England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		29 March 2017

THE VICE PRESIDENT:

Background

1. On 12 September 2014 in the Central Criminal Court before Mr Recorder Khalil QC the Applicant was convicted of possessing criminal property in the sum of just under £250,000 cash. On 22 January 2015 he was sentenced to 3 years' imprisonment.
2. He applies for an extension of time of 21 months in which to apply for leave to appeal against conviction. His application has been referred to the full court by the single judge.
3. His co-accused, Jujhar Singh, was also convicted of possessing criminal property in the sum of just over £393,000 cash. He too was sentenced to 3 years' imprisonment. He has not applied for leave to appeal against conviction.

Facts

4. On 26 January 2013 at about 9 o'clock in the morning the Applicant parked his Golf motor car behind the co-accused's Ford Focus. The police were keeping watch. The co-accused took a holdall from the boot of the Ford and placed it on the rear seat of the Golf. The co-accused then approached the Applicant, who was in the driver's seat of the Golf. At that point, they were arrested. In response to the caution, the Applicant replied:
5. "The guy was going to give me £40,000 for a house I sold in India. I was given a phone yesterday and I was told he would call me."
6. The holdall in the Golf contained just under £250,000 in cash. Two further bags were seized from the Ford Focus, a leather bag containing £100,000 and Next carrier bag containing two separate amounts of £11,000 and £32,370, making £43,000 in total.
7. In interview the Applicant handed in a prepared statement repeating the account he had given on arrest and thereafter refused to answer questions. By the time he served his defence case statement, there had been disclosure as to the amounts seized and his account changed to one of expecting £43,000, being the approximate amount found in the Next carrier bag.

The prosecution case

8. The Crown could not identify a specific crime or crimes from which the quarter of a million pounds derived, but contended that the circumstances by which the Applicant came into possession of the money gave rise to an irresistible inference of criminal conduct. The co-accused was a courier paid to deliver cash. The Applicant was an experienced businessman well aware of money laundering regulations. He must have been a knowing recipient. The Applicant's account that the money had to do with the sale of a house or flat in India was a complete sham.
9. The jury were invited to note that the Applicant conducted all arrangements for the delivery of the money to him using a mobile phone he claimed he had been given the day before by an unnamed man. He used it for nothing else and used an assumed name of Toni. He rang two different numbers in Germany about the delivery, yet claimed that he did not appreciate he was ringing Germany. He drove to the meeting point in a borrowed car. He was not wearing his turban. He had arranged to meet the co-accused in the street rather than at his own home or place of work. He neither asked for or received any receipt of the money.
10. Jottings on pieces of paper from the co-accused showed the co-accused's activities as a money courier and sums specifically related to his meeting with the Applicant. Furthermore, the co-accused gave evidence that the day before the arrest he had been given a phone, a piece of paper with the postcode on it and the Applicant's number. He called the Applicant and the Applicant gave him the name of Toni and confirmed that the postcode to which he was going to deliver the cash was correct. The Applicant asked about the amount and the co-accused told him it was £250,000. According to the co-accused, having placed the bag containing that amount in the Applicant's car, he went to the driver's window. The Applicant again asked how much and the co-accused again told him £250,000.
11. The Crown also maintained that the Applicant lied in interview and had changed his account to fit the amount of money found in the Next carrier bag.

The Defence case

12. The Applicant's case was that he did not know or suspect that the cash was criminal property. He and his brother jointly owned a property in New Delhi which they were selling for £400,000. He was expecting to receive £40,000 for the sale of the property plus £3,000 for the fixtures and fittings. The buyer of the property, Navpreet Kumar, insisted on paying the £40,000 deposit in cash to be delivered to him in the UK. The Applicant discussed this with his accountant and bank manager who had no objection.
13. He agreed that he made calls to numbers in Germany on the phone left for him to discuss the delivery of the cash, but maintained he did not know he was calling Germany. He said he had no suspicions about the way the cash was being delivered to him, despite his knowledge of money laundering regulations. He denied any discussion with the co-accused about the sum involved and he denied ever using the name Toni.
14. He accepted that he was driving a car that was not registered to him, but asserted that it was insured in his company's name. His
15. explanation for not wearing his turban was that he was due to meet his personal trainer. He had arranged to meet the courier away from his home because he did not want a stranger coming to it.
16. The co-accused must have given him the wrong bag. He should have given him the Next carrier bag containing approximately £43,000 instead of the bag containing £250,000.
17. He called as witnesses his brother-in-law, his bank manager and an Indian estate agent to confirm his account. He produced a number of documents to support his account of the sale of the Indian property. They included an agreement to sell the property in India to Navpreet Kumar, advertisements relating to the sale of the property in 2010 and 2012, a certificate of sale of the property to the Applicant and deeds relating to sale of the property to the Applicant.
18. A further document was available to the Applicant and his legal advisers at the time of trial but was not placed before the jury. It was headed "legal notice" and dated 17 July 2013. It purports to come from a firm of advocates and legal advisers in Delhi. It is said to be a notice issued on Mr Navpreet Kumar's behalf addressed to the Applicant and his brother demanding the return of £40,000 paid by way of deposit on the sale of the flat.
19. Mr Fooks, who was trial counsel, had several concerns about placing reliance on the notice. He was concerned about its provenance because it was not sealed, not attested to by the person who purported to sign it and not produced under seal of a notary. He was also concerned that the Applicant's account by the time of trial was that he had expected to receive £43,000 but the legal notice was for the return of the sum of £40,000. He concluded the defence had sufficient material to place before the jury and that it would be wiser not to adduce the notice for fear of it raising difficult questions for the Applicant to answer.

