Khan & Ors v R. [2011] EWCA Crim 2240

[2011] EWCA Crim 2240

Case No 201004678, 201100684, 201004748, 201004779

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

Venue HHJ BARTFIELD on 29 July 2010 in Crown Court at Leeds, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/10/2011

Before

LORD JUSTICE PITCHFORD

MR JUSTICE WILKIE

MR JUSTICE HOLROYDE

Between

JAMSHED KHAN1 st Appellant

REIS KHAN2 nd Appellant

MOHAMMED SULTAN3 rd Appellant

MOHAMMED RAFIQ4 th Appellant

REGINARespondent

Mr A Lakha QC and Mr A Brewer (instructed by Khan - Solicitors) for 1 st Appellant

Miss N Shant QC (instructed by Shaikh Ayub - Solicitors) for 2 nd Appellant

Mr R Barraclough QC (instructed by Shahid & Yasmin-Solicitors) for 3 rd Appellant

Mr M Hussain QC and Mr A Quzi (instructed by Stephen Lickrish-Solicitors) for 4 th Appellant

Mr G Cole QC and Mr M Ainsworth (instructed by CPS - York Special Crime Division) for Respondent

Hearing Hearing date: 8th September 2011

Judgment

[1]Jamshed Khan renews his application for leave to appeal against conviction and seeks leave to argue an additional ground. We grant leave upon the additional ground of appeal and henceforward shall refer to Jamshed Khan as an appellant. Reis Khan, Mohammed Rafiq and Mohammed Sultan appeal against their convictions with the leave of the single judge. We shall allow each of the appeals for reasons appearing below.

[2]On 28 June 2010 the appellants were tried upon a single indictment at Leeds Crown Court by HHJ Bartfield and a jury which, on 29 July 2010, convicted each of the appellants of an offence of conspiracy with Alyas Khan and others to defraud, the particulars being that they conspired between 1 October 2003 and 6 May 2005 “to defraud the electoral registration officer of Bradford City Council by dishonestly causing and permitting to be submitted to the officer falsely completed applications to vote by post”.

[3]The prosecution case was that the objective of the conspirators was to secure the election of their preferred candidate, Haroon Rashid, as Member of Parliament for the Bradford West constituency in the general election held in May 2005. Postal vote applications accepted by the electoral registration office would result in despatch of ballot papers to the given address. The conspirators intended to harvest the ballot papers on delivery and to submit forged postal votes. That there was such a conspiracy was established by the plea of guilty to the indictment entered by Alyas Khan on 26 June 2008. In order to register a postal vote anyone entered on the electoral register was required to submit an application (“PVA”) for postal ballot papers. The application form required the name and address of the applicant and the applicant’s signature. The prosecution case was that the appellants made applications for postal ballot papers in respect of individuals who did not live at the address given, or who had no knowledge of the application and had not given consent. Haroon Rashid was the Conservative candidate for the constituency and the appellants were all members or supporters of the local party. The seat was regarded as marginal. During the course of the election the possibility of fraud was publicised. It was the prosecution case that the conspirators did not, as a result, utilise all the ballot papers at their disposal. In fact Haroon Rashid was defeated by some 3,026 votes.

[4]The police recovered some 1,600 postal vote applications (“PVAs”) from the electoral offices in Bradford. As we understand it, some 932 concerned the 2005 election. They were all subjected to forensic examination for fingerprints and handwriting analysis. They were also examined with electro-static detection apparatus (“ESDA”) by which means it was demonstrated that in some instances an application had been completed and/or signed as one of a batch, the imprint of one being indented on the next.

[5]We shall turn to the nature of the case against each of the appellants. Jamshed Khan

[6]Mr Khan had been a Conservative councillor in the Bradford city ward since May 2004 and was active in the Parliamentary election campaign in support of Mr Rashid. Mr Khan’s son was the legal owner of 17 Trinity Road, a property developed into about 9 small flats. Jamshed Khan acted as the effective landlord. He had a key to the premises. The post for all tenants was delivered to an unlocked box behind the front door of the property. The electoral office received 12 applications for postal vote papers from persons who, it was represented, were living at 17 Trinity Road. They were all dated either 11 or 12 April 2005. It was common ground that they were all false in that either the purported applicant was unaware of the application or the individual, if an existing person, did not live at that address. It was not alleged that Jamshed Khan had written the applications. It was the prosecution case that they were written by Mohammed Rafiq with whom Jamshed Khan was associated. The prosecution invited the inference that Jamshed Khan provided the necessary information for the completion of the fraudulent PVAs. The prosecution contended that the association between Jamshed Khan and Mohammed Rafiq was further established by the discovery of Jamshed Khan’s fingerprints upon a false PVA dated 13 April 2005, also written by Mohammed Rafiq, in respect of a person it was claimed resided at a different address, 27 Mannville Terrace, an address with which Jamshed Khan was not associated.

