Shah & Anor, R. v [2008] EWCA Crim 1899

[2008] EWCA Crim 1899No: 200705951 C4, 200705952 C4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 24 July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GAGE
MR JUSTICE STADLEN
HIS HONOUR JUDGE ROGERS QC
(Sitting as a Judge of the Court of Appeal, Criminal Division)
Between
R E G I N ACrownv
Between
JAVED SHAHARMAN ALI SHAH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Van Duyvenbode appeared for First AppellantMiss G Ong appeared for Second AppellantMr D Radcliffe appeared for Crown
J U D G M E N T

LORD JUSTICE GAGE:

[1]On 12 October 2007 at Snaresbrook Crown Court, these two appellants were convicted of wounding with intent. On 10 December 2007, Javed Shah was sentenced to four years' detention in a Young Offender Institution, and an order made pursuant to section 240 of the Criminal Justice Act that 59 days spent on remand should count towards his sentence. Arman Shah was similarly sentenced to four years' imprisonment. A similar order under section 240 was made in respect of his sentence. Each of these appellants, who are brothers, appeal against their convictions by limited leave of the single judge. They also renew applications for leave against refusal of two grounds of appeal. The issue at trial was identity. Each of the appellants raise the defence of alibi.[2]The facts are follows as disclosed by the evidence. On 8 June 2006 at about 6 o'clock in the evening, the complainant, Waseem Perviez, was on his way home after playing a game of football at a friend's house at The Drive in Ilford. The prosecution alleged that as Waseem approached his home he was attacked by the two appellants and two other men. Following the attack, Waseem was taken to hospital where he received treatment. His injuries were: lacerations and bruising to the head area; bruising and swelling to the left eye; bruising and swelling to the left arm and shoulder; bruising to the back and flank; and an abrasion to the thumb. The lacerations were stitched and dressed, but he suffered ongoing problems with the vision to his left eye. The appellants were arrested some time after the assault.[3]The prosecution's case was that Javed Shah, the younger brother of Arman Shah, with two other men attacked Waseem outside his home. During the course of the attack, Arman Shah arrived in a car. He had a knife and joined in the assault on Waseem. The defence case at trial was that both the appellants were at Café Tarook and the Exchange Shopping Mall with a number of friends at the time of the incident. They were not responsible, they said, for the assault, and relied on the evidence of alibi witnesses. Arman Shah relied on the fact that he had reported to the police that he had been assaulted on 6 June 2006 by, among others, Waseem. It was suggested that this was the reason for Waseem blaming him for taking part in the attack on 8 June 2006.[4]In evidence, Waseem said that he had known Javed Shah for about ten years. They had been friends at one time, but their families had fallen out. He also knew Arman Shah. He said that as he approached his home on 8 June 2006 he saw Javed Shah and the two other men. Javed was wearing a grey hooded top with long sleeves and dark blue bottoms. He gave a description of the other two men. He believed one was of Afghan or Pakistani origin; the other of Asian origin. All three were armed with what appeared to be bricks cemented with rocks. When he was confronted outside his house by these three men, he said Javed Shah said:
"I've come to kill you"
. At this point Waseem was outside his front door and the three men were just beyond the path leading to the front door. He tried to leave, but they started to attack him. Javed struck him on the left side of his temple. The two other men started hitting him on his head and body. They were hitting him with bricks and swearing and egging each other on. He said that he managed to get away and ran in the direction of the main road, but he was struck with a brick on the back of the leg which caused him to fall and drop his mobile telephone. On the ground he was surrounding by all three men, and Javed told the others to "finish him off".[5]Javed had a hammer which was about 12 inches long, with a black handle, and hit him with the flat side of the hammer on the left side of his head. The others were kicking him on his body. He said that a blue car approached and stopped. Arman Shah got out holding a knife in his right hand. Waseem felt the knife go into his hand once and the back of his head twice. He felt kicking on his back and left shoulder, and that he thought this was being done by Arman because he was the only one standing behind him; the others were in front.