this evidence, initially in re-examination of Sarbjit and subsequently by the evidence in chief of the father and sister, was articulated purely by reference to common law concepts. Reference was made to "recent fabrication" and "late invention". No reference was made to section 114(1)(d) of the Criminal Justice Act 2003 or to any other provision of that statute, either by counsel or by the judge. We shall return to the question of whether that was the correct legal matrix. However, it is first necessary to consider whether the prosecution and then the judge were justified in their view that, whatever its intention may have been, the nature of the cross-examination of Sarbjit was such as to give to the jury the impression that what was being asserted was that she had fabricated her account in 2005 or thereabouts.

35. Sarbjit was cross-examined over several days. We accept that Miss Kaul intended to conduct the cross-examination in a way that deliberately avoided the allegation of recent fabrication and that her approach was intended to be that Sarbjit had invented her account and that she eventually gave it to the police as a result of pressure from her family. Miss Kaul explains her approach to us by saying that, having invented the account and related it to her family, she succumbed to pressure to turn it into evidence. She explains that it was not being asserted that the family pressed her to make a false statement but that they pressed her to pass on to the police the version she had given to them, without regard to whether the version was true or false. We have no difficulty in accepting that Miss Kaul and Mr Rose were trying to devise an approach to the cross-examination which did not assert recent fabrication because they were seeking to avoid the consequences of such an assertion. The question we have to consider is whether, notwithstanding their best intentions, the cross-examination as a whole gave the jury the impression (as the judge found) that recent fabrication or late invention was being asserted. We shall try to address this question without regurgitating many pages from the trial transcript.

36. Miss Kaul started to cross-examine Sarbjit on the afternoon of 14 May 2007. Midway through the morning of 16 May, there was this exchange:

    "Q: … You, from the beginning, about this matter, have been telling lies.

    A: I haven't"

37. That was entirely consistent with Miss Kaul's submission to this Court that the case being put was that Sarbjit had lied "from the beginning". However, by itself it does not make clear when "the beginning" was. Moments later in the cross-examination it was put, unequivocally, that the witness statement of 27 October 2005 was a pack of lies. Also, it was elicited that Sarbjit had met with Chief Inspector Driscoll on 30 August 2005.

38. It is important to place this in the context of the cross-examination as a whole. There were lengthy passages in which the line of questioning was plainly designed to convey the impression that between January 1999 and mid-2005, Sarbjit's relationships and demeanour within the Athwal family were relatively normal. It was common ground that she had left Willow Tree Lane for about 6 months in April 1999 but the suggestion being made on behalf of Bachan was that this was the result of family friction unrelated to the disappearance of Surjit. Many questions were asked, sometimes on the basis of contemporaneous documents, which were designed to demonstrate that Sarbjit was at odds with members of the family from time to time but that the incidents had nothing to do with Surjit. In a further attempt to establish that her relationship with Bachan in particular was relatively normal between 1999 and 2005 Miss Kaul put to Sarbjit a number of family photographs depicting apparent normality. They included photographs of a group at the airport in 2000 when Sarbjit was leaving for Canada. She is pictured in the group with Bachan and all seems well. Similarly there is a photograph taken when Bachan went out for a holiday and they are seen together in apparent normality in the USA. There are photographs of a number of apparently happy family gatherings during 2002 and a video of Gavan's birthday in 2003. Miss Kaul also elicited that Sarbjit had allowed her daughter to travel to India and stay with Darshan in 2004 and that Bachan had visited Sarbjit in hospital in early 2005. One way or another, the jury was being given the impression that Sarbjit's relationship with the Athwal family between January 1999 and early 2005 was inconsistent with her having known of a conspiracy to murder Surjit in December 1998 and having received a confession about the murder from Bachan in January 1999. In addition, a great deal of time was spent putting to Sarbjit the assertion that there was extreme animosity between Sarbjit's family and the Athwals from 1999 onwards, if not earlier. It was this animosity which was suggested to be behind the pressure that led to Sarbjit going to the police and making the statement upon which her evidence was founded.

