ADVANCE COPY

	Privy Council Appeal No. 54 of 2004

Jagdeo Singh	Appellant
	v.
The State 	Respondent

	FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
	---------------

	REASONS FOR DECISION OF THE LORDS OF THE
	JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, OF THE
	16th June 2005, Delivered the 3rd August 2005
	------------------

	Present at the hearing:-
			Lord Bingham of Cornhill
Lord Rodger Earlsferry
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
Sir Swinton Thomas
		       [Delivered by Lord Bingham of Cornhill]
	------------------

On 29 November 2001 the appellant, Mr Jagdeo Singh, was convicted on two counts of corruption before John J and a jury at the Port of Spain Assizes.  He was sentenced to serve concurrent sentences of seven years’ imprisonment on each count and his appeal against conviction was dismissed by the Court of Appeal (Sharma CJ, Hamel-Smith and Jones JJA) on 15 November 2002.  He appealed to the Board by special leave granted on 2 October 2003, contending, first, that the facts alleged against him, even if accepted, disclosed no offence against the statutory provision under which he was convicted and, secondly, that his conviction was vitiated by an inadequate good character direction.  On 16 June 2005, for reasons to be given later, the Board allowed the appeal and quashed the appellant’s convictions.  The Board now gives its reasons for that decision.
The facts
In 1999 the appellant was a 33 year-old lawyer in private practice in Port of Spain.  In 1996 he had been retained by Ms Sherry Ann Basdeo, the partner of Mr Rudolph John, to represent John at a preliminary enquiry into a drug trafficking charge, on which he was committed for trial.  In the summer of 1999 Basdeo retained the appellant to represent John at this trial, for an agreed fee of $150,000 (according to her) or $120,000 (according to him). Basdeo testified that $12,500 was paid on account of this fee ($10,000 followed by a further payment of $2500) but the appellant said that no payment was made.

On 1 October 1999 John and two others were arrested by the police and charged with possession of marijuana for the purpose of trafficking.  At the request of Basdeo the appellant visited John in police custody and agreed to act for him in this matter.  A fee of $50,000 was agreed.  The appellant accepted that Basdeo had paid him $10,000 but said that this payment was made on account of the $50,000 fee agreed for this new matter, and he denied receipt of an additional $2,500.

It appears that the appellant informally raised with Magistrate Deborah Thomas-Felix (“the magistrate”), probably on 11 October 1999, the possibility of granting bail to John, but she indicated that in view of other pending charges he might have to apply to a judge in chambers.  The appellant said that he would take his chance in the magistrates’ court.  The appellant made an application for bail on that day, but it was refused.  On 1 November 1999 he successfully applied to the magistrate for bail for the defendants arrested with John, but he made no application on his behalf.

On 11 November 1999 there took place a meeting crucial to the outcome of this case.  It was between Basdeo and the appellant at the magistrates’ court.  No one else was present and no record of the meeting was made.  According to her, the appellant said that John would get bail but that she had to pay the sum of $40,000 for him to get it, and the money had to be paid to him for him to give to the magistrate and to Corporal Bynoe, the prosecutor.  She wanted time to raise the money, but he pressed her for an answer, saying that he had to tell the magistrate whether she would pay the money or not.  She agreed to do so.  The appellant denied that any such conversation took place.  He told Basdeo that he wanted to be paid the balance of his fee, $40,000, and would make an application for bail when he had been paid.
On 18 November 1999 a former client of the magistrate whose wife was a friend of Basdeo visited the magistrate, and the magistrate contacted the police.  On the following day she was visited by a senior officer.  She also had a conversation with the appellant.  He asked her not to grant bail to John (or, according to him, not to deal with the question of bail) since he had not been paid his fee.  The magistrate said that there was no problem.  According to her evidence, it was not unusual for a magistrate to accommodate attorneys when their fees had not been paid.  All three defendants were remanded in custody until 29 November, when the case was adjourned to 1 December.