[6]The attack ended when passers-by shouted at the men to stop, causing them to run off in the direction of the blue car. Members of the public came to his assistance. An ambulance was called and he was taken to hospital. He remembered at hospital his parents and cousin came to see him and police officers spoke to him. He said that he was able to name those who had assaulted him.[7]He was cross-examined by counsel for each of the appellants. It was suggested to him that he had told the police that he did not know who had assaulted him or why. It was further suggested to him that he gave the police descriptions of those who had assaulted him which were different from the descriptions of the appellants. He said that he did not remember telling the police that he did not know who had assaulted him. He said that he had not told the police that Javed Shah was involved when he first spoke to them because at that time he was unconscious. He accepted that his mother was present when the ambulance came, and he spoke to her when or just before he got into the ambulance. His mother was present when he was giving police descriptions of those who had assaulted him. He denied that she had only come into the room after police had spoken to him. He said that Arman Shah's name was mentioned by his mother at the hospital because he had mentioned it to her.[8]In cross-examination by counsel representing Arman Shah, he said that he was aware that on 6 June Arman Shah had made an allegation against him. He agreed that he was present at the Exchange in Ilford on 6 June, and he agreed that there had been an altercation between him and Arman Shah on that date. He said that he did not know that Arman Shah had reported the matter to the police. He was not aware that on 8 June Arman Shah had a black eye or had reported the matter. He could not remember if he had mentioned the knife to the police. He remembered that his mother had said in the presence of the police at the hospital that Arman Shah had been after him.[9]Two witnesses gave evidence of what they had seen of the attack. Neither was able to identify any of those who took part. The prosecution called two police officers who had attended the hospital and spoken to Waseem. The effect of their evidence was that Waseem was reluctant to talk to them. Waseem gave a description of those who had attacked him, but provided no names, nor did he say why he had been assaulted. Later he told one of the police officers, Police Constable Pluck, that Arman Shah was responsible and provided his address. This was after Waseem's mother had given the name of Arman Shah. Waseem agreed with the name given by his mother, and the officer did not record the name of Javed Shah in his notebook.[10]Police Constable Bhimra, the second police officer, said that Waseem told the officers that he did not know who had assaulted him. His evidence was that, whilst the officers were talking to Waseem, his mother arrived at the hospital and was present when the police were speaking to Waseem. His evidence was that Waseem's mother persuaded him to give the police the name of the person who had assaulted him. He said that Waseem's mother came into the room after he had been provided with the first descriptions of those who Waseem said had attacked him. She told the officers that Arman Shah was responsible. Her name is Nighat Perviez. She gave evidence. She said that she came up the road and saw the ambulance. She spoke to her son and asked him what had happened. All he said was "Arman Shah". She arrived at the hospital and told the police that she did not witness the assault, but that it was "down to Arman Shah".[11]Javed Shah was arrested and interviewed approximately six weeks after the incident. Arman Shah was not arrested and interviewed until a day in August 2006. At interview, each appellant said that the incident was nothing to do with him. Javed Shah said that he could not remember where he was after such a long time, but he thought it likely that he was at Café Tarook because he went there regularly. He said that he could have been with his brother and no one else. Arman Shah said that he had nothing to do with the incident and could have been elsewhere. Neither of the two appellants named witnesses subsequently called on their behalf as alibi witnesses. In defence statements, served pre-trial in or about February 2007, neither gave details of their alibi evidence. It was not until April that a handwritten alibi notice was given giving the details of those who were subsequently called as witnesses to support the alibis.