[7]Jamshed Khan denied having anything to do with false applications for postal votes. Someone, he said, in possession of the relevant information must have used his address for the unlawful purpose. It was not surprising, Mr Khan contended, that his fingerprints should be found on a PVA because they were handled in the constituency office where he assisted. Reis Khan

[8]Reis Khan was also a local councillor. On 19 April 2005 Mr Khan handed a batch of 93 PVAs to the electoral registration office of which, the prosecution contended, 91 were written by him. The prosecution alleged that 55 of those forms were fraudulent. Reis Khan’s fingerprints were found on 31 of them. Mr Khan’s defence was that whenever he completed a form he did so with the express or implied permission of the applicant or the head of the applicant’s family. He then delivered the completed PVA to a party worker for the purpose of obtaining the applicant’s genuine signature on the document. The judge directed the jury that if this was true or may be true Mr Reis Khan must be acquitted. At the close of the evidence it appeared that some 30 PVAs fell into the category of those for which Reis Khan assumed he had permission. There was no expert evidence adduced in an attempt to demonstrate that the signatures themselves were fraudulent. Mohammed Rafiq

[9]Mr Rafiq lived at 51 Cecil Avenue, Bradford. He was alleged to be author of the fraudulent PVAs which the prosecution’s handwriting expert allocated to Group C. Mr Rafiq’s finger marks were found on a large number of PVAs. His defence included the assertion that he could not read or write. Mr Rafiq’s defence was that he had been asked by Haroon Rashid to assist in the constituency office during the election campaign. He had taken home a pile of PVA forms for distribution among members of his mosque. That would explain the fact that his fingerprints were found on several of them. His concession implied that someone else in Mr Rafiq’s household or a member of his family obtained access to the forms and completed them. He was not, he said, involved in the conspiracy. Mohammed Sultan

[10]Mr Sultan lived at 256 Toller Lane, Bradford. Other members of his extended family lived in adjoining tenanted properties at 252 and 254 Toller Lane. He also had a connection with properties at 114-118 City Road, and 22-24 Heaton Road. These were all addresses to be found in fraudulent PVAs. Mr Sultan was alleged personally to have completed 14 false applications and to have given relevant information to Alyas Khan concerning some others. Haroon Rashid had assisted him with the settlement of his bankruptcy in February 2005. Mr Sultan’s defence was that he had completed 11 applications for family members who subsequently signed the completed forms as necessary. As to the remaining 3 PVAs, they were not completed by him and he knew nothing about them. He had provided no information to Alyas Khan.

[11]We shall examine the grounds of each appellant in turn. Jamshed Khan

[12]In his interview under caution Jamshed Khan revealed that in 2003/2004 during an earlier local election campaign Alyas Khan had used the address of another property owned by the appellant at 22 Merton Road, Bradford for the purpose of making false applications for PVAs. He was confident that the handwriting on the applications which he had been shown was that of Alyas Khan. Jamshed Khan denied having anything to do with those applications. He suggested that the use of 17 Trinity Road was malicious and may have been connected with an ongoing dispute between the two men following the applicant’s successful local election in 2004 at the expense of Alyas Khan’s brother. Jamshed Khan maintained that he had little association with any of his co-accused save for Alyas Khan.

[13]The first trial of these appellants commenced in January 2009. Jamshed Khan and his legal team made a tactical decision to seek to remove from his interview record any reference to his allegations against Alyas Khan concerning the 2004 council elections since it was thought there was a risk that it would re-bound against Mr Jamshed Khan’s interests. The prosecution sought the admission of the evidence in order to assert that there had been an existing conspiracy in 2003 (hence the breadth of the particulars of offence charged). It was contended that the involvement of Jamshed Khan’s property at 22 Merton Road demonstrated a relevant propensity. The evidence was admitted.

[14]For reasons which are immaterial to the current appeal the jury were discharged at the close of the prosecution case. The re-trial commenced in November 2009. Again, the evidence concerning the previous election was admitted contrary to the objection made on behalf of Jamshed Khan. At the close of the prosecution case, however, the trial judge acceded to the renewed application made on behalf of the appellant and for a second time the jury was discharged.

[15]At the third trial commencing on 28 June 2010 the prosecution agreed to the editing of Jamshed Khan’s interview and the appellant elected to make no specific allegation against Alyas Khan. The defence proposition, put to Susan Saunders, an employee at the electoral registration office, and accepted by her, was that a tenant at 17 Trinity Street could have provided the necessary information for completion of the 12 fraudulent PVAs. In his final speech to the jury, Mr Jameson QC, who then represented Jamshed Khan, invited the jury to consider whether Alyas Khan may have “framed” Jamshed as a result of their falling out during the earlier council election. This was not, for the reasons we have explained, suggested by Jamshed Khan himself in evidence but it was an argument addressed to the jury which, the judge directed them, they should consider. It was a possibility which the prosecution must exclude.

