Al-Zubeidi, R v [1999] EWCA Crim 81

EWCA-Crim
Al-Zubeidi, R v
[1999] EWCA Crim 81 · 1999-01-18

LORD JUSTICE ROCH:

On

13th March 1998, at the Kingston Crown Court before Mr Recorder Boothby, the appellant was convicted of two counts of theft, Counts 1 and 2 in the indictment, and one count of robbery, Count 3 in the indictment, and was sentenced to a total of eight years' imprisonment. He was sentenced to one year's imprisonment on each of the theft charges and eight years' imprisonment on the robbery charge, all those sentences to run concurrently. He appeals against conviction by leave of the Single Judge.The case for the prosecution was that the appellant had proposed a scheme for the importation of BMW car parts from Germany which could be sold in this country more cheaply than through an authorised BMW dealer, but which yet could be sold in a way to make a substantial profit.The appellant is an Iraqi national who came to this country in 1995. He met by chance another Iraqi national, Mr Hassani, with whom he had been a close friend when at school in Iraq. Mr Hassani had introduced the appellant to another businessman with a successful business in this country, a Mr Mahmoud, who was also an Iraqi national. The appellant had suggested this scheme to Mr Hassani and to Mr Mahmoud and invited them to put money into the scheme. Mr Hassani had been unable himself to raise money, but he had persuaded a third Iraqi national, Mr Jumal, to lend him, Mr Hassani, £5,000, and that was to be Mr Hassani's contribution to the capital necessary to start this scheme.Mr Mahmoud was to introduce a much larger sum from his own funds, namely £35,000.It was the prosecution's case that the appellant never intended this BMW spare part scheme to reach fruition. This was merely a means whereby the appellant could get hold of a substantial sum of money from Mr Hassani and from Mr Mahmoud.Mr Hassani, so the prosecution case was, handed his £5,000 to the appellant. Mr Mahmoud withdrew £35,000 from the bank. He met the appellant. He followed the appellant, with the appellant driving his Rover car and Mr Mahmoud driving his Audi car, to the appellant's house. At the appellant's house and in the appellant's house, but in the absence of anyone else, Mr Mahmoud had handed £15,000 to the appellant, but had kept the remaining £20,000 on his own person. He had split the money in that way so that the money could be carried by him and the appellant on their persons. The appellant and Mr Mahmoud got into the appellant's car and set off, as Mr Mahmoud believed, to go to the continent to set up the spare part scheme.The appellant had made an excuse to return to his house, namely that he had forgotten the maps needed to get to their destination in Germany. Back outside the appellant's house, Mr Mahmoud had got out of the car and there he had been attack by two white men and by the appellant and robbed of the £20,000.The prosecution's evidence derived further support, first, from a further incident described by Mr Hassani, namely receiving the following morning a telephone call from the appellant in which the appellant laughed about rich people and how they deserved what he, the appellant, did to them. Mr Hassani gave evidence of a second phone call that day from the appellant in which the appellant asked whether the police had been informed and Mr Hassani said that the police had not been informed, although that was untrue. By that time the police had been informed. Mr Hassani's evidence was that the appellant then threatened to cut him to pieces if the police were involved.Mr Jumal gave evidence of lending £5,000 to Mr Hassani for the importation of BMW spare parts. A fourth witness, also an Iraqi national, a Mr Mohamed, gave evidence that the appellant had tried to recruit him to assist in a robbery. The appellant had told him that there would be in his car an Iraqi carrying £30,000, and he wanted Mr Mohamed to assist him in robbing this man. The appellant had not named the man and Mr Mohamed had refused to have anything to do with it.Mr Mohamed's evidence was that at that meeting between him and the appellant, after he had refused to have anything to do with the scheme, he had seen the appellant talking to various people, including two white men. The descriptions Mr Mohamed gave of those men broadly tallied with the descriptions given by Mr Mahmoud of the two white men who had attacked him outside the appellant's house.The matter came before the Kingston Crown Court on 9th March 1998, and on that morning the appellant pleaded guilty to the three counts. When counsel for the appellant, who at that stage was represented by counsel and solicitor, was mitigating, it emerged that the appellant's instructions to his lawyers were that he had not committed these offences - there had been no such offences committed - but that he was insisting on pleading guilty. That led the Recorder to enquire of the appellant if he wished to change his pleas. The appellant did so, and the Recorder gave him leave to withdraw the pleas of guilty. The prosecution opened the case and the lunchtime adjournment was reached.At the end of the lunchtime adjournment counsel for the appellant informed the Recorder that he was obliged to withdraw from the proceedings. The Recorder was told that counsel for the appellant had, over the luncheon adjournment, consulted senior counsel who were at the court and had been in touch with the Bar Council, and that reasons existed which required him to withdraw from the case.The Recorder wished to know precisely what those reasons were. Mr Bayliss, who appeared for the Crown and who has appeared for the Crown on this appeal, very properly invited the Recorder to deal with that matter in the absence of the prosecution and the