[12]Each of the appellants gave evidence. Each said that he believed he was at Café Tarook at the time the assault was alleged to have occurred. Each remembered that it was around the time of the World Cup, and that they were with friends at Café Tarook. They said that they had been reminded by others where they were on that date. A witness, Mohammed Faisil Shah, a Special Constable with the British Transport Police, said in evidence that he had known Arman Shah for four years. On 8 June, at half past 4 in the afternoon, he said that he went to an internet cafe two doors away from Café Tarook. He said that he was there for about 45 minutes, leaving between 5.15 and 5.30. He was on his way to visit an aunt, but popped in to Café Tarook to see if there was anyone there who he knew. He said both appellants were present and he stayed to chat to Javed Shah about football and also had something to eat. He remembered that Arman Shah had a black eye which Arman attributed to an assault on an earlier occasion. The witness said that he had left just after 6 o'clock, and later saw Arman at about 7.00 to 7.10 in the evening, when he, Arman, was buying milk from an off licence. In cross-examination he said that he was able to be precise about the date and times because it was the day before the start of the football World Cup.[13]Kashif Khan gave evidence that he was studying mathematics in Manchester in May 2006. He said that he had known Arman Shah for eight years, and that at 3.30pm on 8 June he saw him at Café Tarook. He said that Arman was with Javed and two others. He teased Arman about his black eye, and all three went to the Exchange at about 4 o'clock. They stayed there for about an hour before returning to the café for a further hour. He left the café with a group including Arman between 6.30pm and 7pm. In cross-examination he told the jury that he had had exams at the end of May. He would not have remained after his exams, but could not say when the term ended. He could not say if the term ended in May.[14]There are a number of grounds of appeal, all are common to both appellants. In view of the conclusions which we have reached on the overall safety of the convictions, it is only necessary for us to deal with grounds 1, 3 and 4 of the four grounds on which leave has been given. It is unnecessary for us to refer to two further grounds on which leave to appeal was refused, but there is an application to renew the application for leave.[15]Ground 1 of the notice of appeal is the principal ground of appeal. In this ground, counsel for the appellants criticises the judge for failing to give the jury a Lucas or lies direction in respect of the alibi evidence. Counsel, Miss Ong, who has deployed the arguments on behalf of both appellants before us, relies on the standard Judicial Studies Board direction in relation to alibi evidence in which judges are advised to give a direction in two limbs where alibi is raised. The first limb of the direction explains to juries that it is not for the defendant to prove his alibi; it is for the prosecution to disprove it. There is no dispute in this case that the judge gave that direction. The second limb is to explain to the jury that a false alibi is not necessarily evidence of guilt. It may arise from a desire to bolster a genuine defence. This is the standard lies or Lucas direction given where the prosecution rely on lies in support of its case. There is equally no dispute that, in this case, the judge did not give such a direction. During the course or at the end of his summing-up he was reminded by Miss Ong for Arman Shah that he had not given the second limb of the standard JSB direction. He was invited to do so, but declined to accede to that application, saying that, in the circumstances of the case, it was unnecessary to do so. It would seem from the transcript that, in his opinion, such a direction might have done more harm to the defence than good.[16]It is submitted on behalf of both these appellants that in this case such a direction should have been given because the prosecution allege that the fact that no details of alibi evidence were given by either appellant until after interview meant they were lying in interview and that their alibi evidence was false. Miss Ong submits that there are a number of reasons why the judge's failure to give such a direction was wrong and an error. Firstly, she submits that both appellants were not interviewed until some weeks after the commission of the offence. It is submitted that, when interviewed, they might reasonably not have been able to remember where they were on 8 June, hence their inability to say with whom they were on that date. Accordingly, they are, it is submitted, not necessarily lying at interview nor in their defence statements when they were unable to give the details of their subsequent alibi evidence. Their evidence was that, after interview, they had been reminded by friends where they had been at the time the assault occurred.