39. When we stand back and look at the lengthy cross-examinations by Miss Kaul and by Mr Rose, we have no doubt that the judge was correct in his assessment that the effect of the cross-examinations was to leave the jury with the impression that it was being suggested that Sarbjit had fabricated her account sometime before, but by inference not very long before, she went to the police in 2005. Moreover, it is important in this context that we accord great weight to the view of the trial judge. In Nominal Defendant v Clements [1961] 104 CLR 476, High Court of Australia, (approved in Oyesiku [1972] 56 Cr App Rep 240, 247), Dixon CJ said (at page 479):

    "… in as much as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court … It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance."

40. It was incumbent upon the trial judge to take particular care on this issue but we are satisfied that, although he expressed himself briefly, he was careful and correct in his assessment. The effect of the cross-examinations had been to create an impression that Sarbjit had invented a false story in or about 2005. That was sufficient to justify the ruling in favour of the prosecution at common law. We shall return to the later evidence of the father and the sister in due course. Before doing so, it is necessary to make the following observations.

41. First, having allowed the prosecution to adduce evidence of the previous statements made by Sarbjit to her father and her sister, the judge eventually summed up this aspect of the case to the jury along what we may call traditional common law lines in that he made clear that the evidence of the previous statements went to consistency and to the rebuttal of recent fabrication, not that the earlier statements were evidence of the truth of their contents.

42. Secondly, we have to consider whether counsel and the judge at trial, and counsel in their skeleton arguments on this appeal, were correct to treat this issue as unaffected by the Criminal Justice Act 2003. In one sense, it is plain that they were not. By section 120(2) it is provided:

    "If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible."

43. That statement by itself does not deal with admissibility but with the consequences of admissibility: Regina v T [2008] EWCA Crim 484, in which Mr Justice David Clarke stated, obiter, (at paragraph 18):

    "… section 120(2) is not itself a provision governing admissibility … what the sub-section does is to regulate the use to which such evidence, once admitted, may be put. It is then admissible as evidence of the truth of its contents, not merely as evidence going to the issue of consistency."

44. To the extent that no-one had regard to this provision at trial, the advantage was with the defence. If the evidence was correctly admitted, its significance was not limited by the previous common law rule by reference to which the judge directed the jury.

45. This brings us to the more difficult question upon which we invited and received written submissions from counsel following the hearing of the appeal. The question we raised was as to the basis upon which previous statements of this kind are now to be admitted following the 2003 Act. In short, are they admitted as hearsay evidence, pursuant to section 114? Or are they still admitted pursuant to the common law on "recent fabrication"?

46. One answer to these questions is that to permit reference to a previous consistent statement so as to rebut recent fabrication is not and never has been a manifestation of the hearsay principle. The well-known statement of the Privy Council in Subramaniam v Public Prosecutor [1956] 1 WLR 965, 969 is in point:

    "Evidence of a statement made to a witness … may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."

47. It may well be that this was the assumption upon which the trial judge and counsel acted in the present case. If this is correct, the common law on recent fabrication survives because the abolition of the common law rules governing admissibility of hearsay evidence in criminal proceedings by section 118(2) does not apply to it. The structure of section 118 is to preserve eight categories of the previous law but recent fabrication is not one of those categories. On this analysis the common law of recent fabrication survives because it has been neither abolished nor preserved by section 118. It simply existed and exists outside the law of hearsay.

48. The difficulty with this analysis is section 120(2) to which we referred in paragraph 42 above. It renders the admitted evidence "admissible as evidence of any matter stated of which oral evidence by the witness would be admissible". This provision was based on the recommendation of the Law Commission, Report No 245 Hearsay and Related Topics, 1997. This raises the question: if the evidence is evidence of the matter stated, is it not, by definition, hearsay evidence? The answer to this question must lie in the other provisions of the 2003 Act.