Basdeo told the appellant that a friend of John’s was willing to advance $40,000.  On 30 November 1999 a meeting took place at the appellant’s office.  Present were Basdeo, WPC Bridgelal, posing as the friend who was to advance the money and using the pseudonym of Debbie, and the appellant.  All three gave evidence of what was said, but their accounts were significantly different.  According to Basdeo, the appellant explained the purpose of the money as being for the magistrate and the prosecutor.  This was not corroborated by the WPC.  According to her, she said she wanted to be sure the money would be used to get bail for John, and she asked how long it would be after payment of the $40,000 before John would get bail.  The appellant said that all the arrangements were already made, that he needed to have the money the day before the hearing, and once he had the money he would contact the magistrate and tell her he had the money and everything would be all right.  The appellant said that if he did not get bail he would return the money.  The appellant himself could not remember the exact words of the conversation, but if he referred to arrangements being made he would have meant that he would be in court to make the application.  He might have said he would return the money if John did not get bail, but if he did it was in jest.  It was agreed that the WPC would bring the money to the appellant on 2 December.

The appellant represented John before the magistrate on 1 December, when the case was adjourned to 3 December.  Before leaving court the appellant bent over and told the magistrate that he would be applying for bail on the adjourned date, since he would have received his fees.  She wished him luck.

On 2 December 1999, Basdeo, the WPC and a number of other police officers went to a Kentucky Fried Chicken branch at Curepe, some 7 miles from the appellant’s office.  They had with them a bag containing $40,000 in notes supplied by the police.  There was little dispute about the course of events which followed.  Basdeo telephoned the appellant to say that her car had broken down in the vicinity of the Kentucky Fried Chicken and she could not bring the money to his office.  She was not willing to take a taxi, and wanted him to collect it.  He suggested that she leave it with his fiancée who lived nearby, but the WPC came on the phone to say that she would prefer to deliver the money to him personally.  The appellant then drove to the Kentucky Fried Chicken branch.  On arrival, he called Basdeo on his mobile and asked her to bring the money out, and when she delayed he called her again.  In due course Basdeo and the WPC came out.  The WPC gave him the bag.  Basdeo asked if everything would be all right and he said it would.  At that moment a number of police officers converged on the car, some of them armed.  The appellant said that the bag contained money, he was collecting his fees.

On 13 December 1999 John was granted bail in the sum of $1 million.

The offence
The appellant was charged under section 3(1) of the Prevention of Corruption Act 1987.  Section 3 provides:
“3.(1)	 Every person who, by himself or by or in conjunction with any other person, corruptly solicits or receives, or agrees to receive, for himself or for any other person, any gift, loan, fee, reward, or advantage whatsoever, as an inducement to, or reward for, or otherwise on account of, an agent doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the State or a public body is concerned, is guilty of an offence.

	 (2)	Every person who, by himself or by or in conjunction with any other person, corruptly gives, promises or offers any gift, loan, fee, reward, or advantage whatsoever, to any person, whether for the benefit of that person or of another person, as an inducement to, or reward for, or otherwise on account of, an agent doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which the State or a public body is concerned, is guilty of an offence.”

In section 2 of the Act, “agent” is defined to include “any person serving under the State or other public body or holding a public office”, a definition plainly apt to describe a magistrate or a police corporal acting as prosecutor, each of whom may conveniently be described as a public officer.  The first count of the indictment charged the appellant with corruptly soliciting, the second with corruptly receiving.  Section 3 is closely modelled on section 1 of the Public Bodies Corrupt Practices Act 1889 (United Kingdom), although that Act made reference only to members, officers or servants of public bodies.

It was common ground at the trial that the appellant had never suggested or offered a bribe to the magistrate or the prosecutor.  It was not suggested that he had authority to act on behalf of either of them or that he had any intention to offer a bribe to either of them.  Still less was it suggested that either of them would have been willing to countenance such a proceeding.  On behalf of the appellant, Mr Fitzgerald QC submitted that acceptance of these facts was fatal to the prosecution.  The object of the section was to ensure that public officers should not be influenced in performance of their public duties by any hope or prospect of any pecuniary or other advantage.  Thus the receipt of any such benefit is proscribed. So also is the soliciting of such an advantage.  And it makes no difference that the benefit received or solicited may not, in fact, have any influence on the performance of the public officer, since the section proscribes conduct which might expose public officers to any temptation to betray their duty.  But, submitted Mr Fitzgerald, there could be no offence against the section if the public officer was not involved in the transaction at all, either as principal or agent, for in such circumstances the conduct of the public officer could not be influenced and he could not be exposed to temptation.  A person soliciting or receiving money falsely said to be intended as a bribe might well commit some other offence, but would not commit the offence of corruptly soliciting or receiving contrary to section 3.

