Saleem, R (On the Application Of) v Serwan & Anor [2015] EWCA Civ 123

[2015] EWCA Civ 123Case No A2/2014/4091
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE LEWIS)
Venue Royal Courts of JusticeDate Wednesday, 14 January 2015
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE LEWISON
LORD JUSTICE McCOMBE
Between
THE QUEEN ON THE APPLICATION OF SALEEMAppellantv
Between
SERWAN & ANRRespondent
DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Miss Abigail Bright (instructed by Liberty Solicitors) appeared for AppellantMr Paul Higgins (instructed by Horwich Farrelly Solicitors) appeared for Respondents
J U D G M E N T

LORD JUSTICE McCOMBE:

This

[1]is an appeal, brought as of right, by Mrs Shamila Saleem against the order of Lewis J made on 28 November 2014 committing her to prison for a period of eight months for contempt of court.[2]The contempt alleged was the making of false statements, verified by statements of truth, in particulars of claim and in a witness statement of 1 November 2010 in an action brought by her against Mr Sherzad Serwan and Liverpool Victoria Insurance Services, it being said that she had no honest belief in the truth of such statements.[3]The appeal now brought is only in respect of the sentence imposed.[4]At a very late stage in the proceedings, to which I will return below, the appellant admitted the allegations of contempt made against her.[5]The background facts were that she, in her proceedings, claimed that she was a passenger in a taxi driven by a Mr Abdul Jamil. Jamil also claimed that he had been driving his car in Brudenell Street in Leeds on 3 April 2009 and was carrying two female passengers, namely, the appellant and Mrs Fharhana Kazmi. He said that the driver of another vehicle failed properly to give way to his vehicle when that should have been done and a collision ensued. He claimed to have suffered injuries and produced a medical report in support. Two supposed passengers, this appellant and initially Mrs Kazmi, also made such claims alleging the same negligence and supported the claims with medical reports. The second defendant, the insurers Liverpool Victoria, became suspicious of the claims and a dispute ensued as to whether the accident had occurred at all.[6]The trial of the claims, together with a further claim made by Mr Mohammed Aziz, to whom I shall also return, was fixed for a five day hearing beginning on 19 May 2014. On 19 November 2013, however, Mrs Kazmi, wrote to the second defendant's solicitors admitting, in fulsome terms, that the claims that she for her part had made had been fraudulent and that the accident had never occurred at all. Nothing daunted Mr Jamil and the appellants maintained their claims.[7]Mr Aziz also made a claim against a different insurers in respect of a different alleged collision said to have occurred when driving his car on 7 April 2009 along a road called Gledhow Valley Road also in Leeds. He too maintained that another vehicle had failed to afford proper priority to his vehicle and that a collision had occurred. He too claimed damages for personal injuries and produced particulars of claim and a witness statement. In his case these were dated 22 October 2010, in purported verification of his claims, his alleged injuries and were supported by medical evidence.[8]The underlying circumstances in which suspicions arose showed that there was a degree of cooperation or collusion in relation to the obtaining of the insurance policies, the details of which now do not matter.[9]The trial of these claims arising out of these two supposed accidents came before Lewis J at Leeds on 19 May 2014.[10]Mr Aziz then maintained his story and gave evidence, the appellant did likewise. On that occasion Mr Jamil, the supposed driver in the appellant's case, did not attend the trial. Mrs Kazmi gave evidence confirming that her claim had indeed been fraudulent, confirming the contents of the letter she had written in November of the previous year and saying that the supposed accident involving Mr Jamil's car in which she had previously said she had been a passenger had not occurred at all.[11]In a judgment delivered on 9 June 2014 the judge dismissed all the claims made by the various claimants, including this appellant, and in doing so found that neither accident had occurred. His full reasons can be found in the judgment of which the neutral citation is [2014] EWHC 1846 (QB).[12]There is no need to say more about the grounds on which the judge made his findings at trial and perhaps the only further trial feature that needs to be mentioned in the context of this appeal is that the appellant, acting in person at the trial, cross-examined Mrs Kazmi extensively as to the veracity of her evidence, putting to her a somewhat strange case that she, for her part, was making up the allegations out of fear of the consequences from a man whom it was suggested would return from Pakistan and do damage to or abduct her children. The judge expressly rejected that imputation of further dishonesty made specifically by this defendant against Mrs Kazmi.[13]Permission was subsequently given to the insurance company to bring proceedings for a contempt against all four claimants in respect of their statements of truth, in their statements of case and in their witness statements in the personal injury actions. Comprehensive application notices, which, it has been observed in argument, were not before us, were issued on 18 July 2014 making ten allegations of falsity against Mr Aziz, eight allegations against Mrs Kazmi and seven and eight allegations respectively against Mr Jamil and the appellant.[14]The committal hearing was listed for three days in November 2014. As Miss Bright has sought to emphasise to us, all the alleged contenders, except, obviously, Mrs Kazmi, seem to have been party to the request for an oral three day hearing.[15]The appellant filed a witness statement dated 19 November 2014 in the contempt proceedings denying all contempt allegations and steadfastly maintaining her version of events, which the learned judge had rejected, obviously on a different standard of proof, at the trial of the civil proceedings. Mr Jamil did likewise in a statement of 11 November. Mr Aziz filed no evidence.[16]The applications came before Lewis J on 26 November 2014.