[16]Late in the course of the trial the prosecution confirmed that of the 10,000 or so PVAs submitted during the run-up to the 2005 election only those which had been listed in the schedule before the jury, some 932, had been examined by the police for signs of fraud. A formal admission was made in the following terms:

“Postal vote applications: the jury have received an A3 schedule entitled: “All encompassing overview of postal vote applications”

. That schedule contained information on approximately 932 postal vote applications out of a total of approximately 10,000 postal vote applications submitted in Bradford West constituency prior to the general election in 2005.”

[17]The formal admission was not strictly accurate. The jury had already been informed that the prosecution had examined 1,600 PVAs. Those which had been extracted into the schedule were considered relevant to the current trial. It was first submitted on behalf of the applicants that the jury might speculate as to the existence among the 8,400 PVAs which were not examined of forms which would, if examined, demonstrate similar signs of fraud attributable to them. In Jamshed Khan’s case Mr Jameson submitted there was a risk that the jury would speculate there were other PVAs containing applications in respect of other premises with which Jamshed Khan was associated. In the alternative, Mr Jameson refined the argument he had made to the jury. He submitted that there might be among the 8,400 PVAs which had not been examined other forms which, the defence might have been able to establish, had been completed by Alyas Khan. If so, the defence would have been able to demonstrate that Alyas Khan had been involved in wholesale forgery which strengthened the proposition that he may have obtained access to information relating to 17 Trinity Road. The prosecution had failed, it was asserted, in their duty of disclosure.

The judge said:

“To say that every single document in a case, whether it has got to do with the issues or not, should be disclosed is to go back to the old warehouse days where the defendants are invited to come in and have a look at anything which might have to do with anything to do with the case. But if the defence had wanted to look at these it was perfectly open to do them before the very last day of this trial, which is the first time they asked about them.”

Furthermore, the judge concluded that if that had been the intention of the defence to support its argument that Alyas Khan was involved in wholesale forgery and fraud there was plenty of material before the jury upon which to base that argument.

[18]The trial judge refused the application to discharge the jury. He concluded that the applicants would be sufficiently protected by a firm direction to the jury that they must not speculate about the other 8,400 PVAs and must restrict their consideration of the case to those which appeared in their schedule. The judge made an exception in the case of Mr Rafiq since he was positively assisted by the existence of many other PVAs some of which, he would invite the jury to consider, belonged to Category U. We shall explain the relevance of his argument when we come to deal with his grounds of appeal.

[19]Mr Lakha QC, who has advanced the renewed application on behalf of Jamshed Khan, now argues that the judge was wrong to conclude that the trial should proceed. The disclosure regime which applied at the relevant time is that governed by the Criminal Procedure and Investigations Act 1996 (“CPIA”) as amended by the Regulation of Investigatory Powers Act 2000. Sections 3(1) and 7 (1) CPIA required the prosecution to disclose to the defence any prosecution material which might undermine the case for the prosecution against the accused or might reasonably be expected to assist the accused’s defence. “Prosecution material” was defined by section 3

(2) and 7

(3) as material:

“(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused or (b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.”

[20]The then current Code of Practice (1997 edition) issued under Part II pursuant to section 23 CPIA 1996 provided at paragraph 2.1 that the prosecutor shall be:

“the authority responsible for the conduct, on behalf of the Crown, of criminal proceedings resulting from a specific criminal investigation.”

The investigator is defined by paragraph 2.1 as:

“any police officer involved in the conduct of a criminal investigation.”

And a criminal investigation is:

“an investigation conducted by police officers with a view to it being ascertained whether a person should be charged with an offence, or whether a person charged with an offence is guilty of it. This will include…investigations whose purpose is to ascertain whether a crime has been committed with a view to the possible implementation of criminal proceedings…”

At paragraph 3.4 the Code provides:

“The officer in charge of an investigation may delegate tasks to another investigator, [or] to civilians employed by the police force [or to other persons participating in the investigation under arrangements for joint investigations] but he remains solely responsible for ensuring that these have been carried out and for accounting for any general policies followed in the investigations. In particular, it is an essential part of his duties to ensure that all material which may be relevant to an investigation is retained, and either made available to the disclosure officer or (in exceptional circumstances) revealed directly to the prosecutor.”

By paragraph 1.2 of the Code, the Code shall “not apply to persons who are not charged with the duty of conducting an investigation as defined in the Act”. The italicised words within square brackets were added to paragraph 3.4 of the Code by the Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005 (SI 2005) No. 985) as from 4 April 2005.

[21]Section 26 CPIA requires that:

“Those other than police officers charged with a duty of conducting criminal investigations must have regard to the Codes’ provisions.”