In the most straightforward case covered by section 3(1), the benefit in question will be solicited or received by the public officer involved or by an agent acting on his behalf.  The more difficult question is whether the offence may only be committed in such a way.  It must here be noted that the section is cast in broad terms.  Like section 1(1) of the 1889 Act and section 3(1) of the Prevention of Corruption Act 1921 of Trinidad and Tobago, it applies to “Every person …”.  The benefit solicited or received may be “for himself or for any other person”.  It covers the payment of money after the event, even in the absence of any agreement beforehand: R v Parker (1985) 82 Cr App R 69.  It is no defence to a charge under section 3(1) of the Act (or its equivalent in the Prevention of Corruption Act 1906) that the recipient of the benefit did not show favour to the party conferring it: R v Carr [1957] 1 WLR 165.  Nor is it a defence that the recipient accepted the benefit never intending to show favour.  As Geoffrey Lane LJ said obiter in R v Mills (1978)  68 Cr App R 154, 158-159; 
“… in our judgment it is enough that the recipient takes the gift knowing that it is intended as a bribe.  By accepting it as a bribe and intending to keep it he enters into a bargain, despite the fact that he may make to himself a mental reservation to the effect that he is not going to carry out his side of the bargain.  The bargain remains a corrupt bargain, even though he may not be intending to carry out his intended corrupt act.  Such a private determination avails him no more than would a private determination that a similar payment in respect of past favours was received by him because of some innocent matters other than a past favour.”

It would seem plain that Basdeo committed an offence against section 3(2) when, on 11 November 1999, she promised to pay money to the appellant to be used to induce the magistrate to grant bail and the prosecutor not to oppose it.  The language of the subsection squarely covers such a case, as Mr Fitzgerald was inclined to accept.  It would be no defence even if (which was not the case here on that date) the offeror did not intend the transaction to progress beyond acceptance of the money and had an ulterior motive of exposing corruption: R v Smith [1960] 2 QB 423.  While Basdeo might, theoretically, commit an offence against section 3(2) without the appellant committing an offence against section 3(1), that would be a surprising result, the more so since, on the prosecution case, the appellant instigated the transaction.

The principle which has underpinned the English authorities was first clearly formulated by Willes J in Cooper v Slade (1858)  6 HLC 746, a case concerned with bribery of voters contrary to the Corrupt Practices Prevention Act 1854.  He there said, at p 773:
“I think the word ‘corruptly’ in this statute means not ‘dishonestly’, but in purposely doing an act which the law forbids as tending to corrupt voters, whether it be to give a pecuniary inducement to vote, or a reward for having voted in any particular manner.  Both the giver and the receiver in such a case may be said to act ‘corruptly’.” 

This principle was applied in R v Smith, above.  It was also applied in R v Wellburn and others (1979) 69 Cr App R 254, a case involving both payers and receivers.  Applying the principle to this case, the Board concludes that, if the facts alleged by the prosecution were established, the appellant purposely did an act which section 3(1) forbade as tending to corrupt public officers, in soliciting and receiving money for the express purpose of bribing them.

