Cakir, R. v [2005] EWCA Crim 1286

Case No 2004/4518/C2

[2005] EWCA Crim 1286

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 10th May 2005

Strand

London, WC2

B E F O R E:

LORD JUSTICE TUCKEY

MR JUSTICE DAVID STEEL

MRS JUSTICE GLOSTER DBE

Between

R E G I N ACrown

-v-

Between

HUSEYIN CAKIR

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

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MISS E EDHEM appeared for Appellant

MR A COLMAN appeared for Crown

J U D G M E N T

LORD JUSTICE TUCKEY:

[1]On 9th July 2004 at the Inner London Crown Court before Recorder Price QC and a jury, the appellant Huseyin Cakir was convicted of blackmail and subsequently sentenced to 51 months' imprisonment. He appeals against conviction by leave of the single judge. His complaint relates to the evidence of a Turkish interpreter who gave evidence for the prosecution at trial.

[2]The offence was alleged to have been committed on 9th January 2004, although there was a considerable background to it. There had been a partnership between the victim of the offence, Halil Esmene, and Mr Gurtunc in a dry-cleaning business. There came a time when Mr Gurtunc wanted to withdraw from the partnership and Mr Esmene agreed to buy him out for approximately £62,000. This was to be paid by a lump sum of about £15,000 followed by instalments. A dispute arose over the payments and as a result Mr Gurtunc went to see Mr Esmene on a number of occasions, often accompanied by other men, including the appellant. Subsequently the appellant went to visit without Mr Gurtunc.

[3]On 24th December 2003 Mr Esmene's wife was visited by a number of men, after which the police installed covert video and recording equipment at Mr Esmene's dry-cleaning shop.

[4]On the day of the offence the appellant, his co-accused Onder Korkmaz and two other men went to see Mr Esmene. Their visit was recorded on the equipment which had been installed by the police. The tape was of very poor quality because of machinery in the shop and a door chime.

[5]Mr Esmene's evidence was that on that day three unknown men came into his shop and asked for money. When he told them that he did not owe any one of the men went out and returned with the appellant who threatened him. The appellant had said to him:

"It is better to come to an agreement to pay the money or it will be a pity what will happen afterwards. It will be a pity on your life as well."

By this Mr Esmene said he understood the appellant to mean either you pay the money or you will die. He went on to say that after the three other men had left the shop, the appellant had also said to him:

"You are playing with your life."

[6]The prosecution called a Turkish interpreter, Mr Duzen, who had listened to the recording and interpreted what he had heard. The original English transcript which he produced contained many question marks and blanks. But in the course of the trial he listened to the tape again and amended the transcript. His amended transcript was put before the jury as exhibit 4A. We unfortunately do not have a copy of this exhibit; we only have the original. But the crucial part of Mr Duzen's evidence is not in doubt. It relates to what the appellant is alleged to have said at the very end of the conversation after the other three men had left. Mr Duzen's evidence was that the appellant told Mr Esmene "You will not remain in life" -- in other words 'You will die'. He told the jury that he had listened to this passage about 75 times and was sure that this was what the appellant had said. He added that he would not commit himself to saying that he had heard a death threat unless he was absolutely certain about it. It was suggested to him in cross-examination that the words were "never in your life would he be able to pay" rather than "you will not remain in life", but he disagreed with that suggestion emphatically.

[7]So this was the evidence for the Crown about what was said in the course of this conversation, particularly at the very end of it. In his evidence the appellant denied he had issued a death threat. The gist of what he was saying at the end of the conversation was that unless the debt was repaid demands for it would go on and with interest it would mount so that Mr Esmene would never be able to repay it in his lifetime.

[8]The apellant's account was supported by another Turkish interpreter who was called for the defence, Miss Simsek. She said that she had not heard any death threat made on the tape when she listened to it with Mr Duzen on what he claimed to be his state of the art equipment. She had heard the word "life" but not the word "remain". With additional Turkish words which she had not been able to hear, she deduced that the appellant could have said "You cannot escape because the interest will be going on for life".

[9]The Recorder fairly summarised the various accounts of what transpired on 9th January including the evidence of the interpreters. No complaint is or could be made of his summing-up. He introduced the evidence of Mr Duzen by saying:

"I have no doubt you will all remember him very well. Extremely well qualified, as he was the first to tell us, an experienced interpreter since he graduated in 1985. He has at his disposal sophisticated and very expensive headphones. You heard him talk about what he was able to hear."

We are told that in support of his evidence that he was an experienced interpreter Mr Duzen had said, as his statement to the police records, that he was a member of four professional bodies and had a number of qualifications. He also added that he was on the Metropolitan Police interpreters list and indeed assessed those seeking to be placed on that list.

[10]Unknown to counsel appearing at the trial, Mr Duzen had in fact been suspended from this list in March 2004 -- four months before he gave evidence at the appellant's trial. The grounds for his suspension related to what had been called his "claiming practices", that is to say his claims for expenses. His practice of taking statements from witnesses without the supervision of a police officer contrary to instructions was also of concern. An internal police enquiry subsequently concluded that Mr Duzen had in fact over-claimed his expenses but no criminal or civil proceedings were taken against him as a result. His suspension from the list however was made permanent on 6th September 2004.

