England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Southwark Crown Court
MR JUSTICE SIMON
T20097396

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/05/2011

Lord Justice Hughes:

1. In February 2010 the applicant was convicted by a jury of the offences of misconduct in a public office and doing acts with intent to pervert the course of justice. He was at the time a very senior serving police officer. The allegation was that in the course of a minor and wholly personal dispute with a civilian he arrested the man for threatening behaviour when he knew there was no justification for doing so, thus abusing for personal reasons the considerable power given to him for public purposes.
2. After conviction, grounds of appeal were lodged which complained of the admission of certain evidence at the trial. Those were not properly arguable, were rejected as such by the single judge, and are now recognised to have nothing in them. However, the defendant now relies on material going to the general credit of the other party to the personal dispute, who was, inevitably, a principal Crown witness at the trial. It is said that it is material which was not available at trial and which is of such a nature that it renders the conviction unsafe.
3. Very properly, the Crown does not dispute that the material put before this court significantly discredits the witness in his general standing. It contends, however, that the conviction is nevertheless safe. It submits:

i) that the important part of the material either was, or could easily have been, available to the defence at the trial and that the defendant must have made a decision either not to investigate it in detail or not to deploy it; and/or

ii) that the conviction does not really depend on the evidence of the discredited antagonist, but is soundly based on other evidence which sufficiently shows that whatever may be the general character of the antagonist, he was telling the truth about what happened on the occasion in question.

