England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 16 March 2018

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1. LORD JUSTICE DAVIS:

Introduction

2. The issue raised on this appeal against conviction, for which this court has granted leave, relates entirely to the adequacy of the summing-up. It is the contention of the appellant that the summing-up gave wholly inadequate and indeed incorrect directions on the law, including a failure to direct the jury correctly on the issue of standard of proof; was unstructured and unfocused; and, furthermore, was unbalanced and one-sided to the point of ostensible bias such that the defence case was unfairly disparaged and belittled so as irremediably to prejudice the defence case. It therefore is said overall that the summing-up was so deficient as to give rise to a conviction that is unsafe.

Background facts

3. The background is this. The appellant, Mr Miah is now aged 37. On 6th December 2017, after a three-day trial at the Crown Court at Canterbury, before Mr Recorder Boothby and a jury, the appellant was convicted of a count of conspiracy to steal. He was in due course sentenced to nine months' imprisonment. There was a co-accused, a man called Alpergin, who also was convicted of conspiracy to steal. In his case the sentence was one of six months' imprisonment. Alpergin had applied for leave to appeal against his conviction but subsequently abandoned the application.
4. The facts shortly stated are these. On 25th May 2016, the appellant drove a BMW car, registration LL16 EWS, in which the co-accused was the only passenger, to the Port of Dover. The police on duty there had been alerted to a report that that particular car had previously been stolen. They stopped and arrested the appellant and the co-accused as they were about to drive onto a ferry bound for Calais.
5. The prosecution case in many ways was entirely unchallenged and indeed much of it was contained in agreed facts and statements which were read out to the jury. Those undisputed facts indicated that the BMW in question, driven by the appellant on that particular day in the company of the co-accused, was one of three BMW cars which had been leased by a company called Kromax. The cars had been supplied to Kromax by a dealership called Stephen James which specialised in the sale of BMW cars.
6. In April 2016 that dealership had been contacted by email by a man purporting to be called Liam Tinney, saying that he was the Managing Director of Kromax. The man calling himself Tinney then negotiated the lease to Kromax of three BMW cars which had a total value of around £170,000. The financing was provided by a leasing company called Alphabet. The transaction appears to have been conducted mainly through an exchange of emails and at all events no one from the dealership or Alphabet ever saw or met Tinney. It appears that Kromax itself had paid nothing at all towards the purchase of the cars, the finance for which had been entirely provided by Alphabet.
7. On 21st April 2016, following arrangements agreed with Tinney, the dealership delivered two of the cars, with the registration numbers LM16 EZJ and LM16 UFV, to a business address in Chatham where they were received and signed for by a man claiming to be called Hardeep Dhariwal who had, it was said, been authorised by Tinney to accept delivery. On 28th April 2016, following similar arrangements, the remaining BMW car, registration LL16 EWS, was delivered to the same address and likewise was signed for by Dhariwal.
8. On 24th May 2016 a man purporting to be Liam Tinney telephoned the police and subsequently Alphabet to report that the three BMWs had, as it was said, been stolen. Tinney said that an employee of Kromax had arranged delivery of the cars to an address which was not connected with the company and that neither the employee nor the cars had been seen since.
9. At all events, following the arrest of the appellant and the co-accused on 25th May 2016, the records of the ferry company were checked. It was then found that the appellant and co-accused had taken another of the stolen BMWs (LM16 UFV) by ferry from Dover to Calais on 9th May 2016. Although, as the records showed, they had booked to return from Calais on the following day, that is to say 10th May 2016, they had not in fact done so.
10. The appellant was interviewed by the police on 26th May 2016 and again on 5th September 2016. He denied having known that the car in which he was travelling when he was arrested at Dover was stolen. He said that he had leased it from Tinney, although he was unable to produce any documents to confirm that. He was, it can be said, vague in interview about what had happened on 9th May, saying that he could not explain why his name was associated with a BMW car taken by ferry to France on that particular date. At all events, the car which had previously been taken to France on 9th May had disappeared. As to the remaining BMW, LM16 EZJ, that apparently was recovered in Gravesend on 31st May 2016. The co-accused, when interviewed, handed in a brief prepared statement but otherwise declined to answer questions.
11. Subsequent police enquiries established that Kromax was not a real company and it appeared that Liam Tinney and Hardeep Dhariwal were simply invented names.
12. Put shortly, the prosecution case was from the outset there had been a plan to steal the cars and dispose of them abroad and that at some stage the appellant and co-accused had joined in that conspiracy and had played a significant role in disposing of the stolen cars by getting them over to Europe.
13. Put shortly, the defence case of the appellant was that, although it was not disputed that the cars had in fact been stolen, he did not know that that was or might have been the case and that he was not party to any conspiracy.
14. As we have said, the prosecution case essentially derived from agreed evidence. The appellant gave evidence himself at trial. He denied knowing that either the two cars in question had been stolen or that he had been part of any conspiracy to steal the cars. He was, amongst other things, to say that he had been in the business of leasing cars for some time and that this frequently involved trips to Europe. He said that a friend, Russell, had introduced him to Tinney who was leasing out some BMW cars and that he had initially tried one car which on 9th May 2016 he had taken by ferry to the Continent. It was part of the defence case, and as produced to the jury, that there had been a HPI check which he had carried out on that particular car. He was also to say that the co-accused had come with him to keep him company and that Russell and others had also made the journey with him on 9th May, travelling separately but in convoy in other cars. In his evidence in chief he indicated that they had travelled to Paris and Amsterdam and then to Stuttgart and there was also some mention of meeting a "man from Montenegro" who might collect the car. At all events, when in Stuttgart he had left the BMW there as he decided not to retain it. He said that the co-accused and he had then flown home from Stuttgart.
15. As for the subsequent journey, he said that on 22nd May 2016 he had leased another BMW from Tinney and he was travelling in it to the Continent in the company of the co-accused.
16. The evidence he gave at trial was in some ways different from what he had stated in interview; and when cross-examined it differed again, he amongst other things now saying that the group had not in fact in the earlier May journey gone to Amsterdam or Paris and that he had been confused. At a later stage of the trial it was permitted that he be recalled and he produced a bank statement showing a cash withdrawal of £3,500 on 13th May 2016 against which was the reference "car lease/rent". He said that this was the money which he had then used to lease the car in which he had been arrested.
17. The co-accused also gave evidence, amongst other things saying of the earlier May trip that they had gone to Stuttgart by car with others and then had flown home. The co-accused said that he did not know that any cars were stolen.