49. Chapter 2 of the 2003 Act is headed "Hearsay Evidence" that is followed by a sub-heading "Hearsay: Main Provisions". Section 114 then provides:

    "(1) In criminal proceedings a statement not made in oral evidence in proceedings is admissible as evidence of any matter stated if, but only if –

    (a) any provision of this chapter or any other statutory provision makes it admissible,

    (b) any rule of law preserved by section 118 makes it admissible,

    (c) all parties to the proceedings agree to it being admissible, or

    (d) the court is satisfied that it is in the interests of justice for it to be admissible."

50. Section 114(2) makes further provision in relation to hearsay admitted pursuant to section 114(1)(d), to which we shall return. Section 114(3) provides:

    "Nothing in this chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings."

51. Section 115 then provides:

    "(1) In this chapter references to a statement or matter stated are to be read as follows.

    (2) A statement is any representation of fact or opinion made by a person by whatever means; and includes a representation made in a sketch, photo fit or other pictorial form.

    (3) A matter stated is one to which this chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been –

    (a) to cause another person to believe the matter, or

    (b) to cause another person to act or a machine to operate on the basis that the matter is as stated."

52. The next five sections appear under the sub-heading "Principal categories of admissibility". Section 116 concerns cases where a witness is unavailable; section 117 concerns business and other documents; section 118 deals with the preservation of certain common law categories of admissibility and the abolition of the rest; section 119 is concerned with inconsistent statements; and section 120 is headed "Other previous statements of witnesses". We have referred to section 120(2). Section 120(3)–(8) is concerned with the use of previous statements or memory refreshing. There then follow further sections under the sub-heading "Supplementary". Section 121 is concerned with multiple hearsay. The next sections are not relevant to the present discussion. Section 132 contains a rule-making power which envisages rules to make provision about the procedure to be followed and other conditions to be fulfilled by a party proposing to tender a hearsay statement in evidence, the giving of notice and the residual discretion to admit the evidence notwithstanding a failure to comply with the rules. The relevant rules are to be found in the Criminal Procedure Rules 2005. Rule 34.2 provides that a party who wants to introduce hearsay evidence must give notice in the form set out in the Practice Direction to the court officer and all other parties. Rule 34.3 provides that the prosecutor must give notice of hearsay evidence in the Crown Court not more than 14 days after the proceedings are committed or transferred to the Crown Court. Rule 34.4 deals with the giving of a hearsay notice on behalf of a defendant. Rule 34.5 provides for the giving of a notice opposing the introduction of hearsay evidence. Rule 34.7 then provides that the court may dispense with the requirement to give notice, allow notice to be given in a different form or orally or shorten or extend a time limit.

53. What, then, is the effect of these provisions so far as "recent fabrication" is concerned? Once a previous statement is admitted to rebut a suggestion of fabrication, section 120(2) is clear. The statement "is admissible as evidence of any matter stated". That is the same language as is used in section 114(1). The basic provision for the admissibility of hearsay evidence is that "a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated" subject to certain conditions. In our judgment, all this leads inexorably to the conclusion that a previous statement which is admitted to rebut a suggestion of fabrication is admitted as admissible hearsay under the regime of the 2003 Act. It is admissible as evidence of any matter stated because section 114(1)(a) provides that it is so admissible "if … any provision of this chapter … makes it admissible" and section 120(2) makes it admissible for that purpose. That does not mean that it must always be admitted. Section 114(3) continues to permit its exclusion on other grounds – for example, pursuant to section 78 of the Police and Criminal Evidence Act 1984, in so far as the evidence is sought to be relied upon by the prosecution.

54. The procedural rules to which we referred in paragraph 52 will not always be susceptible to compliance in these circumstances. Generally, it will not be until after a witness has been cross-examined that the need to rebut the allegation of fabrication will be realised. It is possible that the matter may be put in issue in, for example, a defence statement but we do not consider that this would be usual. All that can be said is that in many cases compliance with the requirements of timely and formal notice will simply not be possible and it will be for the trial judge to satisfy himself that overall fairness can be achieved by the exercise of his discretion and by his powers of dispensation under Rule 34.7.