The case at trial

4. During the last few weeks of 2007 and the first part of 2008 there were serial discussions between the defendant, a commander in the Metropolitan Police, and his antagonist, an unemployed man aged 25 who went by the name of Waad Al-Bhagdadi (or sometimes 'Milad'), about the creation of a personal website for the defendant. There was no dispute that the defendant decided to have the website, nor that he and Al-Bhagdadi met and discussed setting it up, and it was agreed that the defendant frequently supplied Al-Bhagdadi with material which he suggested ought to appear on it. There had been an earlier disagreement resulting in a break in discussions between about mid February and mid May, but they had otherwise lasted from the end of November 2007 until summer 2008. There arose a dispute as to the terms of the discussions and as to what, if any, agreement had been reached. In particular, Al-Bhagdadi's case was that the defendant had agreed to pay for the website, whereas the defendant said that he had not.
5. On the evening of 18 July 2008, the defendant drove with his wife to an Iranian restaurant in Hammersmith Road which he patronised from time to time and where he clearly knew very well the owner, Mr Eshragi, and some of his staff. The couple arrived at about 21.15. The defendant was either on duty or had been; at all events he was in full uniform initially, then in shirtsleeves from a little after arrival, and plainly visible for the senior policeman he was. They had a meal at a table inside the restaurant and for some of the time the defendant sat at an outside pavement table speaking to various others who came and went. They were still there nearly two hours later at about 23.00 when they were ready to leave and were escorted to their car by Mr Eshragi. Whilst they were sitting in the car about to leave Mr Al-Bhagdadi arrived at the restaurant. It is clear that he too knew the owner and some of the staff; apart from being a patron, he had devised a website for the restaurant. On his arrival, there ensued an argument between him and the defendant, conducted in part through the open passenger side car window and in part on the pavement at the front nearside of the car when the defendant got out of the driver's seat. The row was about the website, payment, and whether the defendant had or had not let down Al-Bhagdadi by not responding to his calls. Each afterwards said that the other had been the more aggressive. There was no suggestion of any physical contact between the men.
6. This argument came to an end, having lasted something less than two minutes. The defendant went back to his car and Al-Bhagdadi went into the restaurant and sat at a table in the back corner where he spoke to one of the waiters. The defendant did not leave. He emerged from his car again and re-entered the restaurant, visibly carrying in his hand either a radio or a telephone. He ordered Al-Bhagdadi to leave, and returned to his car. Al-Bhagdadi did not want to leave. After speaking to Mr Eshragi, Al-Bhagdadi did leave. By then it was three or four minutes since the defendant had ordered him out, but the defendant was still sitting in the car outside. Al-Bhagdadi turned left along the pavement, without going to the car. Very shortly after he did so, the defendant's wife got out of the car and went to sit at one of the pavement tables, leaving the defendant sitting in his car and now, clearly, no longer on the point of driving away home. A timed recording showed that near enough simultaneously with Al-Bhagdadi leaving and the defendant's wife leaving the car, Al-Bhagdadi made a mobile telephone 999 call. He used it to complain, inappropriately for an emergency line but unmistakeably, that he was being bullied by the defendant, whom he named. That call began at 23.12.34.
7. The defendant remained in the car until 23.19.50. In the intervening seven minutes or thereabouts he spoke to Mr Eshragi, and his wife also came to the car at one point. Meanwhile, Al-Bhagdadi had not altogether left the vicinity. It may be that he was still in sight, at or near the corner with Avonmore Road to the left, about 20 metres along the pavement. He must have been using his telephone, because he was still making the 999 call. When at the end of this seven minute period the defendant drove away from the front of the restaurant he admittedly did so having determined to arrest Al-Bhagdadi under section 5 Public Order Act 1986, that is to say for threatening, abusive or insulting words or behaviour likely to cause another person harassment alarm or distress. He stopped the car, got out and confronted Al-Bhagdadi, by now around the corner in Avonmore Road and still on the telephone to the emergency operator. He arrested him.
8. Events at and outside the restaurant were recorded on its closed circuit television. That plus the recording of the 999 call meant that the bare facts which we have thus far recounted were largely undisputed at the trial.
9. It was not in dispute at the trial that Dizaei had got out of his car and gone back inside the restaurant specifically to order Al-Bhagdadi out. It was common ground that there came a time when Mr Eshragi asked Al-Bhagdadi to leave. There was an issue whether this was because Eshragi was anxious to placate Dizaei or Dizaei was simply helping out Eshragi with no personal input into his intervention, but the resolution of this issue did not depend entirely on Al-Bhagdadi's evidence.
10. The camera did not show what if anything Al-Bhagdadi was doing after walking away from the front of the restaurant, and during his 999 call, nor did it show what passed between the two men when the defendant drove up to him, got out of the car, and arrested him.
11. It was Dizaei's case at trial that as Al-Bhagdadi went away towards the corner of Avonmore Road he called out a threat to 'sort him out' or 'beat him up', gestured offensively towards him from a distance, stood laughing and speaking with patrons sitting outside the next door restaurant, and having gone around the corner looked back several times. This, he said, led to him deciding to arrest him. Al-Bhagdadi's evidence was that he had stayed in the general area of the corner because he was telephoning his complaint to the police, that he had looked back round the corner once because he heard the defendant shout a threat at him, but that he had himself neither shouted nor gestured offensively.
12. There was a further dispute at the trial as to exactly what happened when Dizaei arrived, in his car, in Avonmore Road, confronted Al-Bhagdadi and arrested him. Dizaei's case was that Al-Bhagdadi pushed him hard in the chest with the flat of his hand and, when told he was being arrested, poked the defendant once in the abdomen with a sharp object which he said later turned out to be a shisha pipe mouthpiece. Al-Bhagdadi denied doing either thing. By the time of these events, if they occurred, the decision to arrest Al-Bhagdadi had, however, admittedly already been made. There was no doubt that when Dizaei arrived to arrest him, Al-Bhagdadi was still on the telephone to the emergency operator, nor that Dizaei took the telephone from him and told the operator that he was making an arrest and wanted assistance.
13. There were important other strands to the case for the Crown.

i) In the immediate aftermath of the arrest, the defendant completed an 'Evidence and Actions Book' ('EAB') with a longhand account of the incident. This account was arguably inconsistent in some significant respects with the facts, and indeed with the evidence which he later gave. It made no reference at all to the defendant's connection with, or use that night of, the restaurant. It contained no mention of the defendant going into the restaurant to order Al-Bhagdadi out, but rather asserted that he had noticed the other being refused service. It recorded the assertion that it was only as Al-Bhagdadi was confronted in Avonmore Road and was being arrested, indeed only after he had pushed the defendant in the chest, that he 'appeared to call 999'. Whilst the defendant told the jury that he did not see the object with which he said he was poked, the EAB asserts that he had looked down just before being poked, and had seen what appeared to be a knife.