prosecution, including counsel, solicitor and the police officer in the case, withdrew from the court.The Recorder was informed of the precise nature of the change of instructions which embarrassed counsel. The Recorder accepted that counsel was embarrassed and that it was proper for counsel to withdraw. At that point the Recorder asked counsel whether he was going to assist the appellant with his application to adjourn the trial so that other counsel could be instructed. Counsel said that he was happy to do that and he set out the reasons why, in his submission, an adjournment should be granted.The Recorder, at page 9E of the transcript for Monday 9th March 1998, took the view that if he allowed the adjournment so that fresh counsel could be instructed when he, the Recorder, knew that the appellant was putting forward a change of defence for which his own counsel thought there was no good explanation, that defence being changed in a fundamental way from the original defence, he would be "colluding in deceiving the jury".Counsel for the appellant protested that it would not have been right for the Recorder at that stage to decide that the appellant, in putting forward his new defence, was lying and could not be believed. The appellant was entitled to the opportunity to give proper instructions to new counsel. Then the Recorder said this at page 11B of the transcript:
"You are saying that the court should be privy to a time consuming and very expensive device that achieves nothing except to allow defendant to fundamentally change his instructions in a way that one counsel finds untenable without the jury knowing it?"
Those observations by the Recorder have to be seen against the background that the appellant had, when interviewed by the police, stated that there was no proposed scheme in relation to importing BMW parts from Germany and that no offence of the type described by the prosecution witnesses had occurred; that the evidence against him was made up because he, the appellant, had quarrelled with Mr Mahmoud over Iraqi politics. Mr Mahmoud was a member of a faction who were opposed to Saddam Hussein. His refusal to join that faction had angered Mahmoud and was the reason for this complaints of theft and robbery being fabricated: in order to get him, the appellant, into trouble.The appellant's solicitors served a statement of defence on 23rd December 1997. The essence of the defence was set out in the first two paragraphs of the second heading in that statement of defence. Those read:
"The defendant and Mahmoud were driving towards central London on the 24th of July 1997 when Mahmoud attempted to pressurise the defendant into joining his group. This was not the first attempt by Mahmoud and other members of his group to recruit the defendant. There were previous unsuccessful attempts for the same purpose. In addition to Mahmoud, the group consisted of Al-Hassani, Ali Jasem, Mohamed and others.
The purpose of the group's activities is essentially financial gain under the guise of active Iraqi political opposition. The group has links in Germany and its activities were mainly manifested by the provision and supply of forged passports and travel documents for the purpose of facilitating illegal entry into the United Kingdom, and other European countries to asylum seekers (mainly Iraqi's)."The Recorder refused the application for an adjournment and the consequence of that was that the appellant had to conduct his own defence.The prosecution witnesses gave evidence along the lines which we have already indicated, and the jury were made aware of the appellant's answers in interview. It is clear from the Recorder's summing-up that the appellant did not understand the process of cross-examination because the Recorder told the jury that he had had to intervene in the case much more than he normally would do in order to convert statements by the appellant to the prosecution witnesses into questions which those witnesses could answer.The appellant did not, when it came to the defence case, give evidence nor did he call any witness. He did address the jury from the dock. Mr Bayliss told us that that address lasted some hour and a half and contained many assertions by the appellant which had no basis in any of the evidence that the jury had heard. That again was a matter pointed out to the jury by the Recorder when he summed up, that those assertions were not evidence. The jury convicted and the Recorder imposed the substantial term of imprisonment which we have indicated.Therefore the position here was that the Recorder had exercised his discretion to allow the appellant to withdraw his guilty plea. The Recorder had also exercised his discretion to permit counsel for the appellant to withdraw at a very early stage in the trial.Mr Bayliss, with considerable realism, accepted that the Recorder, in considering the application for an adjournment to allow fresh counsel to be instructed, applied an inappropriate test. Mr Bayliss did not dispute the submission of Mr Brock that the appropriate test is that to be found at page 304 of the current edition of Archbold at paragraph 4-41:
"The overriding consideration must be the requirements of justice, for the prosecution and for the defence, in the circumstances of the particular case."