55. We now have to return to the present case. It follows from the above analysis, that, in our judgment, the judge ought not to have approached the matter on a purely common law basis but ought to have considered it by reference to section 114 of the 2003 Act. The next question is whether his failure to do so impacts on the safety of the convictions. We are entirely satisfied that it does not. It seems to us that any judge who was permissibly satisfied that, in the circumstances of this case, the prosecution should be permitted to re-examine Sarbjit about her previous statements to her father and to her sister would inevitably have been equally satisfied if he had considered the matter by reference to section 114. This was particularly so given that the father and the sister to whom the previous consistent statements were made were themselves to be called as prosecution witnesses and were available for cross-examination. Thereafter, as we observed (paragraph 41 above), the approach of the judge was advantageous to the defence in that in his direction to the jury he did not give the evidence the status conferred upon it by section 120(2).

56. To the extent that they were giving evidence about what Sarbjit had told them had been said by Bachan, the evidence of the father and the sister raised potential issues about multiple hearsay and the effect of section 121. However, in view of the direction given by the judge as to the relevance and limited nature of the evidence – that it simply went to consistency – those issues did not and do not really arise. Moreover, as all the relevant people – Sarbjit, her father, her sister and Bachan – gave evidence at trial, we believe that the judge, if he had considered the 2003 Act, would have found the evidence to have been admissible as multiple hearsay in the interests of justice pursuant to section 121(1)(c).

57. Finally, we return to the evidence of the father and the sister. Here, the additional complaint is made that, whereas the prosecution were only permitted to re-examine Sarbjit on a minimal basis to establish when and to whom she had first given her account, without any detail, when the father and the sister gave evidence they did go into further detail. This was preceded by some submissions from counsel which have not been fully transcribed and a very brief ruling by the judge. By that time, the jury had the minimal evidence of Sarbjit in re-examination but, of course, the defence had not been able to cross-examine her thereafter. We have the benefit of counsel's note of the submissions prior to the evidence of the father and the daughter. In a sense, the matter was two-edged from both sides' point of view. The prosecution wanted more detail so as to underwrite the consistency of Sarbjit's account going back to January 1999 and the defence must have had at least a hope that if some detail was given, it might assist them to establish inconsistency in her account. In the event, he allowed the witnesses to give evidence on what we might describe as a "gist" basis. If their evidence went slightly further than that, we do not consider that any injustice was done, particularly in the light of the judge's direction to the jury on the status of the evidence. The father was robustly cross-examined, not least about the suggestion that he had put pressure on Sarbjit to go to the police to say "bad things about the Athwal family". The sister's evidence was unchallenged. Neither defence counsel cross-examined her. This led Mr Worsley to seek confirmation that it was not going to be asserted later that the witness was not telling the truth about anything. He received that confirmation in front of the jury. In our judgment, no injustice was done.

58. We add this observation. It is noticeable that section 120(2) refers to fabrication but without the temporal qualification "recent". Again, this replicates the recommendation of the Law Commission. The omission of the qualification may be a welcome simplification. However, it is clear that the Commission did not recommend a wholesale departure from the previous approach. Indeed, it concluded that "the circumstances in which this minor exception can be used are best left alone" (Report, paragraph 10.45). On the other hand, we do not consider that the common law label of recent fabrication is to be confined within a temporal straitjacket. This case, and others before it, demonstrate that "recent" is an elastic description, the purpose of which is to assist in the identification of circumstances in which the traditional rule against self-corroboration, sometimes referred to as the rule against narrative, should not extend to the exclusion of a previous consistent statement where there is a rational and potentially cogent basis for its use as a tool for deciding where the truth lies. The mere fact that the witness has said substantially the same thing on a previous occasion will not generally be a sufficient basis to adduce the previous statement when the truthfulness of his evidence is put in issue. There must be something more – for example, the absence on the earlier occasion of a factor, say personal dislike, which is being advanced as a possible explanation for the falsity of his evidence in court. However, when circumstances have changed in such a way, it may not matter that they changed last week, last month or last year, provided that there is a qualitative difference in circumstances, but substantial similarity between the two accounts. There is no margin in the length of time. The touchstone is whether the evidence may fairly assist the jury in ascertaining where the truth lies. It is for the trial judge to preserve the balance of fairness and to ensure that unjustified excursions into self-corroboration are not permitted, whether the witness was called by the prosecution or the defence.