[17]Secondly, the defence case was that Waseem had implicated them by reason of a longstanding feud between the two families, which had manifested itself in an attack on Arman Shah on 6 June. It is submitted that this was a classic case where a jury might infer guilt from a false alibi for what is known as "the forbidden reasoning". Miss Ong, who, as we have said, developed this submission on behalf of both appellants, submits that because each appellant had, when interviewed, said that he was unable to remember where he was on 8 July, this means that it is a classic case where each might have thought it necessary to bolster their defence.[18]Mr Radcliffe, who appears on behalf of the prosecution, submits that this is a case where a Lucas direction was not required. The issue for the jury was the simple one of whether the victim, Waseem, was telling the truth, or whether the appellants may have been telling the truth. In the circumstances, he submits, the authorities show that no Lucas direction was required.[19]As a general rule, the full alibi direction should be given, but as counsel for the prosecution, Mr Radcliffe, rightly points out, it is not an invariable rule: see for example R v Harron [1996] 2 Crim App R 457 and R v Nyanteh [2005] EWCA Crim 686. However, in R v Burke and Pegg [1996] 1 Crim App R 163, the court decided before Harron this court gave as one of the four situations where a lies direction was appropriate was when alibi is raised. Later, this court, in R v Middleton (unreported), a decision in which Judge LJ gave the judgment of the court dated 23 March 2000, made observations to which we must refer. The transcript of the judgment has been helpfully supplied to us by counsel. At paragraph 18 the following appears:
"The steady and almost unstoppable stream of reported decisions and appeals to this Court on the subject of lies told by a defendant, and the directions which should be given by the trial judge when he does so, has tended to obscure the essential simplicity of the principle. People do not always tell the truth. Laudable as it may be to do so, whatever the circumstances, they do not, or cannot, always bring themselves to face up to reality. Innocent people sometimes tell lies even when by doing so they create or reinforce the suspicion of guilt. In short, therefore, while lying is often resorted to by the guilty to hide and conceal the truth, the innocent can sometimes misguidedly react to a problem, or postpone facing up to it or attempt to deflect ill-founded suspicion, or fortify their defence by telling lies. For example, a married man who has had consensual sexual intercourse with a woman and is then faced with an allegation of raping her will sometimes untruthfully deny the act of sexual intercourse at all, in order selfishly to avoid embarrassment to him of his wife's discovery of his infidelity or, less selfishly perhaps, the consequent anguish that the knowledge may cause to her and to their children."
[20]Later in the judgment in the same case, the court continued at paragraph 22:
"Where, however, there is no risk that the jury may follow the prohibited line of reasoning, then a Lucas direction is unnecessary. On the whole, approaching the matter generally, it is inherently unlikely that such a direction will be appropriate in relation to lies which the jury conclude that the defendant must have told them in his evidence. In this situation, the consequence of the jury rejecting the defendant's evidence is usually covered by the general directions of law on the burden and standard of proof, and if a Lucas direction about lies told by the defendant in his evidence to the jury is given, it will often be circular and therefore confusing in its effect."
It may be that the judge in this case had that in mind when he was invited to give the direction to the jury.[21]In this case, it is true that the issue between the prosecution witnesses and the defence witnesses was clear-cut. There was little room for mistake. The victim knew both appellants. Arman Shah's case was that the victim's allegation resulted from a family feud in a previous incident. It follows that the issue for the jury was which side was telling the truth. Nevertheless, the prosecution made great play of the fact that the appellants had not given details of their alibi evidence, nor mentioned their witnesses in defence statements. The judge dealt with this in his summing-up. At page 28, letter D, he said:
"He [Javed Shah] was cross-examined at quite some length and I mean no disservice to counsel if I do not repeat it. Suffice it to say, the heart of the cross-examination went towards the alibi and saying, effectively, 'In interview there was no mention of alibi, no mention of other people. You said that your brother knew wherever you were'. The Crown said to him, 'It doesn't end there. Look at the defence case statement'."