This Court is disturbed by the Recorder's insistence on knowing the precise reason for counsel's withdrawal in the absence of the appellant waiving his entitlement to privilege for the instructions he has given to his lawyers.In our view where a court is told by responsible counsel that there has been a fundamental change in his or her instructions which require him or her to apply for leave to withdraw from the case, the court should, in the normal case, accept what counsel tells the court. If there are reasons to doubt that that is the true position, then it may be proper for the court to ask the defendant if the defendant is prepared to waive the defendant's privilege in respect of instructions given to his or her lawyers. The defendant may also be told perfectly properly that if the privilege is not waived and the true position remains uncertain, that may weigh against the granting of an adjournment for the instruction of fresh counsel.We are also disturbed by the Recorder's reference to counsel's withdrawal in the summing-up. Although Mr Brock did not rely on this point in advancing this appeal - the reference comes at page 8E to 9F of the transcript of the summing-up - the reason why the Recorder referred to counsel's withdrawal was that the appellant, in his statement from the dock, had proferred an explanation for that withdrawal which was not that given by counsel to the Recorder. In our view if the Recorder was to refer to the withdrawal of counsel (and in the circumstances of the appellant having made reference to it in his statement from the dock, there was no reason why the Recorder should not) the reference should have been limited to directing the jury that counsel's withdrawal and the reasons for it could afford no assistance to the jury in reaching proper verdicts in this case and that they should disregard, when considering their verdicts, both the fact of withdrawal and any suggested reason for it.This position is therefore reached: that it is conceded that the Recorder failed to exercise his discretion properly because in exercising it he applied an inappropriate test. He believed that the jury, in a future trial, would be misled, and that he, were he to grant the adjournment, would be a party to such deception.As counsel for the appellant pointed out to the Recorder, it would not be the position that a second jury would be deceived for two reasons: first, the new story might be the truth; and, second, the second jury would, both in the answers the appellant had given in interview and in the statement of defence delivered in December 1997, have ample evidence of a change of story of which the second jury would be aware. A second jury could not be deceived in the sense of being led to believe that the appellant had always relied on his new story.Mr Bayliss submits that the fact that the Recorder did not exercise his discretion on a proper basis does not mean that these convictions should be set aside. Mr Bayliss correctly reminds us that the test is whether these verdicts are safe or unsafe. He submits that although the application was refused, the trial that followed was still a fair trial. The appellant was assisted in presenting his case in cross-examination. The solicitor remained and gave some assistance, although Mr Bayliss of course cannot help us as to the extent of that. The Crown were not able to make a closing speech, but the appellant was permitted to say all that he wished to say to the jury from the dock. In that statement he was permitted to make several assertions which were wholly unsupported by any evidence. Nevertheless, he put forward in that statement, submits Mr Bayliss, his case with some clarity and with considerable detail. This was a formidable case for the prosecution and there can be nothing unsafe about the jury's conclusions.The conclusion that we have reached is that albeit the Recorder attempted to see that the appellant, without counsel, obtained a fair trial, this was not a case where we can say that in the result a fair trial was had. These were serious offences faced by a man of good character which could, and did, lead to a long sentence of imprisonment in the event of conviction. At the time the application for an adjournment was made, the trial had only just started.This was a man for whom, although he spoke English well, English was not his first language. He was a man who was wholly unacquainted in the conduct of a trial in England and Wales. It is clear that he had no concept of how to cross-examine. He chose not to give evidence, and without evidence there was no foundation for the defence that he was advancing.It may well be that there were witnesses who might have been available to support his case. We have in mind particularly the appellant's wife who, according to the evidence of Mr Mahmoud, was present at least during part of the incident in which he was robbed.In the circumstances of this case we consider that a proper exercise of the Recorder's discretion would have been to grant the adjournment and to allow the appellant to instruct fresh counsel. The defence he wished to advance was complex. It involved putting to the prosecution witnesses that they were party to a conspiracy involving opposition to the present regime in Iraq and the running of weapons in pursuit of the aim of overthrowing that regime. Further, this was a case in which the appellant needed clear advice as to the necessity for him to give evidence and to call any witnesses that might be available to him if his defence was to have any prospect of carrying weight with the jury.Mr Brock concedes that this is a case where, if the convictions are quashed, there must be a retrial. We are satisfied that this is a case where these convictions are unsafe, that they must be quashed and that a retrial must be ordered.We allow the appeal. We quash the convictions. We direct a fresh indictment to be preferred in the same terms as the indictment upon which the appellant was tried.Mr Brock, unless you wish to apply to the contrary, there is a matter of the appellant's remand. Do you suggest that it should not be in custody?MR BROCK: My Lord, as far as I am aware, he was in custody pending the trial. That being the case, I think I would be in difficulty, so I do not apply for bail.