59. To summarise our conclusions on the hearsay grounds of appeal: (1) We consider that the judge was justified and correct in his assessment of the way in which the cross-examination would have been viewed by the jury. (2) His approach to the admission of the previous statements both in re-examination of Sarbjit and the evidence in chief of the father and the sister would have been a faultless exercise at common law. (3) However, he ought to have approached the matter by way of section 114 of the 2003 Act. (4) If he had done so, we are sure that he would have reached the same conclusion and rightly so. (5) His non-attention to section 120(2) became advantageous to the defence.

    Conclusion on appeals against conviction

60. It follows from what we have said that we do not consider that the safety of these convictions is in doubt. Neither the grounds of appeal which we have considered under the heading of abuse of process nor those relating to hearsay evidence finds favour with us. We therefore dismiss both appeals against conviction.

61. This case demonstrates the extent to which Chapter 2 of Part II of the 2003 Act is now a comprehensive code on the admissibility of hearsay in criminal proceedings. The common law has been abolished except where it has been expressly preserved (section 118) and, in at least one situation, what in the past was not strictly hearsay now is. It seems to us that it would be helpful if the leading practitioners' textbooks were now to reflect this.

    Appeals against Sentence

62. Both appellants have leave from the single judge to appeal against sentence. Both were sentenced to life imprisonment. In the case of Bachan the judge fixed a minimum term of 20 years, less 191 days spent on remand, to be served before she could be considered for parole. In the case of Sukhdave the minimum term was 27 years, less 321 days served on remand.

63. These offences having been committed prior to 18 December 2003 sentence fell to be passed under the transitional provisions explained in R v Sullivan and others [2005] 1 CR APP R(S) 67, [2004] EWCA Crim 1762. It is accepted therefore that the judge had to follow the guidance given by the letter of Lord Bingham CJ, in his letter of February 1997, which recommended a starting point of 14 years for what he called an "unexceptional" murder. The judge was plainly alive to his obligation to treat this as the starting point for his assessment of the minimum term.

64. The aggravating features which were correctly identified by the judge were that this was a planned killing and one which was intended to result in gain from the insurance policies taken out on the life of the deceased (albeit this was never achieved). There was also a cover up involving deceit, concealment of the body which was lost to Surjit's blood relatives, and the fact that in the cruellest breach of trust, as the matriarch of the family, Bachan had removed the deceased from her role as mother of her two children.

65. The only mitigating feature that could be identified common to both appellants, though it was of very little weight, was that neither had previous convictions. So far as Bachan was concerned the main mitigation was her age. She was 70 at the date of sentencing and had suffered some ill health in the form of a mini-stroke in the course of the trial, from which she had rapidly recovered. Medical evidence before the sentencing judge and before this court indicates that she has no greater problems than would be expected in terms of her health when compared with the average woman of her age. Also in her case there is prayed in aid the fact that she cannot speak or read English. Therefore the effect of a prison sentence upon her is made more severe than her English speaking equivalent.