The summing-up

18. The evidence was concluded within two days. There were closing speeches from counsel and the Recorder himself summed up on the morning of the third day. As Mr Hook appearing for the prosecution (then as now) pointed out, this was a relatively short trial and it may well be right that the jury would have had a good understanding and recollection of the evidence which had been given.
19. Counsel having given their closing addresses to the jury, the Recorder then summed up to the jury. His summing-up took 20 minutes. This had been a short case and there was no reason at all why the summing-up could not, entirely properly, be concisely expressed.
20. At a very early stage in the summing-up, the Recorder appropriately said this:

"The facts are entirely your province. They are absolutely your business, and your business only. You have been collected here to pool your joint wisdom of life and common sense and experience of how things happen in the real world, to make an unjaded judgment, an unjaded decision about what you think really happened ... "

He then followed that up by saying this:

"You may well get an impression when I summarise, very briefly, a bird's-eye view of all the evidence we have heard in this case, but my selection of what to summarise to you gives away my view of things. I am an old, jaded practitioner in these courts, so it would be surprising if I didn't have views. And it is not my views that are sought. It is your views, your fresh and unjaded views. So remember that. But, what you -- what actually happened is for you to decide, not me, but you will please, take the law from me and apply the law to the facts."

21. The Recorder then turned to the issue of burden of proof. He said this:

"Some principles of law apply in all criminal cases, and a very important one - I am sure you will have heard of - is called the 'burden of proof'. In this country, if the authorities choose to disturb the peace - a citizen by accusing them of a criminal offence, it is their job to go out and find the evidence that they say should satisfy you that this accusation is a true one.