Post conviction

20. Following the Applicant's conviction further inquiries were conducted on the Applicant's behalf. Mr Fooks was informed that there was now potentially evidence from the purchaser, Mr Kumar, to support the Applicant's defence that this was a genuine property transaction from which the Applicant was expecting £43,000 in cash.
21. Mr Fooks continued to hold the same reservations about the notice and had similar reservations about the possible evidence from the purchaser Mr Kumar. He concluded that the fresh evidence would not meet the criteria for admission as fresh evidence in this court and would not undermine the safety of the conviction.

Appeal

Waiver of privilege procedure

22. Fresh representatives were instructed and an application for leave to appeal was lodged in this court in July 2016. At that time, the case lawyer who had conduct of the application inquired whether privilege had been waived. Solicitors now acting for the Applicant, Scarmans, informed the court that in their opinion privilege did not need to be waived because there was no criticism of the trial representatives.
23. The application was referred to me as Vice President of the Court of Appeal Criminal Division to give directions. Given some of the assertions made by the witnesses as to their contact with the former solicitors, Orchards, I also inquired whether privilege had been waived. It had not. It was finally waived on 16 March 2017. Trial counsel, Mr Nicholas Fooks, was asked for his comments. He provided a very helpful note for this court dated 21 March 2017. We are indebted to him not only for the swiftness of his response, but for the very detailed analysis that he has provided of the position as it presented to him at trial and for his enclosures, which included the documents produced by the defence for the jury.
24. When Mr Fooks' note for the court was provided to those who now represent the Applicant, an application was made to the court for an adjournment and time to consider Mr Fooks' comments. I refused that application on behalf of the court, not least because of the delay to date. Mr Patel in his succinct, helpful and frank submissions before us this morning has not renewed the application for an adjournment.
25. Privilege should have been waived at a much earlier stage. Had it been, Mr Fooks' response would have been lodged in sufficient time for Mr Patel QC to take stock of the merits of the application before today's hearing and no application for an adjournment would have been necessary. The response from Scarmans betrayed a misunderstanding of the effect of the judgment in R v McCook [2014] EWCA Crim 734. At paragraph 11, the Lord Chief Justice giving the judgment of the court made the position crystal clear:
26. "First, it is always desirable to consult those who have acted before in a case where fresh counsel and solicitors have been instructed. In R v Achogbuo [2014] EWCA Crim 567 we stated that it was necessary to do so where criticisms of previous advocates or solicitors were made, or grounds were to be put forward where there was no basis for doing so other than what the applicant said. Second, it is clear from this case that we must go further to prevent elementary errors of this kind. In any case where fresh solicitors or fresh counsel are instructed, it will henceforth be necessary for those solicitors or counsel to go to the solicitors and/or counsel who have previously acted to ensure that the facts are correct, unless there are in exceptional circumstances good and compelling reasons not to do so. It is not necessary for us to enumerate such exceptional circumstances, but we imagine that they will be very rare."
27. No exceptional circumstances arise here. It is difficult to envisage a case where they will arise when fresh representatives seek to adduce fresh evidence. A waiver of privilege will be required in most, if not all cases, so that the Court can be satisfied that the provisions of section 23(2)(d) of the 1968 Act have been adequately addressed.
28. It was incumbent therefore upon fresh solicitors, Scarmans, to check their facts with trial counsel and solicitors even where no criticism was made of them.