ii) Acting Inspector Warwick gave evidence that at the scene the defendant spoke of having been 'threatened' (not struck) with the pipe mouthpiece. Further he said that there was quite a number of people milling about at the scene and that he (the Acting Inspector) announced when standing close to the defendant that the officers should get the names of potential witnesses; at that, he said, the defendant said something in Farsi and almost everyone dispersed, with no attempt by the defendant to ask them to stay.

iii) The investigating police officers gave evidence that the defendant told them that he had previously received voicemail calls and/or messages from Al-Bhagdadi which were either threatening or abusive. They said that they asked him to preserve them, but that they were later told that he had unfortunately deleted them. The defendant's case at trial was that the messages were better described as unpleasant than as threatening but that in any event his calls were routinely deleted for justifiable reasons.

iv) The senior officer in charge, Detective Superintendent Cassidy, gave evidence that about a fortnight after the incident the defendant initiated a private conversation with him, said that Al-Bhagdadi had, so he understood from community leaders, confessed and expressed remorse, and asked obliquely but unmistakeably for the prosecution to be dropped. The defendant's case was that the Superintendent had comprehensively misunderstood the conversation.

v) The medical examiner who inspected the defendant's torso on the night of the incident gave evidence of two (not one) areas of inflammation on the abdomen. She did not think that either was consistent with impact from the pipe mouthpiece. She said that the defendant appeared to be trying to stretch the skin during her examination. She concluded that the marks were more likely to be self-inflicted, for several reasons relating to their appearance and the underlying tissue, which she gave. She was, however, contradicted, at least so far as interpretation of the marks went, by an experienced consultant pathologist called by the defence, whose opinion differed, and it was contended that she had apparently taken into account non-medical evidence in arriving at her conclusions.

14. The foregoing summary is not a complete narrative of the issues and arguments at trial, but illustrates the fact that there were aspects of the Crown case which did not depend on the evidence of Al-Bhagdadi. Also independent of Al-Bhagdadi, and perhaps more importantly, was the contemporaneous evidence of the CCTV and recorded 999 call.

The 'fresh' credibility material

15. The material affecting Al-Bhagdadi's general reputation and credibility which is put before us falls into two parts:

i) material relating to his origins and entry into this country; and

ii) material relating to benefit claims.

16. At the time of the trial Al-Bhagdadi was understood to be of Iraqi birth and his birthday to be 1 June 1985. He was routinely led to state those facts when he gave his evidence, and he incidentally confirmed Iraqi birth when the Judge later made an enquiry about his languages. He also used the name Milad, which was the name by which the defendant knew him. The following facts are now known:

i) he was not born in Iraq but in Iran, where he lived throughout his minority; his family was indeed Iraqi but had left Iraq for Iran to avoid the regime of Saddam Hussein not long before he was born; they were not citizens of Iran but were allowed to live there; in Iran they used the family name Maleki, which was used by part of his father's extended family;

ii) his correct date of birth is 16 June 1983, not 1 June 1985;

iii) his mother came to the UK before he did and was granted the right to remain here; she said she came directly from Iraq and she also understated his age by two years so that he should appear still to be a minor when she (and he) applied for permission for him to join her; he endorsed that false place and date of birth and en route for the UK via Syria obtained Red Cross identity papers which repeated the false date, using a bogus document obtained in Damascus to do so.