LORD JUSTICE ROCH: I would agree with that. He will be remanded in custody.

MR BROCK: My Lord, could I ask - of course it is quite an old matter in any event - whether now this Court has the power to order that the pre-trial review must now take place again at Kingston Crown Court in relation to the issue being done so within 14 days perhaps, and perhaps more importantly, my Lord

LORD JUSTICE ROCH: Is that realistic? Are fresh lawyers going to be a position to be ready in 14 days?

MR BROCK: I would have to advise those instructing Mr Karu at the trial to make a decision immediately - within days - whether they should continue to represent the defendant. If not, then bringing it before the court within 14 days, in my submission does not cause any real problem. It certainly means that those newly instructed will be encouraged, and perhaps a timetable set for which the matter should come back before the court for a later pre-trial review, but it certainly directs everybody's mind to get on with it.The second matter I raise in relation to that, my Lord, is this. Given the fact that there was a lawyer in court but we note the detail of the note that he was taking - I have seen a note and it is not, in my submission, in sufficient detail - it may be appropriate for all parties - both prosecution, new defence counsel and the subsequent trial judge - if this Court say at this stage, and it would speed matters up as well, that transcripts be obtained of the main witnesses, which, of course, are the two victims and the other two key witnesses that the Crown relied upon. No doubt, in my submission, that would be of assistance to all parties and might save time eventually.

LORD JUSTICE ROCH: Do you have any applications?

MR BROCK: No other applications, my Lord.

LORD JUSTICE ROCH: Really?

MR BROCK: My Lord, as far as I am aware

LORD JUSTICE ROCH: Do you not want legal aid?.

MR BROCK: As far as I am aware, my Lord, legal aid was granted for today. For the forthcoming trial, if I need make an application I do, my Lord, make an application to be extended to new solicitors, if appropriate, and certainly for counsel for the forthcoming trial, if that need be made, my Lord.

LORD JUSTICE ROCH: Yes. We will grant legal aid for counsel and solicitors. We leave the identity of the solicitor to one side.

Mr Bayliss, do you want to say anything?MR BAYLISS: My Lord, in relation to the question of timing, perhaps the best course is if your Lordship was to direct that the new indictment be preferred within a set time. My Lord, from there the pleas and directions hearing, I imagine, would automatically follow and would be fixed by the Crown Court at Kingston.My Lord, in relation to the question of transcripts, I am not entirely sure whether it is necessary to order transcripts of some three days of evidence. The gist of the evidence can be gleaned from the summing-up, where it is set out in some detail.My Lord, I have a note of the cross-examination, but, of course, not really of any more than that. My Lord, whether it is really necessary to direct a full transcript I doubt.

LORD JUSTICE ROCH: There are the depositions and the account of the evidence in the summing-up.

MR BAYLISS: Yes.

LORD JUSTICE ROCH: Thank you.

Do you want to say anything about that?MR BROCK: My Lord, no. Obviously my learned friend has the advantage and if, as I believe is right, the witnesses gave evidence, it was by and large consistent with what we know from the depositions, and it may not take it any further ( slight pause ).

LORD JUSTICE ROCH: Mr Brock and Mr Bayliss, in view of the dates on which these matters took place, we direct that the new indictment be drafted within 14 days.

In relation to Mr Brock's application for transcripts of the witnesses' evidence, we do not grant that.MR BAYLISS: I am much obliged, my Lord.

Cited in 1 later judgment