It is not the job of the defendant to give a good account of himself, otherwise risking being convicted. It is for the prosecution to go out and find the evidence and prove it. And, in theory, that burden never shifts from the prosecution to the defence. However, in the course of my career there have been some qualifications of that principle, and one of them does arise in this case, because, as you know, on two occasions, both in May and September, Mr Alpergin was interviewed by the police about all of the matters ... "

The Recorder then entered into, with respect, a somewhat garbled section 34 direction with regard to Alpergin, the co-accused, concluding that direction, by reference to the assertion that he had remained silent on legal advice, by saying that the jury had to be "sure that the real reason for staying silent was not having a good answer to hand to what the prosecution were accusing him of" if they were to hold that matter against the co-accused.

23. The Recorder then went on to give some directions about the ingredients of conspiracy and theft and gave a conventional separate consideration direction. The Recorder then, in shortly summarising the prosecution case, said this:

"Mr Miah and Mr Alpergin sought to drive two of those cars over to Europe, with no valid booking for their return. The delivery of the second car to Alpergin and Miah was in a Shell garage close to the A2 in the Rochester area. Not a scrap of paper has been found or produced showing any detail of how this pair came to possess these two cars. No wonder the prosecution say to you it is plain as a pikestaff that these two were playing a major part in disposing of these cars by getting them over to Europe. What was to happen to them after that nobody probably will ever know.

Well, a trial is an opportunity for the defendants to state their side to you, because everything I have recited up until now is not disputed by the defence. A trial is an opportunity for the defendant to state their side of it all and perhaps explain away appearances as a possible delusion or misunderstanding. And both ... defendants did indeed give evidence about these excursions to Europe."

24. The Recorder then set out very shortly a summary of aspects of the appellant's evidence. The Recorder dealt with the journey of 9th May and among other things said of the appellant's evidence:

"You may think in rather vague, almost dream-like terms Miah knew that there was somewhere called the Champs-Elysees, in Paris, just as someone in a remote country might mention the Tower of London to give flesh and blood to a visit to London."

And then shortly after that the Recorder posed these questions about that previous journey:

"Did they stop short of Paris, turn back and go to Amsterdam? Were they redirected from Amsterdam to Stuttgart? Was a Range Rover from Montenegro expected in all these three cities at one time or another? Did Miah finally decide in Amsterdam that he did not like the colour of the X6 that he had been driving for several weeks? Or was this decision made in Stuttgart, just when he most needed a car to get home, because that, in a nutshell, is an outline of the evidence that Mr Miah gave."

25. Nowhere in this short summary of the appellant's evidence did the Recorder draw any attention to such points as were available to the defence, including the HPI check, the evidence of payment of £3,500, the lapse of time between the original taking of the cars by Kromax and the trips, and indeed the report of the theft by the man calling himself Tinney.
26. At all events, having so dealt with the appellant's evidence, the Recorder immediately turned to the evidence of the co-accused. He started off his summary of that evidence in this way:

"Mr Alpergin tried to sort this mess out by concentrating on the cancellation of the Paris plan..."

It was then said about the evidence of Alpergin, as summarised by the Recorder, that Alpergin was "saddled with a convoy of three cars" (that being by reference to what the appellant himself had previously said in evidence at the trial) and then this also was said about Alpergin's evidence:

"So he touched on that subject and so ... was slightly stuck with that, and that was a convoy of three cars with seven people in it."

The Recorder went on also to make comments about the co-accused "rather struggling" to fit events as he described them into the available chronology. The Recorder then reverted to making remarks about the lack of paperwork available to the appellant Miah and also made reference to the appellant implying that someone else was to blame for the loss of paperwork and "those are matters you need to weigh". The Recorder concluded in this way:

"There is plenty more detail that has come up in the trial where you might think more important than what I imagine. You will have no trouble thinking up, incidentally, dozens of other avenues of enquiry that all parties might have gone down. They have not chosen to do so, for all sorts of good reasons ... "

The Recorder then said, appropriately, to the jury that they were not to speculate and to judge the case on the evidence they had heard.

27. The Recorder then gave instructions to the jury to retire, having given the appropriate direction as to unanimity of verdicts, the court usher having to remind the Recorder that the jury bailiffs first had to be sworn out.

