England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4 December 2015

1. LADY JUSTICE RAFFERTY: On 12th February 2014 in the Crown Court sitting at Woolwich Anthony Okoh, 46, was convicted of conspiracy to breach immigration control, contrary to S1 Criminal Law Act 1977 (count 1) and of using unlicensed security operatives, contrary to S5 Private Security Industry Act 2001 (count 2). On 14th March 2014 he was sentenced on count 1 to four-and-a-half years' imprisonment and on count 2 to two years concurrent and disqualified as a director for six years. On 30th July 2014, consequent upon a reference by the Attorney General, the Court of Appeal increased the sentence on count 1 to eight years.
2. Victor Chiazor was convicted of conspiracy to breach immigration control and pleaded guilty to engaging in the activities of a security operative unlicensed. He was sentenced to 18 months' imprisonment. Parvinder Basra and Prosper Sithole were acquitted. Sandra Okoh and Obey Makusha were each indicted on count 1, and Sandra Okoh on count 3(using unlicensed operatives) and count 4 in respect of Makusha (using unlicensed operatives) and on each count in respect of each co-accused the jury was unable to agree.
3. On 25th March 2015 the Full Court granted the appellant leave to challenge his conviction.
4. The appellant ran Blue Feathers a business providing to the operators of the construction sites security guards. The Crown's case was that many were foreign nationals with no right to be in this country, not entitled to work here and in no position to dispute excessively long hours for paltry wages. Once the appellant was at risk of exposure toward the end of the scheme, he created false documentation to deceive anyone questioning the entitlement of his employees to work.
5. He was helped by relatives and his co-accused. Security staff should be employed by an approved contractor as defined within the Security Industry Approved Contractor Scheme and must carry a valid SIA licence. He assured Castleoak, a client company, that all Blue Feathers' guards had such and CSCS (Construction Skills Certificate Scheme) cards and were paid considerably in excess of the national minimum. Castleoak had no concerns.
6. At one site a guard arrested with false documentation had been given an SIA card in a false name by the appellant's firm. Over 15 days in January 2012 he worked a total of 247 hours and was paid £741, approximating to £3 per hour.
7. In mid-2012 Castleoak read an anonymous letter suggesting that illegal immigrants lacking the right to work were being provided to it. It sought details of the guards and had assurance that all were SIA badged, all had a right to work and it was referred to a screening process.
8. A second client company, Speymill, turned to the appellant's business and employed a guard without a work permit, a bank account in a different name, a photocopy of a false passport and other fraudulent documentation.
9. In October 2012 at the appellant's business premises police found USB drives, a large number of personnel files including application forms, copies of passports, SIA cards, time sheets and bank details for guards, often in different names, and a list recording whether or not an individual's documentation were valid. At another site were three security operatives provided by the appellant: one with a valid SIA card, another with a card belonging to someone else and a third who left the site before his card could be checked.
10. The Crown led that the appellant and those working with him knew they were employing unlicensed guards with no right to work in the United Kingdom and that those working for the business were exploited. Many passports, SIA and CSCS cards had been altered to provide details of someone other than the original holder or had never been issued. This falsification took place at the appellant's office to deflect anyone minded to investigate. Time sheets and wages records showed the guards were paid £3 an hour and on occasion shifts of 24 hours were done without rest. 155 guards worked for the appellant's businesses during the relevant period and between one-third and one-half had no right to work in the United Kingdom.