[22]Mr Lakha argues that in the present case the electoral registration officer and his staff were delegated investigators under arrangements such as those envisaged by paragraph 3.4 of the code. It is argued that the PVAs comprised material retained and examined by the electoral authorities in the course of a criminal investigation. For that reason the material should have been treated by the trial judge as “prosecution material” in respect of which the prosecution had failed to give disclosure. The 8,400 PVAs not examined by the police were not listed as unused material in the prosecution disclosure schedule and they should have been. Furthermore, submits Mr Lakha, the prosecution owed a duty arising from paragraph 9 of the then relevant (but no longer current) Attorney General’s Guidelines, paragraph 9:

“In some cases out of an abundance of caution investigators seize large volumes of material which may not, because of its source, general nature or other reasons, seem likely ever to be relevant. In such circumstances, the investigator may consider that it is not an appropriate use of resources to examine such large volumes of material ceased on a precautionary basis. If such material is not examined by the investigator or disclosure officer, and it is not intended to examine it, but the material is nevertheless retained, its existence should be made known to the accused in general terms at the primary stage and permission granted for its inspection by him or his legal advisors. A section 9 statement will be completed by the investigating officer or disclosure officer describing the material by general category and justifying it not having been examined.”

[23]Thus, submits Mr Lakha, the judge was wrong to describe the application made on behalf of Jamshed Khan as an attempt to revert to “warehouse” disclosure. As a matter of fact it was the obligation of the prosecutor to give specific access to this material following the service of such a section 9 statement.

[24]In his response Mr Gordon Cole QC explained that the police in West Yorkshire put in place measures designed to prevent fraud in the 2005 general election. The arrangement was that the electoral office would notify the police of any suspected fraudulent applications for postal votes. The police were to be informed if large quantities of PVAs were handed in to the office in batches. A number of addresses which might give rise to suspicion were notified to the electoral office. In consequence the electoral office submitted to the police some 1600 suspected PVAs (some, we understand, relating to the 2004 local election). It was contended on behalf of the prosecutor that this was not a joint investigation as envisaged by the Code. The police simply examined those applications which it was suspected might be worthy of investigation. The investigation was performed exclusively by the police and forensic experts engaged by the police.

[25]The first difficulty with Mr Lakha’s submission is that the parties appear to have been agreed that the “criminal investigation” commenced before the changes to the disclosure regime introduced on 4 April 2005 by the Criminal Justice Act 2003. It follows that the joint investigation provisions of paragraph 3.4 did not apply to the present investigation. It was, however, possible for the investigator to delegate parts of the investigation to others, including the electoral registration officer. In our view, the enquiry carried out by the police was neither a joint, nor a delegated, investigation. It was in the nature of an examination by a complainant of suspicious documents subsequently handed to the police. We would draw a comparison between the inquiry we have described and the production to the police of other suspicious documents, for example, cheques drawn on a bank. It would not, in such circumstances, be suggested that the bank was a joint or delegated investigator although it provided the material which was the subject of investigation. In these circumstances, we do not consider that the prosecution was under any obligation to list the remaining 8,400 PVAs in its unused material schedule. Accordingly, no obligation of disclosure arose. If, however, there had been information made available to the prosecution by the defence as to the possible relevance of the other PVAs we do not exclude the possibility that an obligation would have arisen to make an inspection for relevance with a view to disclosure. It is not suggested on behalf of Jamshed Khan that any such enquiry was made.

[26]For the same reason we conclude that there was no occasion for the completion of a Section 9 statement by the investigation officer or the disclosure officer. The additional documents were not “seized” in the course of the investigation.

[27]Even if, contrary to our conclusion, the outstanding 8,400 PVAs formed prosecution material which ought to have been disclosed, we have to consider the impact of a neglect to disclose upon the safety of the verdict in Jamshed Khan’s case. We are well aware of the principles recently referred to in this court in cases such as Hadley

[2006] EWCA Crim 2544

and Alibhai

[2004] EWCA Crim 681

. It is, however, common ground between the appellant and the respondent that it was well known to the defence teams that about 10,000 PVAs were submitted to the electoral registration office in Bradford during the 2005 general election. The information was made public. It was, accordingly, known at all relevant times to Jamshed Khan and his legal advisers that there were available 8,400 forms which, if examined, might reveal forgeries by Alyas Khan using addresses with which Jamshed Khan was (or was not) associated. Jamshed Khan was already in possession of material by which he could make good the assertion that Alyas Khan was no stranger to fraud and had indeed, on an earlier occasion, utilised an address with which Jamshed Khan was associated. Jamshed Khan made a tactical decision not to make use of this material and succeeded in persuading the trial judge to permit the editing of his interviews under caution in order to ensure that the jury would not speculate upon adverse possibilities. Jamshed Khan did not make an application to the prosecution for specific disclosure of documents which might the support the argument subsequently advanced to the trial judge. In our judgment, the appellant cannot have it both ways. He was not prevented from making the enquiry which, he was subsequently to assert, was denied him by a failure of disclosure. We are quite satisfied that Jamshed Khan had no intention of making to the jury the argument which Mr Jameson QC sought to advance to the judge at the close of speeches. The safety of the verdict was, in our view, in no way affected by any failure of disclosure by the prosecution. We reject the renewed application made on this ground.