66. Mr Rose referred us to the case of R v Abdul Haq [2005]EWHC 304 (Admin) where Stanley Burnton J, set a minimum term under section 276 of the Criminal Justice Act 2003 in the case of a defendant who had murdered his sister and her lover, purporting to act in defence of the family honour at the urging of his father. He had been sentenced to life imprisonment in December 1991. The trial judge had recommended a minimum term of 20 years, the Lord Chief Justice 15 years and the Secretary of State 16 years. Stanley Burnton J ordered a minimum term of 16 years which was four years greater than the "tariff" in operation at the date of sentencing, namely 12 years as set Lord Lane CJ.

67. The position of Bachan is indeed a difficult one to assess in sentencing terms. Lord Bingham regarded age as a relevant mitigating factor "where relevant to physical capacity on release or the likelihood of the defendant dying in prison". In actuarial terms it is indeed likely that Bachan will die within the minimum term set by the judge. That factor together with the grave cultural difficulties she will encounter within the prison system persuade us that the minimum term in her case was manifestly excessive and that we should replace it with a term of 15 years.

68. So far as Sukhdave is concerned, if his minimum term is left at the level fixed by the judge there will be a very considerable problem of disparity, which would be difficult to justify particularly in view of the fact that Bachan was the instigator of this murder. It is also the case that the aggravating features which the judge correctly identified have taken this minimum term up towards the 30 year starting point which Lord Bingham identified as appropriate for very rare cases.

69. For those reasons only we would reduce the minimum term in his case from 27 years to one of 20 years.

70. We therefore allow these appeals, quash the minimum term in each case, and replace that in the case of Bachan to 15 years and that in the case of Sukhdave to 20 years. In each case the time specified by the Judge as having been spent in custody on remand shall be deducted from the term set.

    Confiscation

71. At the date of Surjit's murder, 88 Willow Tree Lane Hayes was registered in the names of Sukhdave, Surjit, Hardave Sing Athwal (Sukhdave's brother) and Sarbjit (Hardave's wife). It was accepted that these last two had no equitable interest in the property.

72. In March 2004 the property was fraudulently transferred into the names of the two appellants. During the trial Sukhdave admitted that he had forged Surjit's signature on the documents necessary to effect this transfer. On 20 March 2004 a mortgage was then taken out on the property in the name of the two appellants.

73. On 15 March 2007 the property was sold for £250,000 and after the mortgage and accumulated arrears were discharged the net proceeds of sale, £81,794.49, were paid into a bank account in the name of Bachan. Nine days later £80,000 was transferred out of this account and into an account held in the name of one of her daughters, Kalwant Kaur Bal. On the same day that money was paid out of that account £27,000 was paid into a different account in the name of Kalwant, most of which has been moved into accounts in the names of her two children. £50,000 was paid into an account in the name of Ajmar Kaur Bhinder, another daughter of Bachan. Of this sum £28,000 was then transferred into other accounts in the name of Mrs Bhinder and £15,000 was sent to the USA. Two other recipients received amounts totalling £7,000.

74. The prosecution initiated confiscation proceedings under section 71 of the Criminal Justice Act 1988, in support of which Detective Constable Johnstone made a statement dated 18 September 2007. The facts he deposed to and which we have set out above have never been disputed. He contended that the extent of benefit was the gross purchase price received namely £250,000 and that the amount that might be realised against each of the appellants was one half of the net proceeds namely £40,897.25, which was the sum that the prosecution sought by way of a confiscation order.

75. In his undated statement in response Sukhdave was vague and unspecific, stating that though he had forged the deceased's signature and thus obtained the transfer of the title, and while he knew of the sale, he did not "know the full details" or "the exact details of the sale or the amount of equity that was realised. I also do not know where the money went from the sale, but it certainly did not pass through any account I hold". He made the point that he was in prison at the time of the sale. He accepted that his share of the equity should have been the sum we have stated above. This undated statement was evidently made some time in October or November of 2008.