11. Between April 2007 and October 2012 the appellant's businesses received more than £6m. Transfers into his personal accounts were nearly £300,000. His business accounts showed annual profits of between £45,000 and £278,000.
12. Interviewed on more than one occasion he foreshadowed his evidence which was that he had known nothing of the practice of using guards lacking a right to work, the responsibility of his co-accused and former wife Sandra Okoh, who in May 2012 she left the business, destroyed all the computers at head office and then with her new partner approached Blue Feathers' customers to poach the work. As part of this, an anonymous letter went out claiming Blue Feathers was supplying guards with no right to work.
13. His co-accused Parvinder Basra, known as Don Basra, he said worked for the company from February 2011 as sales and marketing director. Basra left Blue Feathers to set up his own business, Leo Securities. The Crown argued that Basra was a knowing participant in the pleaded conspiracy.
14. Basra told the court that once he realised the true picture he left the appellant's business immediately. He bore no responsibility for recruitment, deployment, management or payment of guards. He did not know the irregularities at any stage, although he became suspicious.
15. What he told the jury directly contradicted the appellant's main line of defence. Basra said the appellant dealt with the hiring and firing. He disagreed with the appellant on Sandra Okoh. He did not say she was in charge of recruitment. He told the jury the appellant was domineering and was aware of the guards being exploited and of their unacceptable work patterns. He implied that the appellant could not produce proof of the guards' legitimacy on request and deliberately prevaricated whilst instructing him (Basra) to lie and obstructing Basra's attempts to keep records of the guards' documents. Basra told the jury of feverish movement of documents and files at the behest of the appellant, who instructed staff to keep everything on USB sticks, avoiding the main server or the company computers. The appellant had instructed him to lie to clients and to assure them of the legitimacy of the guards but he refused.
16. Once Basra's evidence implicated the appellant and damaged his credibility, application was made on more than one occasion for leave to cross-examine as to Basra's bad character. The basis for the submission was that on Basra's account not only was the appellant knowingly involved in breaching the law but also a bully, an assailant of Sandra Okoh and someone who had invited Basra to organise a contract killing of her. Basra asserted his own honesty, trustworthiness and to fortify those contentions told the jury he had been a police officer and a social worker. The truth was that Basra in 2004 was convicted of two rapes and of supplying drugs. He had previously pleaded guilty to possession of class A drugs and been sentenced to eight years' imprisonment.
17. During the trial the Crown disclosed an application form for the job at Blue Feathers in which Basra lied about his past. That generated an application to introduce the fact that Basra had convictions, that he had been convicted after giving evidence on oath and that he had lied on the application form. It sought to introduce the length of his sentence, that he misrepresented the fact that he had been a policeman to the court of trial for the rapes (the truth being he had been a cadet for eight weeks), misled the court when it sentenced him, referring untruthfully to his previous career as a police officer, and misled the Court of Appeal when the Attorney General's Reference was heard.
18. The judge permitted a good deal of cross-examination on matters which went to Basra's credibility; the fact of his conviction, that it followed a trial, that he had only been a police cadet and had lied on the application form. She did not permit reference to the conviction being for rape.
19. The submission to us is that the conviction is thus unsafe since the nature of Basra's convictions were of substantial probative value in relation to an important matter between defendant and co-defendant, and admissible pursuant to section 101(1)(e) and (g) of the Criminal Justice Act 2003.
20. The legal framework.
21. Section 101(1) reads where relevant:

