Popat, R v [2008] EWCA Crim 1921

Case No 2008/1339/C4[2008] EWCA Crim 1921
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 28 July 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MRS JUSTICE DOBBS DBE
HIS HONOUR JUDGE PERT QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
HARISH POPAT
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 A Jumabhoy appeared for AppellantMr A Krikler appeared for Crown
J U D G M E N T

LORD JUSTICE HUGHES:

[1]Mr Harish Popat appeals against a summary finding by a judge in the Crown Court that he was in contempt of court by failing to appear as a witness. It is conceded, and always has been, that he failed to appear. It is expressly conceded that he knew that he had been directed by the Court to appear. The issue raised relates to the procedure adopted and whether on the judge's findings there were technical obstacles to his having committed the offence. In addition, Mr Jumabhoy raises on his behalf a submission directed to one of the judge's findings of fact.[2]The position was that Mr Popat was a prosecution witness in summary proceedings in the Magistrates Court brought against a Mr Knightly -- in short he was the complainant. Mr Knightly was convicted in the Magistrates Court but exercised his right to appeal to the Crown Court, where of course the appeal is conducted by way of re-hearing of the evidence. Accordingly, Mr Popat was an essential Crown witness in the appeal. It is common ground that because Mr Popat had failed to appear twice and despite the issue of a warrant for his arrest, after his second failure Knightley's appeal had to be allowed because the Crown was unable to prove its case in the absence of Mr Popat.[3]We have in this court the judge's findings of fact and two documents. Chronologically the first document is the first event. On 18th October a witness summons was issued to Mr Popat directing him to appear before the Crown Court for the hearing of the appeal. The appeal was then listed for 23rd October 2007 or, we suppose, perhaps in a warned list beginning on that date. At all events the terms of the summons, which are in common form, are as follows:
"You must attend before the Crown Court at Isleworth Crown Court [and the address is given] on 23rd October 2007 at 10 am and on subsequent days until the court releases you."
The court did reach the first hearing of the appeal on 23rd October. Mr Popat was not there and, as the judge in the contempt proceedings in due course found, the different judge at the Crown Court, Judge McGregor Johnson who was sitting on 23rd October, issued a warrant for Mr Popat's arrest. That finding is plainly accurate. We have a copy of the warrant. The summons had been disobeyed and it is known that Judge McGregor-Johnson gave a supplemental direction to the effect that the warrant that he was then issuing was not to be executed by the arrest of Mr Popat, except at the Crown Court. That kind of direction is one of a variety of similar directions which is sometimes given. It is designed in the interests of the missing witness to give him the opportunity to attend voluntarily under his own steam rather than have to be arrested 24 hours beforehand, or perhaps longer beforehand, and kept in custody until he can give the evidence which he is able to give. We will however return at the end of this judgment to the consequences of the direction having been given in the particular form that it was in this case.[4]On 23rd October, having issued that warrant, Judge McGregor-Johnson adjourned the hearing of the appeal until 31st January 2008. It follows that there were now in force two court documents. The first the summons to attend on 23rd October and subsequently until released and the second a warrant for the arrest of the witness for having disobeyed the summons.[5]On the judge's findings, the day before the adjourned hearing on 31st January, that is to say on 30th January, a police officer visited Mr Popat. The judge found that she told him that he was required at the Crown Court the very next day. There was in fact no challenge to that part of her evidence. According to the officer's evidence she showed the defendant the summons; that is how she described the piece of paper that she showed him. The judge made a finding of fact that she was in error and she was in fact describing the warrant. Whether the judge was right about that we do not know, but it is a finding of fact upon which he proceeded and we do not go behind it. The judge was plainly right to say that lay people, including police officers, may sometimes use the words "summons" and "warrant" (although they are different animals) interchangeably. As a matter of fact it seems to us at least possible that what the officer showed the witness was the summons but, as we have said, we do not go behind the finding of the judge that it was in fact the warrant.[6]Whatever the document that the police officer said she had shown to Mr Popat, Mr Popat gave evidence that he had been shown no document at all. Accordingly there was to that extent a direct conflict of evidence between the police officer on the one hand and Mr Popat on the other.[7]For the appellant Mr Popat, Mr Jumabhoy's first contention is that the judge's finding that the police officer had indeed shown a document to the witness was a perverse finding. He asserts that:
"There was no sustainable basis to prefer one account over the other. Had the judge given equal weight to [the evidence of both] he would have been unable to find the case proved to the criminal standard in respect of the burden of proof."