The grounds of appeal

28. It has been necessary to set out in some detail parts of this short summing-up in order to explain the complaint which Mr Hunsley on behalf of the appellant raises.
29. Although not initially raised in the grounds of appeal, there has since been raised, the point having been noted by the Registrar of Criminal Appeals, a criticism of the failure of the Recorder to give any sufficient direction on the standard of proof applicable in this case. It will be recalled that whilst directions had been given on the burden of proof, what was said about the prosecution was that they had to produce evidence that "should satisfy you" and "prove" that the accusation was a true one. The Recorder nowhere directed the jury in terms that the criminal standard applied. It is quite true that, in the context of the section 34 direction relating to the co-accused Alpergin, the Recorder did tell the jury that, to draw an adverse inference, they had to be sure that his staying silent was because he had no good answer to questions; but Mr Hunsley's complaint is that that if anything makes things worse, because the jury were directed as to the need to be sure in that context of an adverse inference concerning the co-accused but had not been so directed in the context of the case as a whole against this appellant.
30. Mr Hunsley further goes on to submit that it is quite plain from what he said to the jury that the Recorder was in effect associating himself with the prosecution case. He referred, for example, to the Recorder saying "no wonder the prosecution say to you it is plain as a pikestaff that these two were playing a major part in disposing of these cars by getting them over to Europe." Mr Hook had not in fact himself used the phrase "plain as a pikestaff"; but the central point is that by using the words "no wonder" the jury could well take it that the experienced Recorder - "an old practitioner in these courts" as he had told them - was associating himself with the strength of the prosecution case.
31. Furthermore, immediately after so saying, the Recorder made the remarks which we have already set out, starting with the words "Well a trial is an opportunity for the defendants to state their side to you ...". Mr Hunsley says that the effect of all this was in reality that the prosecution case was being presented as extremely powerful and that in effect the burden had then shifted to the defence to explain it away: which is a complete distortion of the way the criminal burden and standard of proof are designed to operate in a trial of this kind. Yet further, Mr Hunsley says that the subsequent treatment by the Recorder of the appellant's evidence not only failed to mention such points as were available to the defence but also in effect disparaged the defence by the way in which he dealt with the appellant's evidence: for example the reference to "rather vague, almost dream-like" terms of which Miah said that he knew the Champs-Elysees and to the series of questions posed.
32. Yet further, Mr Hunsley says, this is compounded by the reference to the co-accused when he gave evidence trying to "sort this mess out": clearly conveying to the jury the Recorder's own view that the evidence of the appellant had been a mess and indeed thereafter also conveying a view that the co-accused had been trying to "sort things out" in effect by having to mould his evidence to what this appellant had already said in evidence himself. He said that all this, when taken together, could not be undone by what the Recorder had said at the outset of the summing-up.