"Defendant's bad character

(2) In criminal proceedings evidence of the defendant's bad character is admissible if, but only if—

i. ...

ii. (e) it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant... "

22. Section 112(1) reads where relevant:

"... 'important matter' means a matter of substantial importance in the context of the case as a whole ... "

23. And section 104 where relevant:

"(1) Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant's defence."

24. Phillips [2012] 1 CrAppR 25, approved in Hussain [2015] EWCA Crim 383, identified two separate questions for the trial judge:
1. What is the matter in issue between defendant and co-defendant and is it of substantial importance in the context of the case as a whole?
2. What is the probative value of the evidence in relation to that issue?
25. As to the second, guidance is in Lawson [2007] 1 CrAppR 11 where the court said:

" … A defendant who is defending himself against the evidence of a person whose history of criminal behaviour or other misconduct is such as to be capable of showing him to be unscrupulous and/or otherwise unreliable should be enabled to present that history before the jury for its evaluation of the evidence of the witness. Such suggested unreliability may be capable of being shown by conduct which does not involve an offence of untruthfulness; it may be capable of being shown by widely differing conduct ... "

26. In Brewster and Cromwell [2010] EWCA Crim 1194 the court said the question was whether a fair-minded tribunal would regard the previous conviction as affecting the worth of the witness's evidence.
27. Mr Simon Farrell QC, who did not appear below, in model written submissions sets out 16 complaints of the way in which the evidence of Basra damaged the appellant's case, with the vast majority of which we have already dealt.
28. Mr Farrell relies on how Basra in evidence presented himself. Invited to tell it whether he had a loose attitude toward the truth, he said:

"I'm speaking here with the confidence that I will be judged by my peers and not caught up in legal terminology, legal debates. I'm talking openly and freely so, no, no I don't have a loose attitude to the truth, no. I have a passionate attitude towards the truth, yes."

29. And later:

"I'm here, you're my peers, I'm telling the truth and just because I've got a criminal conviction before, that has on reflection on what I have been accused of here. You can judge me and who I am and I am speaking to you openly and freely without hiding behind legal argument, behind closed doors or anything else. I'm speaking openly and frankly."

30. He defined himself as follows:

"….someone who, as you said, was a police officer for a little while. I was a prison officer for eight years. I was a social worker working with abused kids, whether they had been abused physically or -- I don't know why you're smiling at that, but working with abused kids, whether physically, emotionally, neglect. Then I worked as a mortgage advisor and then, unfortunately, I got accused of something and I went to jail for it. Apart from that, then I got out of jail and I thought, 'I'll get on with my life'. I worked with the family business for a while. I got a job at Marks & Spencer. They said I'd do a good job working for them and I did."

31. As a consequence of the judge's ruling he was cross-examined about his previous conviction and about being disbelieved by an earlier jury. At that stage he cast his accuser as the manipulative villain and himself as the wronged martyr.
32. The judge's rulings came seriatim and one of Mr Farrell's complaints is even were she right at some stage she was wrong by the time of her final ruling on January 24th 2014.
33. In refusing to permit cross-examination about the nature and details of Basra's previous convictions, she accepted that Basra's credibility was a substantial matter in issue. She rejected the argument that the nature of the rape convictions imported substantial probative value as to Basra's credibility. She said in her ruling of 16^th January :

"However, on all the facts of this case, which involves a conspiracy to breach immigration law, I do not consider the nature of Don Basra's convictions in 2004 are of substantial value in relation to his reliability."

34. In that of 24^th January she added:

"... on the facts of this particular case the nature of the convictions is not of substantial probative value in relation to the issue of credibility ... The issues can be fully and properly assessed by this jury in the light of the material already admitted."

35. That Basra's term of imprisonment was eight years had emerged before the jury.
36. The only point in issue is whether, had the jury known that his conviction was for rape, it could have relied upon his unscrupulous nature and been more inclined to believe that he would have had no qualms in directing an innocent man to prison so as to further his own commercial interests. There is said to have been little if any direct evidence as to the internal practices of Blue Feathers and the appellant's knowledge of the guards' illegal status. Okoh did not give evidence, nor did Chiazor. Makusha and Sithole appeared on the scene after Okoh's departure. The sole direct contradiction to the appellant's lack of knowledge was said to be Basra's account.
37. There are insurmountable hurdles in the way of that submission. The jury knew all it needed to form a view on Basra's credibility. It knew the length of his term of imprisonment. It knew that he had been convicted after he had been disbelieved on his oath. It knew he had not been a police officer but a police cadet for all of eight weeks. It doubtless asked itself for how long if at all he had been a prison officer and a social worker. It was sure to have listened to how Basra expressed his rock solid relationship with the truth and contrasted that with the evidence. As His Honour Judge Leonard QC pointed out in dialogue, meat and drink to a cross-examiner was that Basra told the jury that he was not even guilty of the offences of which he had been convicted.
38. We are confident that the judge's ruling - measured thoughtful and reviewed on more than one occasion - was well-founded. That ground falls away and consequently so too does any suggestion that the conviction is unsafe. The case against the appellant was strong, some would say overwhelming. For the reasons given this appeal is dismissed.