This conclusion gains support from the unreported decision of the Court of Appeal (Criminal Division) in R v Harrington (No 00/1780/X2, 28 September 2000, Kennedy LJ, Forbes and Steel JJ), a case in which the defendant had been convicted under section 1(1) of the 1889 Act.  He had solicited money from a third party on the pretext that the money would be used as an inducement to persuade a police officer not to proceed with charges against the third party.  The prosecution accepted that the police officer had not been party to this scheme, that the defendant had not been acting as the police officer’s agent and that the pretext was false, since the defendant had intended to keep the money for himself.  It was argued on appeal that the defendant’s conduct might have been dishonest but was not corrupt.  This submission was rejected.  The court applied the ruling in R v Smith, above, and concluded (para 31):
“… Furthermore, in our view, on the plain wording of the statute, it is not necessary to prove that any member, officer or servant of a public body was in fact aware of what was going on when the improper offer was made or the bribe was passed, provided that the apparent purpose of the transaction was to affect the conduct of such a person corruptly.”

Mr Fitzgerald accepted that R v Harrington was indistinguishable and, if correctly decided, fatal to his contention.

In the opinion of the Board, that case was rightly decided.  It follows that the trial judge, applying English authority, was right to reject the appellant’s submission that he had no case to answer, and the Court of Appeal, who were referred to the transcript in R v Harrington, were right to reject the appellant’s appeal on this ground.  The Board concluded that it must likewise reject the appeal on this ground.

Good character
As a practising lawyer with no criminal convictions, no recorded blemish on his professional reputation and a commendable record of involvement in community activities, the appellant was entitled to the benefit of a full good character direction to the jury.  Such a direction should have related both to his credibility as a witness and to the lack of any propensity to commit crimes of the kind charged against him.  The credibility ingredient in this case was of particular importance, since the crucial issue for the jury’s decision concerned the conversation between the appellant and Basdeo on 11 November 1999 (see para 5 above).  The jury had to decide whether they believed Basdeo, a woman of admittedly bad character, or whether the appellant’s account might be true.

In his summing-up to the jury, the trial judge summarised the appellant’s evidence about his background and upbringing, referring to his sporting and cultural activities in his native district and reminding them that the appellant had never been convicted of any criminal offence.  The judge then continued in this way:
“The accused is saying to you that he is a person of good character and where in a trial, a criminal trial, an accused brings forward his good character, places it before you, you must deal with that issue in this way.  I say two things.  Where a person brings his good character into focus and is asking you to take my good character into consideration in considering what I have said, good character is not a defence to a criminal charge, it is no defence, neither is it a passport against guilt.  It doesn’t mean because you have good character you cannot be found guilty, or you cannot commit a crime, there is always a first time.

But Members of the Jury, it is a factor that you must consider when you deal with the evidence of the accused.  Take into consideration here is a person who has never committed any criminal offence, who has had a life in, involved in cultural activities and service to his community.  And a person of, when you are considering his evidence the fact that a person is a person of unblemished record may mean that he is less likely than otherwise to commit this type of crime.  That is how you use good character, that he is less likely than otherwise to commit this type of crime because of his hitherto good character.”

This was not an ungenerous direction.  It addressed the issue of propensity.  But it did not address the issue of credibility.  It may be that the jury would incline to regard a practising lawyer as a man of probity whose word was prima facie worthy of belief.  But the belief of lawyers in their own probity is not universally shared, and there are those who believe them to be capable of almost any chicanery or sharp practice.  There can be no doubt that the appellant was entitled to the benefit of a conventional direction on credibility, and such was not given.

This was the opinion of the Court of Appeal, who said in their judgment:
“It is clear and this has been conceded by the State that the judge’s directions on good character were inadequate.  He omitted to direct the jury on the impact of the appellant’s good character on the question of his credibility.  Although the trial judge told the jury that the fact of his good character was a factor to be considered when dealing with the evidence of the appellant, we do not think that was sufficient to bring home to the jury that his good character was to be taken into account when they were considering whether or not they could accept his evidence as truthful.  Indeed the question whether the money obtained by the appellant from Basdeo was his fees or not turned essentially on his credibility and that of Basdeo and the police officer Lynette Bridgelal.”