The judge went on to describe to the jury what a defence statement was, and continued as follows:

"Miss Maxwell-Burnside put to the defendant, 'Your defence case statement made no mention of alibi. It specifically said 'no witnesses', and that is in April. But come 25 July suddenly you are producing another document saying, 'Oh, by the way my defence is alibi and here are the following people who can vouch for my alibi''. So she is testing him in relation to that and his general explanation is either to start with, 'I didn't think it was important', or, 'I wasn't asked specifically about it', or, 'I couldn't remember, but eventually when I did remember I gave the details to my solicitor and that is why back in July we gave that matter'."
[23]In our judgment, this cross-examination goes further than just suggesting that the alibi is false; it challenged the appellants' credibility because there had been no mention of the details of the alibi until a late stage. In the circumstances, in our judgment, a Lucas direction was not only desirable; it ought to have been given. The difference in this case to those cases where the issue is purely which side is telling the truth is, as Miss Ong points out, in this case when first asked about the incident some weeks after it had happened, the appellants may genuinely have been unable to recollect where they were on 8 June. They might also have thought that their bare assertion that they could not remember precisely where they were or with whom they were might require the reinforcement by calling false evidence. This is just the sort of case where a Lucas direction should have been given.[24]We think there is force in this submission, and the judge ought to have coupled the Lucas direction with the first limb of the JSB specimen direction on alibi evidence.[25]We turn to ground 3. In this ground, Miss Ong submits on behalf of her client, Arman Shah, and adopted by counsel for Javed Shah, that the judge failed to summarise important facts of the defence. This ground concentrates on what Miss Ong describes as the chronology of Waseem's complaint. The matters relied on are best summarised in the skeleton argument of Mr Van Duyvenbode on behalf of Javed Shah. It is submitted that the judge failed to mention the following passages in the cross-examination of Waseem. There is no mention, for instance, of Waseem's failure to name the appellants when first spoken to by police officers at the hospital. There is no mention of the description he gave of his assailants, which was quite different from any fair description of the two appellants. The judge did not mention that Waseem did not say that a knife had been used in the attack when first spoken to by the police officers. Nor was there any reference to the defence suggestion that Waseem was influenced by his mother when describing what happened to him. The judge did not remind the jury that it was only later, on the evening of 8 June 2006, that Mrs Perviez gave the name of Javed Shah to the police.[26]It is submitted that, whereas here, the defence was that Waseem had deliberately and falsely blamed the appellants for the attack on him, these were important and significant factors supporting the defence case. Mr Radcliffe, for the prosecution, rightly submits that it is not the duty of the judge when summarising the evidence to refer to every last detail of the evidence which may support the defence. But in this instance, in our judgment, it can properly be said of these omissions that the result is that the judge's summary does not fairly reflect the force of the cross-examination by defence counsel. This is in marked contrast to the judge's full summary of prosecuting counsel's cross-examination of the appellants on why there was no reference to alibi witnesses by them at interview or in their defence statements.[27]We turn finally to ground 4. This ground overlaps with ground 3. The appellants complain that the judge misdirected the jury on an important piece of evidence. At page 22 of the summing-up, letters B to C, the following passage appears:
"What happened next in the account, and let's go back to Waseem, is an ambulance is called and he was taken to King George's Hospital. Before that his mother had come out and his mother had asked him what had happened and he had told his mother that it was Arman Shah and his brother in relation to that who had attacked him. That may be relevant later on."
[28]We take this passage to be a reference to the evidence given by Waseem himself. It seems clear that not only did Waseem not give this evidence, but his mother did not say when she came to give evidence that he had told her that Javed was involved when she saw him being put into the ambulance. Again, it is submitted that in the context of the defence allegation that Waseem had deliberately falsely implicated the appellants in the assault on him, it was, to say the least, an unfortunate error which the judge, when it was pointed out to him, refused to correct.[29]In our view, grounds 3 and 4, whether on their own or cumulatively, might not have been sufficient to render the verdicts unsafe. However, when taken together with the judge's failure to give a Lucas direction in respect of the alibi evidence, we cannot find ourselves able to be sure that the verdicts are safe.[30]In the circumstances, as we announced earlier today, we will allow the appeals of each of the appellants and quash the convictions.[31]Are there any further matters to be dealt with?[32]MR RADCLIFFE: My Lord, there is the question about a retrial.