17. It does not, we think, follow that 'Al-Bhagdadi' is properly described as a false name. Baghdad does appear to be the place of the family's origin. No doubt there was a good deal of movement between Iran and Iraq at the time in question, and probably much of it unavoidably informal or unofficial. Nor does it appear to follow that Al-Bhagdadi has made false statements to English immigration authorities to obtain entry or the right to remain, and it seems that he was not interviewed and thus did not, except insofar as he presented the Red Cross document describing himself as two years younger than he was. Nor is it clear that he would not in any event have been granted the right to join his mother, who had been accepted as a refugee. What this material does, however, show, is that he obtained a false document in Damascus to assist his entry to the UK by understating his birth, that he allied himself with his mother's account that the family came directly from Iraq rather than after spending many intervening years in exile in Iran, and that he maintained those false details throughout, including on oath before the jury.
18. This information as to origin is accepted to be substantially new. It was not known at the time of the trial, nor is there any suggestion that the defence ought to have discovered it.
19. As to benefit claims, the following facts are now known and were accepted before us:

i) Al-Bhagdadi's father's name was Sabree Al-Bhagdadi;

ii) Sabree died in March 2006, it would seem whilst on a visit to other members of his family in Sweden; Al-Bhagdadi attended his funeral there;

iii) when he died, Sabree was entitled to, and was drawing, pension credit of something over £100 per week; after his death, this pension continued to be paid until January 2010; until July 2007 it was paid into a Halifax bank account in Sabree's name and drawn out via cashpoint machines; the bank was at some stage given an address for Sabree in Hendon where he never lived but an acquaintance of Al-Bhagdadi (or the acquaintance's partner) did; Al-Bhagdadi is shown to have used that account in 2009/2010 and has admitted using it "for family purposes"; in July 2007 a request was made to pay the pension instead to a Barclays bank account in Al-Bhagdadi's own name, which account he has admitted he used; the total sum paid as pension after Sabree's death approaches £20,000;

iv) in January 2008 Al-Bhagdadi made a claim for carer's allowance on the assertion that he was caring for his father Sabree; such allowance was thereafter paid into the Barclays account until October 2010; Al-Bhagdadi has admitted to police officers that he was a party to this claim, made after the death of his father; the sums paid were between £40 and £50 per week;

v) in April 2008 an application was made in the name of Sabree for a single loan payment from the social fund; it was granted in the sum of £315 which was paid to the Halifax account referred to at (iii) above;

vi) when Sabree died he was in receipt of attendance allowance; this allowance continued to be paid until February 2011 at the rate of between £60 and £70 per week; it was paid into the Halifax account referred to at (iii) above.

It was accepted before us that there is a strong case of serial benefit frauds by Al-Bhagdadi, and of a less than completely frank account of them given when taxed subsequently by police officers in the course of pre-appeal investigations.