The Court of Appeal’s ruling reflected the trend of modern authority, which has hardened in recent years.  Sitting with Lord Parker CJ and Ashworth J, Widgery J described good character in R v Bellis [1966]  1 WLR 234, 236, as “a matter which primarily goes to credibility”, although he suggested (a view not now propounded) that credibility and propensity might amount to the same thing.  Reference to the primary importance of credibility was again made in R v Bryant [1979] QB 108.  In R v Berrada (Note) (1989)  91 Cr App R 131, 133-134 a good character direction was held to be primarily relevant to the appellant’s credibility, in a case in which questions of credibility went to the heart of the matters which the jury had to decide.  This last decision was cited and approved in R v Vye and others [1993] 1 WLR 471, 475, where Lord Taylor of Gosforth CJ said:
“That decision therefore confirmed that, whatever the position may have been previously, it is now an established principle that, where a defendant of good character has given evidence, it is no longer sufficient for the judge to comment in general terms.  He is required to direct the jury about the relevance of good character to the credibility of the defendant.  Conventionally this has come to be described as the ‘first limb’ of a character direction.  The passage quoted also stated that the judge was entitled, but not obliged, to refer to the possible relevance of good character to the question whether the defendant was likely to have behaved as alleged by the Crown.  That, in effect the Stannard direction, is the ‘second limb’.

Leaving aside cases involving more than one defendant where one is of good character and one is not, virtually all the numerous decisions since Reg. v Berrada (Note) 91 Cr. App. R. 131 have reiterated that the first limb direction is necessary wherever the defendant has given evidence.  This has been held to be so even when, on his own admission, he has told lies in interview with the police: Reg. v Kabariti (1990) 92 Cr. App. R. 362.”

At page 477 the court resolved doubts as to when a second limb, propensity, direction should be given by ruling that such a direction should be given where a defendant is of good character.  At page 479 the court ruled that a direction as to the relevance of his good character to a defendant’s credibility was to be given where he had testified or made pre-trial answers or statements.

In R v Fulcher [1995] 2 Cr App R 251 the defendant had not given evidence and the trial judge (before R v Vye) had given no meaningful good character direction on credibility.  That omission had to be regarded as an irregularity: p 260.  In the light of the authorities the court accepted that a proper direction as to character has some value, and therefore is capable of having some effect in every case in which it was appropriate for such a direction to be given, of which that case was one, since the prosecution case depended on the uncorroborated evidence of one witness with a little circumstantial evidence in support, and the jury had had difficulty in reaching a verdict: p 260.  The House of Lords applied and approved R v Vye in R v Aziz and others [1996] AC 41.  In his opinion with which other members of the House agreed, Lord Steyn (at p 53) acknowledged the existence of a narrowly circumscribed discretionary power in the trial judge to dispense with a good character direction but ruled that prima facie such directions must be given.  This was because (p 51) fairness requires a direction about good character because it is evidence of probative significance.  A majority of the Board applied these principles in Sealey and Headley v The State [2002] UKPC 52, a case in which counsel had failed to raise their good characters at trial, and again in Teeluck and John v The State [2005] UKPC 14 where a good character direction was described (para 37) as “essential for a fair trial, certainly where the credibility of the defendant is a central issue”.  The recent decision of the Board in Uriah Brown v The Queen [2005] UKPC 18, reported as Brown (Uriah) v The Queen [2005] 2 WLR 1558, relied on by Mr Knox for the State in the present case, throws no doubt on these principles: it was a driving case in which good character had not been raised until the sentencing stage (para 35) and the Board considered that a good character direction would have been of less significance in assisting the jury to come to a conclusion than in other types of prosecution (para 38).

Mr Knox contended that the judge had in substance given the appellant the benefit of a direction on credibility, and that in any event the appellant’s improper invitation to the magistrate to delay the grant of bail until he was in funds disentitled him from receiving a full direction. The first of these arguments is unpersuasive for the reasons given in para 20 above, and for the reasons given by the Court of Appeal as quoted in para 21 above.  The second argument is also unpersuasive.  It would certainly appear, as held by both the judge and the Court of Appeal, that the exchanges between the appellant and the magistrate were highly irregular and regrettable.  But the appellant was not required to justify this aspect of his conduct at trial; he had not been subjected to any disciplinary penalty; the magistrate had apparently acquiesced; and it did not appear from her evidence that he acted differently from other advocates in the magistrate’s court.

