Oshungbure & Anor, R v [2005] EWCA Crim 709

Case No 200306215/D3-200307070/D3[2005] EWCA Crim 709
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 10th March 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
MR JUSTICE DAVID CLARKE
MR JUSTICE CHRISTOPHER CLARKE
Between
R E G I N ACrown-v-
Between
KAZEEM LADIE OSHUNGBUREAYODELE OLUSEYE ODEWALE
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 D PENNY appeared for APPELLANT OSHUNGBUREMR J DUNN-SHAW appeared for APPELLANT ODEWALEMR C KERR & MR S ROSE appeared for CROWN
J U D G M E N T
[1]THE VICE PRESIDENT: This is a very unusual case. It has followed an unusual course.[2]On 24th March 2003 these appellants were convicted of conspiracy to defraud financial institutions by means of identity theft. Their trial took place at Chelmsford Crown Court before His Honour Judge Ball QC. They were sentenced by that judge, in the case of Odewale, to 8 years' imprisonment, subsequently reduced by this Court, differently constituted, to six-and-a-half years' imprisonment, and in the case of Oshungbure to 5 years, subsequently reduced on appeal to 4 years.[3]On 20th October 2004 the Full Court, differently constituted, dismissed renewed applications for leave to appeal against conviction, following refusal by the Single Judge. The one matter outstanding, and it has come before this Court today, relates to the confiscation proceedings conducted by the trial judge in relation to which leave to appeal was given by the Full Court on 20th October 2004.[4]The confiscation proceedings took place, in part, on 1st August 2003 and, in part, on 15th September 2003. Between those dates notice was given, on behalf of Odewale, that an application would be made for the judge to recuse himself from dealing or dealing further with the confiscation proceedings. It is unfortunate that, in the course of that application, the judge's attention was not drawn to authority, in particular Locabail v Bayfield Properties [2000] QB 451. If it had been, it is possible that the judge's decision not to recuse himself might have been different.[5]The basis for the application that the judge should recuse himself is also the basis of the principal ground of appeal advanced before this Court today, namely, that the judge's remarks in passing sentence on these appellants gave rise to a perception of bias on his part against the defendants, in particular Odewale.[6]What the judge said, in passing sentence, was that Odewale was not an honest or attractive witness; that he would not recognise the truth if it stood up and bit him; that he was a deeply, deeply dishonest man and that he was dishonest through and through. An allegation of the appearance of bias, evidenced by further remarks which the judge made in relation to Nigerians (both of the appellants being Nigerian) sustained the appeal against sentence by both these appellants. The question which now arises is whether the judge's observations, in particular in relation to the dishonesty of Odewale, were such as to give rise to a perception of bias on his part.[7]Mr Dunn-Shaw, who appears for Odewale and has made a powerful and succinct submission on his behalf, does not seek to suggest that there was any actual bias on the part of the judge. He recognises, rightly, that any such suggestion would necessarily fly in the face of the various findings favourable to the defence, including the acceptances of evidence of a man called Jaconelli, which the judge made in the confiscation proceedings. It is unnecessary, for the purpose of this appeal, to rehearse the various findings which the judge made, Odewale not having given evidence before him.[8]The way in which Mr Dunn-Shaw puts the matter is that the judge was statutorily empowered to make assumptions in the confiscation proceedings, which could only be displaced by evidence. The judge having made it plain on sentencing that he did not believe that Odewale was capable of telling the truth, the perception which would arise from that, both in the mind of Odewale and of the independent observer, would not be curable by the judge saying, as he did later in the course of the confiscation proceedings, that Odewale need not feel deterred from giving evidence. Mr Dunn-Shaw tells us, and we accept, that the judge's observations on passing sentence were a factor affecting the defendant's decision not to give evidence, in particular, in relation to a Ferrari motorcar, as to which further enquiries were made between 1st August and 15th September.[9]Mr Penny, on behalf of Oshungbure, adopted, so far as it is open to him, the submissions made by Mr Dunn-Shaw on behalf of Odewale. Mr Penny accepts that no application was made on Oshungbure's part that the judge should recuse himself. But, in that regard, he drew attention to a number of passages in the speeches of Lord Bingham and Lord Hope in Millar v Dickson [2002] 1 WLR 1615, in particular, paragraphs 16 and 31, in the speech of Lord Bingham, and paragraphs 52 to 53 and 62 to 65 in the speech of Lord Hope. It is convenient, at this point, to refer to certain passages in the speech of Lord Hope, who at paragraph 63, in rejecting the main argument on the part of the Crown in that case said this:
"In my opinion this argument overlooks the fundamental importance of the Convention right to an independent and impartial tribunal... As Lord Clarke said in Rimmer v HM Advocate (unreported) 23 May 2001, the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seized of the case. It is a question which, at least in a case of perceived impartiality, stands apart from any question that may be raised about the character, quality or effect of any decisions which he takes or acts which he performs in the proceedings."