[17]It appears, as Mr Higgins for the respondent has informed us, that this appellant had also filed an application inviting Lewis J to recuse himself from the hearing of the contempt proceedings.[18]At the commencement of the hearings on 26 November 2014 the judge had the allegations put to each of the respondents by way of an informal arraignment in the court before the full hearing. Mr Aziz and Mrs Kazmi at that stage admitted the contempts. The appellant and Mr Jamil maintained their innocence and Mr Higgins tells us that the proceedings went on to consider the case of Aziz and the mitigation in his case. The judge had been informed that the recusal application made by this appellant was still live and was to be dealt with in due course.[19]There followed, after the Aziz mitigation, a short adjournment and, when the hearing was resumed shortly after midday, counsel for the appellant and for Jamil asked that the allegations of contempt be re-put to their respective clients. At that stage each admitted the contempt allegations that had been made against them.[20]By his judgment on the contempt applications delivered two days later on 28 November 2014 the judge imposed sentences of six months' imprisonment on Aziz, eight months' imprisonment on each of the appellant and Jamil and a sentence of 12 weeks' imprisonment, suspended for six months, upon Mrs Kazmi.[21]Upon the present appeal the only issue that arises is as to the sentence imposed upon the appellant, which, it is submitted in Miss Bright's careful submissions, was excessive. It is submitted that the learned judge erred in applying the principles for the reduction of sentence in respect of admissions of guilt by persons accused of offences when one considers those principles dovetailed with the principles concerning disparity of sentence in the criminal courts.[22]In reality the submission is that the appellant should have been sentenced indistinguishably from Aziz, who received a six month sentence, in contrast to the sentence of eight months imposed upon Jamil and this appellant after their respective admissions of guilt only some two hours or so later than those made by Aziz. In other words, the argument is not so much as to the discount afforded for the pleas of guilty but as to the disparity of the sentence imposed upon the various respondents.[23]In her written submissions Miss Bright has referred us to the Sentencing Guidelines Council Guidance on reductions of sentence for a guilty plea, in its revised form of 2007, and the decision of the Criminal Division of this court in the well-known case of Caley & Ors [2013] 2 Cr. App. R. (S.) 47.[24]There is no dispute that, in the normal course, where a plea of guilty is entered at "the door of the court" the appropriate discount for such a plea of guilty is in the region of 10 per cent. The submissions by Miss Bright are, in effect, that all the respondents to these applications made their admissions at "the door of the court", or closely thereafter, and that each should have received the same sentence and certainly none should have been sentenced more severely than was Mr Aziz. It is submitted in paragraph 3.15 of Miss Bright's skeleton argument that the result was that the appellant's sentence did not adequately reflect the credit that she should have received for her admissions.[25]The application of a 10 per cent discount in the present case would imply a sentence of close to nine months' imprisonment as opposed to eight months had the appellant contested the allegations to the bitter end. There is no doubt in my mind, and Miss Bright, on my questioning, did not protest it, that a sentence of eight months' imprisonment was entirely appropriate as a sentence for these contempts if the matter against her client had stood alone. These were contempts committed in a case where they were persistent and repetitive and involved the impugning of the integrity of the remorseful Ms Kazmi. The only question is whether the more lenient sentence passed upon Aziz in his separate case brought on rather separate facts would require the court to reduce the entirely proper sentence that was passed on this appellant.[26]It is well established in criminal jurisprudence that an otherwise suitable sentence will not be reduced merely because of leniency displayed to another accused. The threshold for success on an appeal against sentence on the ground of disparity is high. See Archbold 2015, paragraph 5-159. Equally the courts do not reduce sentences to achieve two over-lenient sentences rather than one over-lenient sentence. See Blackstone's Criminal Practice 2015, paragraph 26-56.[27]In dealing with the appellant's case the judge stressed the persistent nature of the appellant's false statements and in dealing with her position as compared with that of Mr Aziz he said at paragraph 23:
"Counsel also submitted that there was no significant difference between her case and that of Mr Aziz as they both admitted responsibility on the same day, albeit that Mrs Saleem made her admission two hours later. In my judgment, the two are not in the same position. Mr Aziz made his admissions as soon as the allegations were read out and, by his conduct taken as a whole, has demonstrated real remorse for what he did. Mrs Saleem did not admit the allegations, even when they were first read to her ..., but only admitted them later and her conduct, taken as a whole, does not demonstrate any real regret or remorse."
[28]It must be remembered that this judge had conduct of the proceedings throughout.[29]Aziz's civil claim, while made in the course of a series of claims and in respect of, without being formal about it, a rather similar conspiracy, was in respect of a different alleged accident. The judge took the view he did, that, "by his conduct as a whole", Mr Aziz had demonstrated real remorse for what had happened. In contrast the judge considered that this was not so in the appellant's case.[30]The judge had seen throughout the conduct of these contemnors and he was best placed, in my judgment, to judge the nature of their contempts, their respective roles and the claims that they had made and the extent to which they had shown real remorse.[31]In such circumstances I do not, for my part, consider that the court would be justified in interfering with the sentencing judgment that the judge exercised. I would dismiss the appeal.

LORD JUSTICE LEWISON: I agree.

Cited in 1 later judgment