[28]Mr Lakha’s second ground of appeal, also seeks to make use of the dilemma presented to the defence team. Relying upon JAK [1992] Crim LR 30, the appellant argues that the rules of evidence placed Jamshed Khan in an impossible position. On the one hand the revelation made by the appellant in his police interview assisted his assertion that he may have been used unwittingly by Alyas Khan for malicious purposes; on the other, he could not risk advancing that assertion since, if he did, he would run the risk that the jury would draw a further inference adverse to his interests. In those circumstances, Mr Lakha argued, it was impossible for the appellant to receive a fair trial.

[29]The case of JAK concerned a Crown Court trial upon an indictment alleging historic offences of rape. The trial judge acceded to an application to stay the proceedings on the ground of abuse, first on the ground of delay, second on the ground that corroboration was absent, and third on the ground that the defence was prevented from exploring the reasons for the complainant’s delay in making her allegation without revealing the existence of further complaints made against the defendant by another complainant. The result was that the jury would be denied the opportunity of evaluating the explanation for delay.

[30]It will be apparent that the circumstances in JAK were very different from those which applied in the present case. It was also a decision made before the enactment of the bad character provisions in the Criminal Justice Act 2003. In particular, what would have been revealed by the unedited summary of interview was not a further allegation of fraud against Jamshed Khan but occasions on which Alyas Khan had used an address with which Jamshed Khan was associated. There were two possible conclusions available to the jury: either Jamshed Khan had been the victim of Alyas Khan’s malice on an earlier occasion, or Jamshed Khan had provided similar information to a fraudster during the 2004 local election. It was a matter for judgment by the appellant and his advisors as to whether the further information assisted his case or not. We do not accept that the tactical dilemma with which he was faced rendered a fair trial impossible. We note that notwithstanding the successful omission of reference to the Merton Road PVAs: i) The jury were made aware of Alyas Khan’s plea of guilty; ii) The appellant gave evidence of his falling out with Alyas Khan; and iii) The jury received a formal admission, first as to the falling out, and second as to Jamshed Khan’s recognition of Alyas Khan’s handwriting on a number of unspecified PVAs. This enabled defence counsel, Mr Jameson, to invite the jury to consider the possibility that Alyas Khan may have been responsible for the PVAs attributed by the prosecution to Jamshed Khan. We agree with the conclusion of the single judge who also rejected this ground as without merit.

[31]Mr Lakha has raised a further ground of appeal namely the safety of the conviction in Jamshed Khan’s case should the conviction of Mohammed Rafiq be quashed. We shall consider this ground in conjunction with the appeal of Mohammed Rafiq. Reis Khan

[32]Miss Shant QC submitted that the learned trial judge fell short in his obligation to summarise the evidence relevant to the issues arising in the case of Reis Khan. The result, it is submitted, is that the jury may have been misled as to the strength of the prosecution case against him.

[33]The judge commenced his summing up in the conventional manner with his principal directions of law. When he came to the facts the judge made it clear that they should not convict any defendant, Reis Khan in particular, if he completed a PVA form with the consent of the purported applicant. The judge went so far as to direct the jury that even if a defendant had signed an application form he was not to be regarded as automatically dishonest. If he had the permission of the applicant, perhaps because the applicant could not write, the jury should not treat the signature as dishonest provided that the defendant had the applicant’s consent (transcript summing up page 33/1-15).

[34]Reis Khan accepted that he had completed 113 PVAs. He had, in addition, signed two of them with the consent of the applicant. Each of the PVAs completed contained the genuine address of the applicant. When he delivered the PVAs to the electoral office he had left his correct name and address together with the batch number of the application forms. It was acknowledged by Susan Saunders, the civil servant from the electoral registration office, that there was in each of the forms a box which, if ticked, entitled the applicant to have the form sent to an address other than the applicant’s usual address. In no case had Reis Khan attempted to divert the postal ballot papers from the applicant’s usual address and the evidence was that each of the applicants received their ballot papers. Sixty five of the 113 applicants had exercised their vote.

[35]The prosecution called 15 witnesses who gave evidence to the effect that they did or may have given Reis Khan permission to complete applications for postal ballot papers. That permission either related to the individual witness or, when the witness was the head of the family, permission given on behalf of other family members as well.

[36]Reis Khan accepted that in many cases he had assumed the consent of the applicant. He used his butcher’s shop as a canvassing office. Customers who had supported him in the 2004 local election were given the facility to leave their names and addresses on sheets of paper kept for the purpose on the counter of the shop when Reis Khan was not personally present or was otherwise occupied. By the close of the evidence the learned trial judge had calculated that of the 113 PVAs completed by Reis Khan 30 were being advanced by the prosecution as suspicious. They fell into the category of forms which Reis Khan asserted were completed on behalf of applicants who had left their names and addresses at his shop. Miss Shant QC submitted to the jury that there was insufficient evidence that in any respect Reis Khan was acting dishonestly. She pointed to the evidence that the constituency office encouraged the completion of PVAs on behalf of the applicant. It was a way of increasing the overall vote. Some constituency parties had type written application forms in the expectation that supporters would wish to use the postal ballot papers afterwards delivered to them. Miss Shant submitted that the judge failed adequately to summarise Reis Khan’s case and tended by his comments to the jury to diminish its impact. As to the lack of any attempt at diversion of the postal ballot papers, at page 30/4 of his summing up the judge said:

“Out of the hundreds of forms that you have … only a few had upon them those redirections to another address. All of these people who were forging these forms were running the risk they might be found out. What was the risk in fact? Susan Saunders told you that there were not too many checks done … unless there was something obvious like the same name living at different addresses and so forth. So self-evidently many people thought it was worth taking the risk of doing this which suggests that they did not think there was much chance of them being caught out.”