LORD JUSTICE GAGE: Yes.

[34]MR RADCLIFFE: I am instructed to ask for a retrial, and the usual directions will follow if the court decides that that is the appropriate course.

LORD JUSTICE GAGE: Yes. Miss Ong?

[36]MISS ONG: The only submissions I would make would be succinct in relation to that, my Lords. There has already been a notice to the complainant and his family about the appeal and the grounds of such an appeal, and the danger is, of course, contamination would already have brought itself in the complainant's mind. That is really the main submission that I would make on the appellants' behalf, and particularly in relation to my particular lay client, Arman Shah. It is not without significance because, as the complainant and his family are now aware of the issues relating to the appeal, it may well be, and bearing in mind the long history of conflict between these families, that any retrial would result in his tailoring his evidence to meet with what were the matters of complaint.

LORD JUSTICE GAGE: No doubt that would give you further ammunition, if there is a retrial, to cross-examine him.

[38]MISS ONG: It may well do. But that is really my main point on behalf of the appellants. They have now been nine months in custody.

LORD JUSTICE GAGE: Yes, I see. Mr Van Duyvenbode?

[40]MR VAN DUYVENBODE: My Lord, nothing further to add. Miss Ong has made the points that perhaps exist on behalf of both appellants.

LORD JUSTICE GAGE: We will just retire for a moment. (Short adjournment)

LORD JUSTICE GAGE: We think that there must be a retrial in this case, and we so direct. So the order of the court will be: we allow the appeals; we quash the convictions; we specify that the offences on the indictment, that is count 1 in each case are crossed, and that the appellants must be retried on that count. We direct that a fresh indictment be preferred. We direct that the appellants be rearraigned on the fresh indictment within two months. We direct that the venue for the trial should be such Crown Court as is indicated or directed by the senior presiding judge of the south eastern circuit. We certainly would grant representation orders for the retrial.

[43]Are there any further applications?[44]MISS ONG: There are applications for bail on behalf of both appellants. They had, prior to their convictions, been enjoying bail. They kept their conditions. In our submission, they should be readmitted to bail.

LORD JUSTICE GAGE: Mr Duyvenbode?

[46]MR VAN DUYVENBODE: My Lord, similarly Javed Shah was a man of previously good character before he came to trial. There was no difficulties on bail, and I would ask for bail to go forward.

LORD JUSTICE GAGE: We shall make the usual order that we make in cases such as this, and specifically concerning the facts of this matter. You must make your applications to the Crown Court Judge, which will mean that we would invite the senior presiding judge of the south eastern circuit to direct as soon as possible to which Crown Court this matter should be remitted for retrial.

[48]Very well, thank you all very much for your submissions. (Court registrar raises issue about reporting restrictions)[49]Do any of you have any views?[50]MISS ONG: We think it unlikely that a member of the jury may pick up on a law report, if it was reported, between now and the retrial.

LORD JUSTICE GAGE: Again, in an excess of caution, without specifically consulting my colleagues, I would normally grant such an application and again leave it to the Crown Court Judge to decide whether it is necessary. It depends to some extent where the matter is to be tried. We will make the usual order, but there can be a further application to the Crown Court Judge. Is there any material conflict between the two defendants?

[52]MISS ONG: There are two matters that spring to mind, my Lord. First of all, one does have some minor convictions and the other does not.

LORD JUSTICE GAGE: One does have what?

[54]MISS ONG: Mr Arman Shah does have a couple of minor convictions; Mr Javed Shah does not, and the other, I suppose, potential conflict is that although the complainant knows both of them very well, his essential conflict was with Arman Shah and his immediate family and not specifically with Javed Shah prior to 8 June. So those are the only two distinguishing features that I can point to.

LORD JUSTICE GAGE: Right, separate representation then. If, on the other hand, you have to come back to this court after it, and it is the same, sort of, joint approach, I would doubt that you would get separate representation for that.

[56]MISS ONG: Thank you.