At paragraph 64D, Lord Hope said:
"...if circumstances exist which give rise to a suspicion about the judge's impartiality, those circumstances are themselves sufficient to disqualify although in fact no bias exists."
And at paragraph 65, Lord Hope said:
"The principle of common law on which these cases depend is the need to preserve public confidence in the administration of justice... It is no answer for the judge to say that he is in fact impartial, that he abided by his judicial oath and there was a fair trial. The administration of justice must be preserved from any suspicion that a judge lacks independence or that he is not impartial."
Mr Penny also submitted that authority is to be found in Millar v Dickson for the proposition that for any defendant to waive his Article 6 rights to a fair and impartial tribunal, the waiver must be voluntary, informed and unequivocal.[10]In that regard, Mr Penny relies upon paragraphs 52 and 53 of the speech of Lord Hope which it is not necessary to read.[11]In Locabail, at page 480D, Lord Bingham said this:
"...a real danger of bias might well be thought to arise if in a case where the credibility of any individual were an issue to be decided by the judge he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such person's evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind... The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal."
We bear in mind Mr Kerr's submission, on behalf of the Crown, that Locabail was a civil case. The principles which it enunciates, however, as it seems to us, apply in appropriate circumstances in criminal proceedings also. Mr Kerr also, rightly, accepted that it is a question of degree whether a judge's remarks at one stage of a case are properly to be interpreted as giving rise to a perception of bias as and when the judge has himself determine another part of the case. Mr Kerr also accepted, rightly, that once a judge has made remarks giving rise to a perception of bias, it is extremely difficult to put the genie back into the bottle by way of subsequent corrective statement.[12]It is common ground before us, and rightly so, that a judge in passing sentence not only can but should express his views in relation to evidence given by a defendant, which he and the jury have heard. It may be highly pertinent in explaining to those involved in the case, and to the wider public, why a particular sentence is passed and it may be of highly material assistance to the Court of Appeal if and when that sentence comes to be reviewed, to know the judge's view of the evidence which has, at that stage, been heard. As it seems to us, there can be no objection to a judge expressing his views in relation to what has already been heard from the defendant in trenchant terms. But, as it seems to us, what a judge who knows that he is likely to have to conduct fact-finding exercises himself, in relation to the same defendant, must not do is express himself, at the sentencing stage or at any earlier stage in a way which may sensibly be perceived to show that he is biased against the defendant and unlikely to believe anything that the defendant may tell him in the future. It is clearly a matter not only of practical convenience, but of good sense that the same judge who has conducted a trial should generally in due course, conduct the confiscation proceedings which arise from it. Indeed until the position was changed by legislation, confiscation proceedings were conducted by a trial judge before he passed sentence.[13]As confiscation proceedings now follow sentence, it is, as it seems to us, incumbent upon trial judge's passing sentence to bear in mind, in the observations which they then make, that they will themselves be conducting proceedings which may involve them adjudicating upon further evidence from the defendant.[14]In the present case, as it seems to us, the observations made by the learned judge when passing sentence, in the terms which we earlier rehearsed, were such as would give rise to a perception of bias in the mind of a fair-minded and informed observer (see per Lord Phillips MR in In Re Medicaments [2001] 1 WLR 700 para 85).[15]In those circumstances Odewale's appeal against the confiscation order made against him is allowed, and the order made is quashed: whatever niceties are capable of being drawn between Odewale's position and that of Oshungbure, it seems to us that it would, in all the circumstances, be wholly inappropriate to maintain the order made against Oshungbure in the confiscation proceedings. Accordingly his appeal is allowed and the order made against him quashed.[16]This Court does not have power to remit the matter to the Crown Court for reconsideration by a Crown Court judge. It does have all the powers of the Crown Court, and so it would be open to this Court to embark upon a re-investigation of the confiscation aspect of this case. But, in our judgment, justice does not require that that course should be followed.

Cited in 3 later judgments