In our view the judge’s comment was legitimate. As a matter of fact a very small proportion of forms which were treated as fraudulent had been submitted with a view to re-direction from the address given. On the other hand, a significant proportion of the fraudulent PVAs gave false addresses for the purported applicants. The use of false addresses was another way of achieving the same object as ticking the box seeking re-direction. In Reis Khan’s case however, it was not suggested that any of the addresses were false. The legitimate point being made to the jury was not merely that the box remained un-ticked. It was further pointed out that the addresses themselves were genuine. In other words the ballot papers would be delivered to genuine addresses. In our view this was evidence was of central importance to the defence of Reis Khan and needed emphasis. We consider that the comment made by the learned judge which might have applied to other application forms did not apply to those admittedly completed by Reis Khan and the judge should have made this distinction clear.

[37]Contrary to the assertion made on behalf of Reis Khan the judge did remind the jury of the evidence of encouragement from constituency offices of the political parties at page 31/15-32/24. The judge concluded this passage with the following observation:

“Of course, there is absolutely nothing to stop anyone who has a genuine feeling that people ought to vote by PVA in order to increase the vote, because this is what Reis Khan said motivated him, there would be absolutely nothing wrong with him doing this albeit he hope that they would vote for Haroon Rashid. But what was his motivation, was it a genuine interest to get people out to vote or was it to use the ultimate vote, as the prosecution say it was, to send back in favour of Haroon Rashid forged?”

In our view this was a legitimate and obvious distinction for the judge to draw to the jury’s attention.

[38]It was Reis Khan’s evidence that in general, having completed the PVAs in batches, he would deliver them to a party worker for the purpose of obtaining the genuine signature of the applicant before submission to the electoral registration office. In this respect he said he acted entirely honestly, expecting that a legitimate signature would be obtained. At page 33/15 of his summing up, having directed the jury that a signature other than that of the applicant did not necessarily signify dishonesty,

the judge continued:

“Equally, to be guilty does it mean you have to have signed it yourself? Answer, no. If a particular defendant knew that somebody else was going to sign it falsely … then that person is still a party to this dishonest agreement, the writing itself on the document by that person is not necessary if he knew somebody else is going to do it dishonestly.”

We regard this direction, in itself, as entirely appropriate. However, the learned judge did not go on to identify for the jury any evidence that Reis Khan expected a party worker to forge the applicant’s signature. At page 40/3 of his summing up the judge said:

“He says either that he had the permission of the voter, or from the head of the family, or that people had left lists in his shop which he understood to be permission; and secondly, that he gave all the PVAs which he had written out with names and addresses to party workers, and that once he had given them out in good faith to party workers somebody else must have forged the signatures and, of course, there is no handwriting evidence, he points out, about the signature.”

At page 41/5

the judge continued:

“Now all of these may not be … by the party textbook … but if you believe him when he says that these things were … being done with what he believed was permission, genuinely believed was permitted, then he is entitled to be acquitted.”

Unfortunately in this passage the judge appears to have reversed the burden of proof.

[39]Miss Shant submits that the jury should have received a summary of at least the effect of the evidence of those 15 witnesses who gave evidence that they either did or may have given permission for Reis Khan to complete their PVAs. Some of the detail would have reminded the jury that some essential parts of the defence case had been confirmed by witnesses for the prosecution. At page 46/9

the judge said:

“… he operated from a shop … and some of the witnesses who appeared before you … pointed out that they had supported him as a Conservative in 2004 when he stood and some said they were prepared to support him again, and it is right to say that no-one suggests that every single postal ballot, postal vote application … was false. There are a number of genuine ones in every case as you will see when you look through the schedule, and where a defendant sent a genuine PVA to somebody which they sign, of course there would be no issue of anybody being manipulated, that person would be entering their own genuine vote. So let me remind you of the evidence relating to him that was called lies.”

The judge continued that there were “a number of witnesses” who said that they had not given Reis Khan permission either in respect of their own application or in respect of any member of their household. There were in fact four such witnesses, Jamilla Bi, Sajid Iqbal, Mohammed Nazir, and Wajid Shaikh. Miss Shant observed that in respect of these witnesses the judge reminded the jury of their appearance and of some of the detail of their evidence to the effect that they had not given Reis Khan permission. Jamilla Bi admitted that she believed it would be illegal for one person to complete the form of another. Jamilla Bi accepted that she was a customer of Mr Khan’s. Sajid Iqbal was Mr Khan’s neighbour and supported him in the 2004 election. Mr Iqbal also regarded it as illegal even to give permission for another person to complete his PVA. Mohammed Nazir believed it was illegal for another to complete his form. Wajid Shaikh accepted that he was a regular customer of Mr Khan’s. He too had supported him in 2004. While Mr Shaikh admitted that he had once filled in his own brother-in-law’s passport application he too believed it would have been illegal for Mr Khan to have completed his PVA form.