Fresh evidence

29. As a result of inquiries that Scarmans were able to make in the time between receiving the note from Mr Fooks and today's hearing, they were able to prepare and have signed three statements. One is from Mr Jaiswal, who is a partner at Scarmans, explaining further inquiries that he has been making with one of the witnesses upon whose statement Mr Patel had hoped to rely. The second is a statement from Mr Josh Arora, the brother of the Applicant as to attempts made to produce documents now relied upon for the prosecution to examine. The third is from Mr Kunwar Singh himself as to why evidence from Navpreet Kumar was not placed before the jury.
30. The applicant seeks leave under section 23 to adduce fresh evidence from Navpreet Kumar, from Amrit Singh Pal, from Josh Arora and from Kunwarpreet Singh. The effect of the statements upon which reliance is placed is said to be to support the defence case that this was a genuine property transaction and that payment in cash of the deposit of £43,000 was made by Navpreet Kumar to the Applicant through the Hawala money transfer system.
31. Navpreet Kumar's witness statement is dated 11 March 2016 and attested to under Indian law by a public notary. He states that he lives and works in India. He is of good character and a businessman. In 2012 he contacted Sanjay Arora and viewed the Applicant's flat in New Delhi. In January 2013 he met Jasdeep Singh, the Applicant's brother-in-law, and the Applicant's representative. They agreed a price equivalent to £400,000 and that he should pay a deposit of 10 per cent. They signed a contract of sale on 22 January 2013.
32. It was his decision to pay the Applicant in cash rather than via the banking system because of Indian bureaucracy and possible delay. He decided to use a Hawala agent because he had done so before. He gave the Hawala agent the sum of £43,000 in Rupees in three instalments and insisted that the money came from a legitimate source. Sanjay Arora subsequently informed him that the Applicant had not received the money. He assumed he had been tricked, probably by the Applicant, and he contacted his Indian lawyer who issued the legal notice of 17 July 2013.
33. He was approached by Sanjay Arora with a view to his giving evidence before the trial, but he was reluctant to do so. He did not wholly believe the story that the police had confiscated the money and he did not wish to travel to the United Kingdom because of his commitments. He said he was not asked to make a witness statement by the Applicant's then solicitor. He would have been prepared to do so and give evidence by a video link had he been asked. He is now willing to give evidence on behalf of the Applicant on this application, but only by way of a video link. It seems he is still not willing to come to the United Kingdom.
34. Amrit Singh Pal's witness statement is dated 6 February 2016 and attested by a public notary. He describes himself as an established money transfer agent or Hawala banker in New Delhi. He too is of good character.
35. He keeps detailed contemporaneous computer records of transactions and has discovered from examining those records what is said to be a relevant transaction, namely that Navpreet Kumar provided him with the equivalent of £43,000 in Rupees in three instalments. The amount of £43,000 was to be delivered to a person in the United Kingdom known as Roki. The Applicant's nickname is said to be Roki. The initial delivery address was Triangle Central opposite Ealing Hospital with a postcode of UB1 3EJ.
36. His intermediary agent was a Mr ZermanBaba based in Germany. ZermanBaba was responsible for ensuring the transfer to and from Germany and Europe. He arranged for somebody called Toni and somebody called Judge to make deliveries of cash in the UK. The local intermediary agent was to be Toni. Toni was not the Applicant. Toni was to deliver the £43,000 to Roki. There was a late change of delivery address. Judge, who was the new driver or courier, mixed up the postcodes of a number of deliveries that day, three of which were in Ealing and delivered the wrong bag to Roki. The delivery of the £250,000 should have been made to postcode UB1 3EU.
37. Unfortunately, Mr Patel was forced to concede during the course of his oral submissions that his reliance upon Mr Singh Pal has been substantially undermined by the fact that despite numerous attempts to get Mr Singh Pal to disclose his computer records so that an independent and objective examination can be made of them, Mr Singh Pal has refused to do so. Accordingly, Mr Patel accepted that this court may have very considerable difficulty in accepting anything he says as arguably credible.
38. As a result, reliance cannot be placed on the additional evidence from Josh Arora, the Applicant's brother, about tracing Singh Pal and the evidence from Mr Kunwarpreet Singh (a 'computer expert' who had examined Amrit Singh Pal's computer records).
39. Mr Patel conceded, therefore, that the high hurdle facing him had become considerably higher. Essentially, he is forced to rely almost entirely on the statement from Navpreet Kumar.
40. It was the Applicant's contention that the fresh evidence was not available at trial because it was not 'actively pursued' on behalf of the Applicant. It would have been admissible at trial. We were invited to accept that on its face it appears to be credible and there is documentation which would go to support it, for example the legal notice. If this evidence had been before the jury, it is said that it would have supported the defence case and undermined the argument of prosecuting counsel, Mr Forgan, to the effect that the whole property transaction was a sham. Further, it would have supported the Applicant's account that the bag containing £250,000 cash was placed in his car by mistake.
41. Originally, Mr Patel had intended to argue a second ground based on the judge's directions, but that was abandoned.