That first contention is wholly unarguable. The fact that witness A says "white" and witness B says "black" is not and never has been a basis which requires the judge to say that he is unable to choose between them. He may be unable to choose between them, but his job is to make a finding according to the relevant standard of proof if he is able to do so. This judge was. It is not in the least uncommon. To accede to the unarguable submission made would effectively be to introduce into English law a universal requirement for corroboration which does not exist.[8]The second ground advanced on behalf of the appellant is that there was no evidence that there existed any summons for attendance on 31st January or that such had ever been served. Accordingly there was, it is submitted, no basis on which the defendant could be in contempt of court by disobeying the same.[9]The law is to be found in sections 2 and 3 of the Criminal Procedure (Attendance of Witnesses) Act 1965. Section 2 enables the Crown Court to issue a summons requiring a witness to attend. It can be done providing two conditions are satisfied: first, that the witness is likely to be able to give material evidence or in other circumstances which do not apply here to produce a material document; and second, that the court is satisfied that the person will not voluntarily attend or, as the case may be, produce. It is on that basis that the summons, whose terms we have already recited, was issued on 18th October.[10]Section 3 of the 1965 Act then provides that:
"Any person who without just excuse disobeys a requirement made by any court under section 2A above shall be guilty of contempt of that court and may be punished summarily by that court as if his contempt had been committed in the face of the court."
That is the jurisdiction which the judge exercised in the present case and it is from his finding in the exercise of that jurisdiction that this appeal is brought.[11]The warrant is of course a command to the police officers to arrest the witness and bring him before the court. It is a warrant issued in aid of the power which exists to punish as contempt of court disobedience to a summons. Of course the collateral effect of a warrant, it is hoped, will be the attendance of the witness so that the evidence can be given.[12]Accordingly, we agree with Mr Jumabhoy that the offence of contempt is disobedience to a summons rather than disobedience to a warrant. The warrant is directed to the police officers. It is the summons which is directed to the witness. What we do not agree about is the proposition that there had to be a separate summons relating to 31st January. The summons which had been issued required Mr Popat to be at court certainly on 23rd October, but thereafter until released. He had not attended and he had not been released. The summons remained in force. It quite often happens that cases are listed for a particular date but not reached and not infrequently they are listed in a warned list to start not before a specific date. A summons of this kind is not infrequently issued for the first day in the period, but it remains in force until a witness has obeyed it by giving the evidence he is able to give.[13]On the judge's findings that summons issued on 18th October and still in force is not what was shown to Mr Popat by the police officer on 30th January. Although we have some reservations about that finding we do not, as we say, purport to go behind it. However, what undoubtedly the police officer did on 30th January was to make crystal clear to Mr Popat that there existed an order of the court requiring him to attend tomorrow, 31st January. That, on authority, is sufficient. Formal service of the document is not required providing its existence is distinctly brought to the attention of the witness. For that proposition see principally R v Abbott [2004] EWCA Crim. 91 referred to also in R v Yan Tong Wang [2005] EWCA Crim. 476. In passing we should observe that the latter case is of no assistance to Mr Popat because there no summons had been issued until after the default complained of, and if there was no summons there could not be a contempt of court. Mr Jumabhoy submits that the decision in Abbott is superseded by the Criminal Procedure Rules which make provision for the manner of service of a witness summons - that is to be found in rule 4.7(2). We have no doubt that the Criminal Procedures Rules provides for how a summons is to be served. What it does not do is to alter the existing law as set out in Abbott that in addition to service, bringing the document to the attention of the witness is sufficient to give rise to the obligation to attend so that failure to attend may be contempt of court (as in this case it was). In the present case there was a summons, it was still in force, it was brought to the attention of the witness and he quite deliberately failed to come. That is contempt of court. This appeal is dismissed.[14]We should add that it is the common experience of judges sitting in the Crown Court that where a witness is reluctant and has failed to appear in response to a summons, very often the mere issue of a warrant for arrest is enough to achieve attendance. Knowing that, it is very common for Crown Court judges to give a direction at the time of issuing a warrant for arrest which is designed in the interests of the witness to avoid the witness having to be locked up overnight or perhaps for longer. We do not wish to discourage that humane exercise of the Crown Court's jurisdiction, but we do point out that, as this case demonstrates, a direction not to execute a warrant except at the Crown Court means that if the witness chooses not to come the warrant can never be executed. Accordingly, a different form of humane direction is required. We have no doubt that there are several possibilities. One which is sometimes adopted is to direct that the police officer need not execute the warrant if satisfied that the witness is going to attend voluntarily, or need not execute it if the witness agrees to come with the officer. Another may be in some circumstances to issue a warrant backed for bail. Whilst we do not criticise the judge for not anticipating the difficulty that arose in the present case, we point out that the facts of the case demonstrate that the particular form of direction given in this case is inappropriate as things turn out.