[40]The judge, in referring to those witnesses who had given evidence supporting the defence case, said at page 49/23:

“It is probably not necessary or helpful for me to go through each and every witness who spoke; what I need to do is tell you what the conclusion was and it is this: that a number of witnesses said that they may have written it themselves, could be their writing … three who say we definitely did give him permission … witnesses who said they may have given him permission or could not really remember after this length of time [13] …”

Miss Shant complains that the judge failed to remind the jury that some of the witnesses who conceded that they believed it may have been unlawful for Mr Khan to have completed PVAs on their behalf, and were fearful of admitting the truth, eventually conceded that they either had or may have given him permission. It was the defence case that those four witnesses who resolutely denied giving permission had been reluctant to admit the truth because they were fearful that they may have lent themselves to a procedure which was unlawful. The judge’s failure to identify this feature of the evidence in the cases of those witnesses who had given permission deprived the jury of the opportunity to make an important comparison between those witnesses who did and those who did not confirm the truthfulness of the defence case.

[41]At page 51/18 of his summing up the judge turned to the ESDA evidence as it concerned Reis Khan’s case. He said:

“In relation to Reis Khan’s case, the ESDA evidence establishes that in some cases the names and details of the voters concerned came through and in some cases the signatures came through, which means that they are done on top, one on top of the other. It is inescapable to conclude that they are, therefore, done in batches. But what does this mean? If they are done at one and the same sitting and the details of the signature and the rest of the details have come through and … you conclude that must have been one sitting, then Reis Khan cannot have been handing these forms on to somebody else to deal with. Mr Cole [for the prosecution] asked Reis Khan whether he could explain how it was that documents which contained a particular date, say 15th July … in a pile, and assuming that the authors of the document had filled in the correct dates, they would then be on top of it something with 9th July on it which would be an earlier document than the one underneath it. How that could be? And Reis Khan said that is something he could not answer. But typically these ESDA findings are for you to weigh up and decide what you make of them. Why would he, the prosecution ask, on his account of matters that people would come in the store from time to time and he would fill them out later, why is he putting them out one on top of the other? The reference to the date of documents that I have told you about are 454 and 456. On the other hand … if he did have a pile to fill out, there is nothing essentially wrong in filling them out – providing you are not the signer of course of all these - … if some party worker … who has then forged signatures, I suppose he too might well do it in batches so that the signatures come through. As always the issue for you is was it him or who is at it?”

The cross-examination to which the judge was referring took place on 16 July 2010. Mr Cole wished Reis Khan to consider PVAs exhibit nos. SEM 454 (Mohammed Matloob) and SEM 455 (Mohammed Munir). Both forms were dated 11 April 2005. The ESDA evidence established that an imprint of the contents and signature in SEM 454 had been indented upon SEM 94, another signed PVA, dated 7 April. On the face of it the ESDA evidence was inconsistent with Reis Khan’s evidence that he delivered completed but unsigned PVAs to party workers and appeared to support the prosecution case that he forged them, including the signatures, in batches. Reis Khan gave evidence that Mohammed Matloob was a supplier of sweets and goods with whom he had been trading for 10-15 years. He said that Matloob may have made a delivery to his shop and filled his form in there and then. Mr Khan did not accept that he had filled in SEM 94 at the same time as SEM 454. He accepted that the imprint of the handwriting in SEM 454 was indented upon SEM 94 beneath but he maintained that Mr Matloob had probably signed SEM 454 in the shop. The inevitable inference was that SEM 94 was underneath when he did so. Mr Khan did not explain how a completed and signed form may have been underneath SEM 454 when Mr Matloob completed it. One obvious inference was, assuming Mr Khan’s evidence to be truthful, that the form underneath had also been completed in the shop. Mr Khan was asked whether Mohammed Munir had visited the shop with Mr Matloob. Mr Khan believed that he had not. Mr Cole demonstrated that the contents and signature of SEM 455 had also become imprinted upon SEM 94 beneath. Mr Cole suggested to Mr Khan:

“So you [have] a form SEM 94 sitting under two other PVAs which you fill in and the form underneath is dated earlier. Was that your big mistake here Mr Khan? A: No sir.”

A: No sir.”