Conclusions

42. The admission of fresh evidence in this court is governed by section 23 of the Criminal Appeal Act 1968. We may receive evidence if it is necessary or expedient in the interests of justice to do so. The Applicant must satisfy four conditions: (1) the evidence appears to be capable of belief; (2) it affords a ground for allowing the appeal; (3) it would have been admissible at trial; (4) there is a reasonable explanation for its not having been adduced at the trial.
43. We have considered the material with great care. In our judgment, this evidence does not come close to meeting the criteria in section 23 and we decline to receive it.
44. First and most importantly, there is no reasonable explanation of why the evidence was not adduced at trial. The issue of the sale of a property in India and the receipt of funds in cash in this country was at the heart of the defence case. The existence of Navpreet Kumar was well-known at the time of trial. The Applicant discussed his existence with his legal advisers. The Applicant himself was the link with Kumar.
45. As is well-known by counsel and should be known by those who stand in the dock in the Crown Court, the time for calling evidence is at trial. It is not permissible to await conviction and then appeal on the basis of evidence that was available at trial but was 'not actively pursued'.
46. In this case, a tactical decision was taken to proceed with the witnesses who were prepared to give evidence and with the documents available that did not raise difficult questions for the Applicant. A specific tactical decision was taken not to rely on the notice of legal action (and for good reason). The prosecution had placed considerable emphasis on how the Applicant had changed his account from expecting the sum of £40,000 to expecting the sum of £43,000 when the amount in the bags was counted. The notice provided another ground for Mr Forgan's challenge to the Applicant's account.
47. Furthermore, as the Applicant informed Mr Fooks and Orchards Navpreet Kumar was not willing to travel to the United Kingdom to give evidence at the time of trial for fear of being arrested. His attitude then and now leads to the obvious question: why does he fear arrest in the United Kingdom?
48. In any event, his explanation for using the Hawala system as he claims he did as one legitimate businessman paying another legitimate businessman a deposit for a legitimate property transaction is far from satisfactory. The account that he used the Hawala agent cannot be tested because Mr Singh Pal will not release any documentation which is said to support Navpreet Kumar's account for examination. Until yesterday, Mr Kumar had given no explanation for why he had paid £43,000 when the legal notice was for £40,000. The explanation now offered is thin to say the least. Also, on a cursory inspection of the copies of documents produced, in our view they arguably raise yet more difficult questions for the Applicant.
49. We are, therefore, satisfied that none of the proposed fresh evidence is credible and none of it provides support for the proposition the convictions were unsafe. The 'fresh evidence', even if credible, (which it is not) does not address satisfactorily or at all the fact that the £250,000 cash was plainly criminal property, that the Applicant behaved in an extremely suspicious manner, that the co-accused claimed the Applicant was told twice that he was receiving £250,000, the improbability that the co-accused as a courier of cash would have delivered the wrong bag to the Applicant and the changes in the Applicant's account as to the sum expected to match the amounts found.
50. Accordingly, despite Mr Patel's helpful submissions, the application must be refused.
51. We add only this. Applications to adduce fresh evidence are becoming increasingly prevalent. On close analysis, many are entirely unmeritorious. They are taking up a considerable amount of the limited time and resources available to this court. For the assistance of the parties and the judges we make the following recommendations:
52. First, single judges faced with an application for leave to appeal based on fresh evidence, before making any decision, should inquire whether privilege has been waived and if not, an explanation should be provided as to why it is not necessary.
53. Second, if an application reaches the single judge without a Respondent's notice and the single judge would be assisted by one, the single judge should direct the Respondents to consider the application and submit a response.
54. Third, the single judge should not simply refer an application based on fresh evidence to the full court without any consideration. Once the single judge has ascertained the position from trial representatives and the Respondent, he or she may well be in a position to determine whether the application is potentially arguable. If it is not, the application can be rejected at that stage. If it is potentially arguable, the single judge should normally not grant applications for leave or an extension of time but should refer them to the full court.
55. Fourth, if the single judge decides to refer an application to the full court, he or she should follow the course adopted by the single judge in this case and refer it for directions. The parties should then seek to agree those directions and submit them to the Registrar for approval by the court. Only if agreement cannot be reached should it be necessary for there to be an oral hearing in relation to them.