Discussion

33. There is no requirement for any Crown Court judge or Recorder to give directions which slavishly follow those set out in the Judicial College Compendium. Further, judges and Recorders are to be encouraged to give directions to a jury in plain and straightforward terms. One can perhaps deduce that this particular Recorder, relying no doubt on what he himself had indicated was his very long experience in the criminal courts, was not inclined to pay over much attention to the actual language of or seek the assistance of the Judicial College Compendium, even assuming that he had studied it for the purposes of this particular trial. So be it. That is not of itself a criticism. But what is always required is that any Crown Court judge gives, accurately, the appropriate and necessary legal instructions on matters requiring legal instruction; and there is nothing which is more fundamental in this regard than the requirement to give appropriate instruction as to the burden and standard of proof. In this particular case not only did the Recorder somewhat complicate and misstate the simple direction on burden of proof, at least so far as the co-accused was concerned, by saying that it had shifted, in the context of a section 34 direction, but more significantly he at no stage directed the jury that they had to be "sure" of guilt if they were to convict. At most he had said that the prosecution had to "satisfy" the jury and "prove" its case if they were to convict. It is well established that using language such as "satisfied" is insufficient for this purpose - see, for example, the case of Hepworth [1955] QB 600. It might also be said that this perhaps is all the more important where, as here, the prosecution case of guilty knowledge depended on an inference to be drawn from the primary facts, coupled with the need for the prosecution to disprove to the criminal standard the explanation that the defendants were giving.
34. In our view, reading the summing-up as a whole, one simply cannot get out of the summing-up, so read as a whole, a clear instruction to the jury that they had to be satisfied so that they were sure before they could convict.
35. Mr Hook submitted that many jurors nowadays would know about proof beyond reasonable doubt. In any event he emphasised that counsel in their speeches had stressed the criminal burden and standard of proof. No doubt they did. But directions on the law which the jury are to follow have to come from the trial judge; and this trial judge failed to give the crucial direction on standard of proof. This was then, with respect, significantly compounded by the way in which he then treated the evidence. Of course a trial judge may comment on evidence. We agree with Mr Hunsley, however, that this summary of the evidence was framed in a way which was disparaging of what the appellant was seeking to say: even though it may well be that the appellant's evidence may well have come across as very confused and in some places, perhaps, downright implausible. Further, we accept that the Recorder so structured his summing-up and so framed his comments as to give the potential impression to the jury that in effect the burden had shifted to the defence to explain away the prosecution case.
36. It is right that neither counsel at the time reminded the judge of the need to give a specific direction on the standard of proof or raised any other objection. Both have candidly told us that they had not noted the point at the time. Both accept that the Recorder should have been reminded of this. So far as counsel for the co-accused was concerned, he did rise to his feet at the end of the summing-up, he having a complaint about the short manuscript legal directions given to the jury by the Recorder which had not been placed in advance before counsel for their agreement. But he also did not raise this point.
37. We ultimately have to ask ourselves whether this conviction was safe. Regrettably, we have come to the conclusion that we cannot say this conviction is safe. That is by reason of the serious inadequacy of the summing-up. This was indeed a short trial. We can readily accept that the jury would have had all the evidence well in mind. It is also not difficult at all to accept Mr Hook's submission that this was potentially a very powerful prosecution case; and, as we have said, one can readily see the potential discrepancies and implausibilities in aspects of this appellant's evidence. But there is no sliding scale of justice in this context. Whether a defendant in a criminal trial has a strong defence or a weak defence, whether a trial is a long one or a short one, each such defendant is entitled to a fair, balanced and legally accurate summing-up. Indeed it might be said that just where a defendant has a very difficult defence case, all the more reason, if anything, for a scrupulously fair and balanced approach by the trial judge. In this particular case the Recorder not only failed - and significantly failed - to give the extremely important direction as to standard of proof; but that failure was then compounded by the unbalanced way in which he dealt with the defence case during the course of the summing-up: which rendered the lack of specific direction on standard of proof even more fundamental.

Conclusion

38. In many ways we would take the view that overall this appellant, notwithstanding the strong case against him, simply had not had a fair trial by reason of this summing-up. In those circumstances, this court cannot be satisfied that this conviction is safe. We allow the appeal accordingly. We quash the conviction.
39. MR HOOK: My Lord, I am instructed to ask the court to direct that there should be a retrial in this matter.
40. LORD JUSTICE DAVIS: The appellant has spent some time in prison now? He is on home detention curfew?
41. MR HOOK: He was released yesterday, as I understand it, half-way through his sentence.
42. LORD JUSTICE DAVIS: What do you say about that, Mr Hunsley?
43. MR HUNSLEY: My Lords obviously this offence is now dating back to early 2016. The court has heard the appellant was sentenced on 6th January and released yesterday, incidentally, on home detention curfew. Having spent that time in custody I would ask that the matter be left as it is.
(Pause)
44. LORD JUSTICE DAVIS: No, this is not an appropriate case to direct a retrial, unfortunate though the position is.
45. MR HOOK: My Lord, I am grateful. The other matter is Mr Alpergin. He clearly would have arguable grounds of appeal in light of the judgment given. I am not sure what the appropriate course is?
46. LORD JUSTICE DAVIS: He abandoned. We do not know the grounds of his original appeal, whether it was again by reference to these points or not, we do not know. I think all we would say is that people should notify Mr Alpergin's lawyers of what has happened on this appeal and in due course when the transcript of our judgment is available no doubt that can be given to him too, but it is a matter for Mr Alpergin as to what he decides to do. All we know is that he abandoned.
47. MR HOOK: He did.

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