Khan & Anor, R v [2005] EWCA Crim 3100

No: 2005/0580/C1 & 2005/0581/C1[2005] EWCA Crim 3100
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 2 November 2005
Strand
London, WC2
B E F O R E:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR IGOR JUDGE)
MR JUSTICE ELIAS
MR JUSTICE OUSELEY
Between
R E G I N ACrown-v-
Between
NAZEEM KHANCAMERON BASHIR
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J TRAVERSI appeared on behalf of KHANMR R EVANS appeared on behalf of BASHIRMR S TRIMMER appeared for CROWN
J U D G M E N T
[1]THE PRESIDENT: On 4th June 1999 in the Crown Court at St. Albans before His Honour Judge Findlay Baker QC and a jury, Nazeem Khan and Cameron Bashir were convicted of conspiracy to obtain property by deception in count 1. Khan was also convicted of two counts of dishonestly obtaining a communication service (counts 2 and 4) and two counts of possession of a thing intended to avoid payment or service (counts 3 and 5). A co-accused Unmear Gul was acquitted by the jury.[2]On 13th August both appellants were sentenced to nine months' imprisonment in relation to the conspiracy count (count 1). Khan was also sentenced to three months' imprisonment on counts 2, 3, 4 and 5, all to run concurrently with each other but consecutive to the sentence for conspiracy in count 1. Therefore the sentence on him was 12 months' imprisonment.[3]This case now comes as an appeal following a Reference by the Criminal Cases Review Commission. In view of the conclusion which we have reached it is unnecessary to give a lengthy judgment or analysis of the relevant facts. This is a troublesome case which involves a dishonest police officer and his criminal girlfriend.[4]The essential allegation in this conspiracy was that these two appellants conspired together to use what are described as cloned credit cards in order to purchase a number of valuable goods like designer sunglasses, watches and car engine parts. Khan was also charged with dishonestly obtaining telecommunication services and possession of a mobile phone intending to avoid payment for those services. Effectively the offences related to an allegation that he had been in possession of and used two cloned mobile telephones.[5]An examination of the detailed evidence suggested a powerful case against these two appellants. It is also plain that their alleged criminality was inextricably linked.[6]The officer in charge of the investigation was DS Spackman (as he then was). It was of course fundamental that as a police officer he would carry out his duties with the commitment and integrity normally to be expected of police officers. His role in this case was absolutely pivotal. He was responsible for the conduct of the investigation and the preparation of the case for trial. That extended to participation in a PII application which was conducted in private before the trial judge. In addition to all that, he purported to give direct evidence which served to implicate the appellants.[7]The appellants' case at trial, and more particularly Khan's case, was that they had been, we use the colloquialism deliberately, "set up" by a woman called Joanne Fletcher. This woman was the ex-girlfriend of Khan and it was suggested that when he brought their relationship to an end she was anxious for revenge. To obtain revenge she needed the corrupt involvement of DS Spackman and that is what she achieved. In passing we note that she had convictions for fraud, theft and other matters of dishonesty, and indeed had been convicted of an assault occasioning Khan's wife actual bodily harm. Although, as we have indicated, there remained evidence independent of Spackman which served to incriminate the appellants, it is noteworthy that suspicions about the nature of the relationship between Spackman and Fletcher has not been newly minted for the purposes of this appeal. It was a direct suggestion at trial that Spackman had suppressed evidence and was responsible for planting incriminating objects. The contention was that such items as were found at the homes of these two appellants had been bought legitimately and receipts for some of them were improperly disposed of or lost during the course of police searches. Identifications and observations by Spackman were said to be dishonestly made or, although in context now perhaps this was less likely, honestly mistaken.[8]At trial Spackman strongly denied all these allegations of impropriety. What was not known at trial was that throughout the period of the investigation into this conspiracy there was a very close subsisting relationship between Spackman and Fletcher; a relationship which pre-dated Spackman's involvement as the officer investigating these offences. At that time too it was not known, but has subsequently emerged, that Spackman himself had become very friendly with a number of criminal associates, including a criminal called Powell.[9]We have been provided by the Criminal Cases Review Commission with a detailed statement of the reasons why this Reference has been made. We gratefully adopt some passages from the Reference as part of this judgment.