76. The matter was listed "For mention (Defendant to attend)" before the judge at 10.15 on 21 January 2008 when both appellants were represented, Sukhdave by two counsel. Both appellants accepted the benefit figure of £125,000. Both accepted therefore that it was for them to show on the balance of probabilities, if such was the case, that the realisable assets were at some lower level. Bachan conceded that the children of the deceased were entitled to the share of the net proceeds attributable to her namely £40,897.25, and there was discussion as to how that could be achieved. A confiscation order in that sum was made against her with a view to it being transferred by way of a compensation order in favour of the children, whose mother had been murdered, and Bachan has not sought to appeal that decision.

77. So far as Sukhdave's position was concerned, Mr Rose was in effect arguing that no confiscation order could be made as he did not have the money, because his sisters had taken it without his knowledge and had dissipated it. The submissions were lengthy, the whole application in the event taking a full half day to resolve. Mr Rose argues that he was expecting this to be treated as a directions hearing and he anticipated a further hearing. But we note that this was already the second time the confiscation issue had come before the court, there having been a directions hearing on 10 December 2007.

78. At all events Mr Rose accepts that, on that date, the burden was on his client to prove he was not in a position to meet the claimed confiscation order. The judge, as Mr Rose put it, was probably becoming exasperated, and in our judgment, if that was the case, it is hardly surprising since Sukhdave had had at least two months in which to prepare and present evidence to show that his apparent share of the proceeds had passed beyond his reach, and that he could not recover the money from the sisters into whose accounts it had gone. Mr Rose was arguing that it could be seen "from the evidence already adduced by the Crown that the sisters had had this money and have dissipated it". The judge replied that he did not know whether that was the case and that the defence had the burden of providing him with the material.

79. Mr Rose then said that he was expecting to see the sisters at court that morning but they were not there. There was no written evidence from them and nothing was produced (either to the Judge or to us) to show that they had even been asked to attend, let alone what they would have said if they had done so. When he saw the way the wind was blowing Mr Rose then applied for witness summonses for those witnesses to be called. The judge regarded this as a rather desperate last minute application and refused it.

80. In effect therefore Mr Rose was seeking to adjourn the matter further, in circumstances where his client had utterly failed, after his initial delivery of an extremely vague statement in response, to attempt to discharge the burden on him of showing that he had no realisable assets notwithstanding the admitted level of benefit.

81. At no time, it is to be noted, did Mr Rose ask that his client give evidence to the judge. It seemed to be and to remain his position that he simply knew nothing about what had happened to this money.

82. In giving his ruling that same day the judge said that he considered that Sukhdave was trifling with the court, that the money had plainly been distributed amongst various family members and there was a clear indication that the two defendants were manipulating the money as best they could to avoid the consequences of the conviction for murder. Accordingly he made a confiscation order against both defendants in the amount suggested by the prosecution.

83. Mr Rose complains that it was incumbent on the judge as a matter of law to allow his client to call evidence and complains that the treatment of Sukhdave was unfair. We cannot accept those submissions. In our judgment the judge was plainly entitled to find that the court was being manipulated by the attitude Sukhdave was taking to the confiscation proceedings. He could have added that his credibility as a witness had been gravely compromised by the many dishonest actions he had taken since his wife's disappearance, as our summary of the undisputed facts of the case shows.

84. The end result is that which Sukhdave claimed to want to achieve, namely that both appellants paid the confiscation orders in full on 28 February 2008, those funds coming from monies held in the children's bank account and a loan raised by Sukhdave's sister, who had received the money, to pay the balance. That was paid into the relevant magistrates court and on 16 May 2008 the judge made compensation orders in favour of the children, to be held by a solicitor appointed by the local authority for the children. The appellants were ordered to pay £20,448, respectively, to each of the 2 children to be paid out of the confiscation order. The result that the parties said they wanted to achieve has therefore been achieved, albeit after much expense of time and money.

85. The procedure adopted by the judge was appropriate and fair in the circumstances, given the permissible conclusion he reached as to the attitude of Sukhdave to this aspect of the proceedings. The appeal against the confiscation order must therefore be dismissed.