[11]There is a statement before us from Mr Pratley, head of the Linguistic and Forensic Medical Services Branch of the Metropolitan Police, which says that as Mr Duzen's linguistic skills were not in question they had been advised not to inform his professional bodies of the action they had taken. Despite his suspension, authority had been given for Mr Duzen to continue working on this case. There is an issue as to whether the officer in the case informed the CPS of the suspension, which we do not have to resolve. Counsel was certainly not informed.

[12]Miss Edhem for the appellant (then as now) submits that Mr Duzen's evidence about the death threat formed an important part of the Crown's case against the appellant. What Mr Duzen said was disputed by the appellant and his interpreter Miss Simsek. There was also the written evidence of another interpreter instructed by the Crown which formed part of the unused material which the defence put before the jury. It also supported the appellant's case, although not in precisely the same way as Miss Simsek had done. Mr Duzen had laid great emphasis on his experience and integrity. If they had known of his suspension, which cast doubt on his integrity, they might have had doubts about his evidence about the death threat which he gave so adamantly. Although Miss Adhem accepts that this was not the only evidence against the appellant, she submits that one cannot say with confidence that the jury would have reached the same conclusion as they did if they had known of Mr Duzen's suspension and so she submits the conviction is unsafe.

[13]Mr Colman for the Crown submits that the evidence of the death threat was not crucial. This was an offence of demanding money with menaces, not an offence of threatening to kill. The body language used by the appellant and the other three men recorded by the CCTV and the evidence of Mr Esmene was compelling. It was the Crown's case that the offence had already been committed before the disputed threat was made. The jury must have accepted this because they convicted the co-defendant who had left the shop by that time. He submits that the defence at trial were assisted by several Turkish interpreters and that both defence counsel were fluent Turkish speakers. The challenge to Mr Duzen's evidence focused on a very few words at the end of a lengthy conversation and not so much on what the Turkish words meant but on what he was or was not able to hear on the tape.

[14]We have come to the conclusion that this conviction cannot stand. Mr Duzen's evidence was very emphatic. He said that he had seen and listened to the tape 75 times and that he would not have said that he had not heard the offending words unless he was certain that they had been spoken. He very much prayed in aid his experience and integrity and so the fact of his suspension might have had a significant impact upon the way he presented himself and the certainty of the evidence which he gave to the jury.

[15]Mr Colman's submission that the offence was complete before the disputed words were uttered was a submission that he made to the jury and may explain why the co-defendant was convicted. But it is very difficult to ignore the impact which the alleged death threat would have had on the jury being the very last words that the appellant is alleged to have spoken to the victim before leaving him. It is impossible to say, in our judgment, that had this evidence not been given the result for the appellant would have been the same. Although the conviction of the co-defendant has caused us to pause, the judge left the case to the jury against both these defendants on the basis of a joint enterprise without reminding them, as counsel for the Crown had submitted, that in the case of the co-defendant they could ignore the evidence of what the appellant had said to the victim after he had left. The judge simply gave the standard joint enterprise direction without making any such distinction and so we do not think that one can conclude from the co-defendant's conviction that the jury were satisfied that this offence was complete by the time he left and still less does it convince us that this evidence about what was finally said by the appellant had no impact on their verdict in his case.

[16]For those reasons this appeal against conviction must be allowed.

LORD JUSTICE TUCKEY: Mr Colman, as my Lord points out, the appellant was remanded in custody for about 8 months, is that right, before the trial and he has done another ten months since. Is that right?

[18]MR COLMAN: My Lord.

MR JUSTICE DAVID STEEL: Have I got that wrong?

[20]MISS EDHEM: He was remanded for nine months, I may have that the wrong way around, he has nine more months to go if that helps.

LORD JUSTICE TUCKEY: He has served the equivalent of what are we saying? Nearly three years.

[22]MR JUSTICE DAVID STEEL: As I understand it he has served the equivalent of three years. Is that right?

[23]MISS EDHEM: He was arrested --

MR JUSTICE DAVID STEEL: Just tell us how long he has been in custody, that is all we need to know.

LORD JUSTICE TUCKEY: Was he in custody from the moment he was arrested after the offence?

[26]MISS EDHEM: Yes, 12th January was his arrest.

LORD JUSTICE TUCKEY: He has been in custody from 12th January --

[28]MR COLMAN: 13th January.

LORD JUSTICE TUCKEY: -- to today and that is then very nearly 16 months, the equivalent of about 32 months. What do you say about retrial?

[30]MR COLMAN: My Lord, it is a matter for your Lordships given the difference between the sentence imposed and the sentence served whether it is in the interests of justice to send this man back for retrial.

LORD JUSTICE TUCKEY: We may have to decide it, but we do not make the policy decision as to whether in principle there should be a retrial, that is made by the Crown. Are you saying that the Crown do seek a retrial or do not?

[32]MR COLMAN: My Lord, the Crown would in principle seek a retrial given the fact that the case against this appellant was originally brought to trial without the additional evidence of Mr Duzen. When it went to trial in the first place Mr Duzen had not given those additional words. That did not form part of the Crown's case.