20. The issue before us has been whether this material is fresh, or was available and known to the defendant at the time of his trial but deliberately not pursued. If it were the case that a deliberate decision were made at the trial not to adduce the evidence, or to pursue a known possibility of doing so, then the material put before us would not afford the defendant any ground of appeal, and we should decline to receive it. There is ordinarily only one trial, and it is the duty of all parties to lay before it all the relevant evidence at their disposal on which they wish to rely. This court has power under section 23 of the Criminal Appeal Act 1968 to receive evidence which was not before the court of trial and to consider whether or not it provides grounds for saying that the conviction is unsafe. But it will not ordinarily do so, and a conviction will not ordinarily be unsafe, if it is sought to rely here on evidence which a defendant chose not to rely on before the jury. Such a strategic decision as to whether a line of possible defence is or is not to be pursued often has to be made at a trial. There are numerous reasons which may lead to a decision not to do so; that an attempt to pursue it may trigger a response from the other side which it is preferred to avoid is only one example. It is apparent that in this case the very experienced team conducting the defence was alert to this issue. We have accordingly investigated with some care the question whether the benefit evidence was available but was not pursued for good reason.
21. The evidence of Mrs Dizaei, called before us, demonstrated that after the trial she made the enquiries which uncovered the material about Al-Bhagdadi's origins, which we have no doubt is properly described as new or fresh. Her enquiries included travelling to Iran. Her evidence also revealed this. The acquaintance with the Hendon address to whom we have referred at paragraph 19(iii) above was also known to the defendant and his wife personally. Well before the trial he gave them some information alleging that Al-Bhagdadi had asked him to present himself to the Halifax bank as 'Sabree Al-Bhagdadi' in order to activate an account. Thereafter bank statements had been received at the Hendon address, and the acquaintance gave a few sheets of them to the defendant, relating, she thought, to early 2009. Mrs Dizaei's evidence to us was that it was not known that Sabree was the father of the witness Al-Bhagdadi, nor that he was by then dead. She discovered that he was the father, she said, at the trial. She discovered when he had died, she said, only when she went to Iran afterwards and investigated the family.
22. Making all proper allowance for the difficulties of her speaking through an interpreter, we did not find the evidence of Mrs Dizaei wholly satisfactory. She had previously made a statement which suggested that she and her husband had been told before the trial that Sabree was dead; this she told us was a mistake. She told us that when she and the defendant were given whatever information they were, he telephoned his solicitor to ask what could be done about it. But her evidence to us left unanswered questions as to why the information which she and the defendant were given was not followed up. Nevertheless, a recording of a recent (ie post-trial) conversation between Mrs Dizaei and the informant tends on balance to support her assertion that she was at that later stage eliciting the information as to Sabree's death.
23. At the trial, it is apparent that leading counsel for the defendant was in possession, amongst no doubt a large amount of other material, of these few sheets of bank statements. He was also instructed by the defendant that there was a suggestion, possibly from the restaurant owner, Mr Eshragi, that on some previous occasion Al-Bhagdadi had been in possession of a bank card which had not been accepted. The transcript discloses a delicate and largely exploratory cross examination of Al-Bhagdadi on the subject of bank cards, but it made very little progress. Counsel was able to ask Al-Bhagdadi who Sabree was, and elicited the information that he was the father of the witness, and either was, or had been, in Sweden. His death was not volunteered, but no question directly requiring that information was asked and it is not clear whether the witness was using tenses accurately. A question whether Sabree had received attendance allowance when in England, founded no doubt on the bank statement sheets in counsel's hand, elicited the answer yes. The witness was asked to allow his bank records to be checked for the issue of cards; this was done and an admission duly made as to the date of the issue of his Barclays card. But the topic went no further.
24. Mr Mansfield QC tells us that he had no instructions that Sabree was dead. We accept that information given to the court by counsel. It is, moreover, we think apparent from the cross examination. We have asked ourselves the further question whether the defendant himself may have decided not to pursue this avenue of enquiry, thus leaving counsel uninformed of what was known. It is certainly difficult to see why further enquiry was not made once the defendant and his wife had the information they had, which comprised not only the existence of the bank statements, but also that Al-Bhagdadi had asked the acquaintance to pose as Sabree at the bank. There is no trace in the cross examination of that latter piece of information having reached counsel, but we recognise that the acquaintance was a potentially unreliable source and was not available as a witness; it is possible that in those circumstances it was thought that no progress could usefully and properly be made in cross examination. There was no evidence before us from the defendant himself and there has been no waiver of privilege such as would put before us the instructions which he gave to his lawyers. All that said, we are sure that the only proper conclusion is that we cannot be satisfied that the information now available about the benefit claims, stemming from the vital fact that Sabree was dead, was known to the defendant, nor that he made a deliberate decision not to investigate it. We do not believe that it is likely that he alone elected to keep such information from his lawyers, or set unaided about the calculation of any likely riposte from the Crown. It is necessary to caution oneself, in this court, about the dangers of concentrating with hindsight on what would, in the preparation for trial, have been one of a great number of potential lines of enquiry, not only about Al-Bhagdadi but about many other topics. The manner in which the present information emerged, not even in the initial grounds of appeal but only some time later, confirms our conclusion.
25. It follows that we receive the benefit evidence, as well as the family origin evidence, as fresh.