[10]The facts relating to Spackman's criminal activity are briefly summarised. On 9th October 2002, by now he was an Inspector, Inspector Spackman was arrested on suspicion of conspiracy to steal something like £160,000 from the Hertfordshire Police. Arrested with him was the criminal Trevor Powell and the woman Joanne Fletcher. The case for the Crown was that Spackman had been involved in the investigation of car thefts during the course of which £160,000-worth of foreign currency was seized. While the true owner of this money was keen to recover it after no charges were brought against him, a number of issues arose as to the legitimacy and provenance of the money. So the police arranged for the money to be kept in a Hertfordshire Police bank account until the legitimacy or otherwise of the claim being made for the money could be established. In due course Spackman siphoned this money into a bank account controlled by Joanne Fletcher. He did this with the help of Powell. Powell's part in the operation was to obtain forged and falsified identity documents. With those false documents in his possession, Spackman presented to the police accounts department witness statements and other documents which purported to show that the money actually belonged to somebody called Joanne Taylor and it was therefore now appropriate for the money to be paid into her bank account. Joanne Taylor did not exist. It was a fictitious name for an individual who was Joanne Fletcher and the account in the name of Joanne Taylor was one which Joanne Fletcher had been operating for some considerable time. The money was duly transferred out of the police bank account into Joanne Fletcher's account and Spackman and she proceeded to embark on shopping expeditions and holidays and the placing of a deposit on a new car -- in effect thoroughly enjoying this ill-found, but new-found, wealth.[11]It was contended as part of the Crown's case against them at their trial that Spackman was infatuated with Fletcher. This was an echo of the suggestion at the trial of the appellants that Spackman was prepared to act dishonestly to incriminate Khan if that was what Fletcher required of him.[12]In due course Spackman, Powell and Fletcher admitted their parts in these offences. Fletcher claimed that she had become involved so as to put a stop to Spackman's pestering of her. Spackman's assertion was that his object had been to provide her with a better life, but he also admitted that he had made substantial financial personal gain. We are told this afternoon that he was sentenced to four years' imprisonment and she to 12 months' imprisonment for their parts in these offences.[13]There was a distinct additional feature of the police investigation into Spackman's activities which revealed that one of the watches seized by Spackman in the course of his investigation into the offences involving Khan and Bashir, was found still in his possession when he was arrested in October 2002. Another of the watches was found in the possession of an associate of his and Fletcher. It obviously goes without saying that the proceeds of an alleged crime should not have been removed from the formal possession of the police, and certainly not into the personal possession of a police officer involved in, let alone in charge of, the case or the woman with whom he was associating or any associate of hers. The significance of this evidence for present purposes is that this conduct itself provided another direct link between Spackman and Fletcher and the offences with which the appellants were charged.[14]The Reference and the material on which it is based has been properly examined by the Crown. We can hopefully do justice to the careful analysis made by Mr Stuart Trimmer, counsel for the Crown before us, by simply quoting the conclusion:
"The Crown take the view that the following factors taken together are decisive in concluding that the convictions must be regarded as unsafe. a. The very serious nature of the subsequent criminal conduct of Spackman. It is substantially more serious than that dealt with in previous authorities and displays an ability to conduct complicated deceptions within a police environment. b. That the 'informant' in this case [Fletcher] was party to the criminal conduct with Spackman. c. The time lapse between the convictions and the established misbehaviour is short in the time frame established by authorities and both events are connected. d. It is impossible to absolutely to rule out, by reference to other evidence, the suggestion that Spackman behaved dishonestly, in every aspect of the investigation leading to these convictions. e. It is impossible to assert, with the degree of confidence necessary, that the judge was not misled in any respect in the considerations of PII material."
[15]It is of course for the court to decide whether any conviction should be quashed. In our judgment it is quite unnecessary to attempt an examination of the consequences of the conviction of Spackman to any other cases in which he gave evidence which incriminated any other defendant. We expressly decline to do so. Equally, this is not an appropriate moment to attempt an analysis of the principles which this court will apply if and when a witness who has given important evidence for the prosecution at trial subsequently commits a criminal offence himself.[16]We can now deal with this appeal very briefly. We have here a case in which we now know that there was a great deal of evidence which lent support to what may have appeared at trial to have been fairly wild, slightly misplaced allegations of impropriety against a police officer on the basis he was seeking, even at the risk of misusing his position as a police officer, to assist a woman with whom he was infatuated to achieve her objectives. We believe that the evidence of the criminal activity of Spackman subsequent to the trial involving these appellants should realistically be seen in context as part and parcel of a continuing course of conduct by Spackman to impress Fletcher and to foster their continuing relationship. There is, in addition, evidence of his direct dishonesty in connection with property said to be the proceeds of dishonesty by the appellant. That does not of course make it impossible that both were acting dishonestly, but we are bound to treat what we have heard on this issue as an additional factor for concern.[17]We are grateful to the Commission for, if we may say so, its customary meticulous analysis of all the available information. We can however deal with this appeal very briefly. Notwithstanding evidence beyond Spackman himself, these convictions simply will not do. They are unsafe. Accordingly they will be quashed.

Cited in 2 later judgments