The Court of Appeal was right to have regard to the line of authority referred to above (Barrow v The State [1998] AC 846, 852) and accordingly to hold that the direction given by the judge in this case was inadequate.  After the passage quoted in para 21 above, the Court of Appeal continued as follows:
“Undoubtedly the appellant was a person of good character at the time of this incident.  He was a young man of 35, regarded by many as a competent lawyer.  He had been involved in social activities in the community where he was born and grew up.  He was an active member of a cultural group and an avid cricketer who was captain of his cricket team and indeed captain of all the teams for which he played. He also played football. Above all he has no previous convictions of any type.

Those qualities stood out in his favour.  The question is, however, whether the omission by the trial judge to give the full good character direction resulted in a miscarriage of justice.  Although the need to give a full good character direction has been emphasized in all the reported cases it has always been recognised that there may be some cases in which the omission of a good character direction does not render a conviction unsafe.  Is this one such case?  Mr Allum [for the appellant] submits that this is not; counsel for the State says it is.  The answer turns on a critical analysis of the evidence.

We must therefore examine the evidence to determine whether in our opinion the jury would inevitably have convicted even if a full good character direction had been given.  That is the test.”

With the general approach of the Court of Appeal the Board would respectfully agree.  The significance of what is not said in a summing-up should be judged in the light of what is said.  The omission of a good character direction on credibility is not necessarily fatal to the fairness of the trial or to the safety of a conviction.  Much may turn on the nature of and issues in a case, and on the other available evidence.  The ends of justice are not on the whole well served by the laying down of hard, inflexible rules from which no departure may ever be tolerated.  This was accordingly a case where, depending on the circumstances, the “proviso” in section 44(1) of the Supreme Court of Judicature Act might have been applicable.  In considering whether it was, the Court of Appeal was right to consider whether, properly directed, the jury would “inevitably” (Woolmington v Director of Public Prosecutions [1935] AC 462, 483) or “without doubt” (Stirland v Director of Public Prosecutions [1944] AC 315, 321) have convicted.

The Board cannot, however, accept that this test was satisfied in the present case, nor do the Court of Appeal’s reasons support its conclusion that it was.  It is perhaps unnecessary to examine those reasons in detail, since counsel for the State found himself unable to support them.  They are open to obvious criticisms.  For example, the failure of Basdeo to report the appellant’s allegedly corrupt approach to the police was “of particular significance” only on the assumption that her evidence was correct: on his account there was nothing to report and the omission was of no significance.  The court regarded the appellant’s statement that all arrangements had been made as irreconcilable with his contention that the money represented fees, but it was wholly consistent with his contention that he had arranged (as he had told the magistrate) to apply for bail once his fee had been paid.  The court was wrong to say that the WPC supported Basdeo in the reason advanced by the appellant for wanting the money: her evidence did not support Basdeo, and was closer to that of the appellant.  He did not, as the court held, confirm to the WPC the purpose for which the money was to be paid, if that purpose was to bribe the magistrate and the prosecutor.  The court could not fairly hold the circumstances of collecting the money at the Kentucky Fried Chicken branch against the appellant, even acknowledging that Basdeo suggested the venue, when the appellant was plainly reluctant to go there and was only induced to do so by deceit.  The court gave no weight to the appellant’s evidence.  It was not satisfactory to observe that the “only divergence” between the appellant and the prosecution witnesses was that he claimed the money represented fees when this difference was fundamental.  As pointed out by the House of Lords in R v Pendleton [2001] UKHL 66, [2002] 1 WLR 72, para 19, the Court of Appeal is not and should never become the primary decision-maker, and it has an imperfect and incomplete understanding of the full processes which led the jury to convict.  In the present case the jury deliberated for what was, by local standards, an unusual length of time.  It was not a straightforward case.  It cannot be said that, properly directed on the appellant’s credibility, the jury would inevitably or without doubt have convicted.

For these reasons the Board concluded that the appeal should be allowed and the appellant’s convictions quashed.  Having regard to the term already served by the appellant, a retrial was inappropriate.  The Board invited written submissions on the award of costs.       
1.