The safety of the conviction

26. Mr Mansfield invites us to say that the fresh evidence might have affected the jury's conclusions, and that that means that the conviction is unsafe. We do not agree that it is as simple as that. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. The line between the case where this court can properly be satisfied of the safety of a conviction notwithstanding fresh evidence and the case where it cannot is no doubt sometimes a fine one; the decision is unique to the facts of each case. The question for this court is, however, whether the conviction is safe and not whether the defendant is guilty. This court does not re-try the defendant and cannot do so, because it does not hear the whole case. Ordinarily it hears no evidence at all, and when it does, as here, it is limited to fresh material. This court is not, therefore, in a position to substitute itself for the jury. En route to deciding whether the conviction is soundly based (ie safe) this court will consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. In many cases, it is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypoethesi the jury has not seen it. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty. We agree with the analysis of Pendleton [2001] UKHL 66; [2002] 1 Cr App R 34 and Dial [2005] UKPC 4; [2005] 1 WLR 1660 made by this court in Burridge [2010] EWCA Crim 2847 (see paragraphs 99 – 101). Where fresh evidence is under consideration the primary question "is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury." (Dial). Both in Stafford v DPP [1974] AC 878 at 906 and in Pendleton the House of Lords rejected the proposition that the jury impact test was determinative, explaining that it was only a mechanism in a difficult case for the Court of Appeal to "test its view" as to the safety of a conviction. Lord Bingham, who gave the leading speech in Pendleton, was a party to Dial.
27. In the present case, we do not think that we are assisted by consideration of the jury impact question. We are not convinced that revelation that a person coming from the cauldron of Iraq/Iran mis-stated his age and obtained a false document in Damascus would by itself have much impact on a jury considering his evidence in this case. But it is obvious that the fresh information about benefit claims would have had some impact on the jury's deliberations. What matters is whether the conviction is safe despite it. It is relevant that the fresh material does not go directly to whether or not the defendant abused his power as a senior police officer in pursuit of a private grievance. It is not evidence about what happened outside the restaurant. It goes to the issue before the jury only indirectly, by casting doubt on the general character and reliability of Al-Bhagdadi. It does not follow, if the fresh material about Al-Bhagdadi is indeed accurate, that he is not telling the truth about the events of 18 July 2008. We also accept that if such material were to be deployed in an all-out attack on the character of the witness, extraneous to what he did or did not do on the day in question, there might be consequential admission of other material.
28. There is, in this case, a good deal of evidence independent of Al-Bhagdadi. The principal planks of it are, as it seems to us, the CCTV, the tape and timing of Al-Bhagdadi's 999 call, Acting Inspector Warwick's evidence, the defendant's EAB, written before he had seen what the two recordings showed, the request to Detective Superintendent Cassidy to drop the prosecution of Al-Bhagdadi and (perhaps) the medical evidence. Of these, the CCTV, the 999 call and the EAB are not only independent of Al-Bhagdadi but are not in dispute, although there is argument as to interpretation. We accept that the other evidence in the case, not limited to these principal planks, might be regarded by a court of trial as sufficient to demonstrate that Al-Bhagdadi is indeed telling the truth and that the defendant is not. But the court of trial has had no opportunity to consider the case as it now stands. It has had no opportunity to ask itself whether the other evidence either proves the case on its own, or, more likely, sufficiently supports what Al-Bhagdadi says, despite whatever is known about him, nor has it had the opportunity to put into the balance anything else which may become admissible. That would be a different trial from the one which took place; too different, we think, for this court to be able to be satisfied that the conviction is nevertheless soundly based. The result is that we, as a court of appeal which cannot and should not attempt to make itself into a jury in order to assess the whole case, on paper and without seeing the witnesses, simply do not know whether this conviction is soundly based or not. In those circumstances we are driven to the conclusion that it cannot be regarded as safe.

Order

29. It follows that we give leave and this conviction must be quashed. We have been provided with written submissions on each side as to the consequences. We are satisfied that it is in the interests of justice that there should be a re-trial. We direct that it shall take place at Southwark Crown Court or at such other place as may be arranged by the presiding judges of the South-Eastern Circuit, and that the defendant must be arraigned within two months of the handing down of this judgment unless this court otherwise directs.