[42]It does not appear that the judge had the relevant documents in front of him at the time when he was summarising the evidence for the jury. They were dated April, not July, 2005. The underlying point, however, was an important one. If it was correct to direct the jury that Reis Khan had no explanation to give in response to the ESDA findings it was evidence capable of undermining Mr Khan’s defence. Mohammed Munir gave evidence for the prosecution. He told the jury that Mohammed Matloob (who was not a witness and had made no statement) was his lodger. Munir gave evidence that the signature upon SEM 454 might well have been his, while the signature upon SEM 455 purporting to be that of Mr Matloob looked to be Mr Matloob’s signature. The judge made no reference to this evidence in the course of the summing up. If the jury accepted the evidence of Mr Munir the inference invited by the prosecution, to the effect that all three forms had been filled in fraudulently by Reis Khan on the same occasion, was undermined or significantly reduced in effect. While it may have been literally true to say that Reis Khan could not explain the precise circumstances in which the indentations had occurred, it was quite wrong to convey the impression that without such an explanation the jury might draw a conclusion adverse to Mr Khan. In our judgment, these passages in the evidence required careful exposition to the jury so as to ensure they understood their true effect. At the end of the day’s sitting on 27 July 2010 Miss Shant raised this matter in the presence of the jury immediately before they were released for the day. She pointed out her belief that there was only one occasion on which the ESDA evidence had demonstrated the indentation of a signature which related to the witness Munir. The judge responded at page 68/35:

“Dark hair, moustache. I will look at my note again but I am sure you are right about that in saying that it might have been his well there it is Ladies and Gentlemen thank you …”

Once the jury had left court Mr Ainsworth for the prosecution, reminded the judge that there were in fact two relevant signatures which concerned both Munir and Mahmood. The judge said that he would check his notes. The judge described it as “an anodyne issue really”. Miss Shant, at page 72/33 expressed her disagreement. She said “it is a very important point”. She invited the judge to remind the jury of the defence case that if, as the prosecution asserted, Reis Khan was fraudulently signing PVAs in batches, it was a surprise that the ESDA evidence should only have revealed indentations from the forms relating to Munir and Mahmood. Mr Ainsworth provided to the judge the correct exhibit numbers SEM 454, 455, and 94. Miss Shant reminded the judge at page 73/20 of the evidence of Munir. The judge said he would remind the jury of the evidence. When the jury returned on the morning of 28 July 2010 the judge corrected his calculation of the number of PVAs completed by Reis Khan in respect of which fraud was an issue as follows (page 96/17):

“… leaving 30 where on the one hand the prosecution make their point … and the defence point is that those are covered by lists that were left in the shop or by ladies or children and families to whom Mr Khan said please remember with the election coming up to fill out the PVAs and then has filled out the PVAs for them – that is what he says. In that regard may I also remind you that it is his case that all the people … he was targeting were previous supporters of his or people who he thought were going to support him or the Conservatives in this election, albeit that he added that in any event he felt that he ought to try and increase the postal vote take-up in any event. So I remind you that his case is that these were supporters, that is what he says.”

The learned judge did not return to SEM 454 and 455. He did not remind them that there were two relevant PVAs and that his earlier expression “some” was an error. He did not remind them of the evidence of Mr Munir, and the judge’s observation that no explanation had been provided for the ESDA evidence remained uncorrected. In our judgment this was a serious omission from the summing up. The underlying theme of Reis Khan’s defence had been confirmed by several witnesses. All the addresses inserted were genuine. Only four witnesses had given evidence adverse to his case concerning a total of 113 PVAs. The prosecution relied upon the ESDA evidence as a source of support for the four adverse witnesses and as a source which undermined the account given by the appellant. We consider that the absence of a careful and accurate direction upon the effect of the ESDA evidence in Reis Khan’s case has the effect of undermining the fairness of his trial and therefore the safety of the verdict in his case. For this reason his appeal against conviction will be allowed and the conviction quashed. Mohammed Rafiq

[43]The prosecution sought to prove its case against Mohammed Rafiq by establishing that he was the author of a substantial number of PVAs identified by the prosecution handwriting expert, Kim Hughes, as Group C. From Mr Rafiq’s family home at 51 Cecil Avenue were recovered two address books, loose correspondence and envelopes. The exhibits were labelled JHT 278 and SLM 11-13. Mr Hughes found multiple handwriting in both English and Urdu on the exhibits. Included among the samples examined was handwriting which, in Mr Hughes’ opinion, was the same as that found in the Group C PVAs, although Mr Hughes’ evidence was that most of the writing in the address books was in a hand other than that which was the author of Group C. Also found in the appellant’s bedroom at 51 Cecil Avenue was a completed Pakistani passport application form in his name (RSA 184). The handwriting in the passport application form was, in the opinion of Mr Hughes, common with the handwriting found in a separate group of allegedly fraudulent PVAs, five in number, constituting Group U. The handwriting in Group C and Group U was, it was common ground, different and distinct.

[44]It had from the outset of the investigation been the appellant’s case that he was illiterate and could not write in English. It is sufficient to describe the state of the evidence upon this issue as controversial. The prosecution based its case almost entirely upon the proposition that Mohammed Rafiq was the author of Group C. It did not suggest that Mr Rafiq’s complicity in the conspiracy could be established in any other way.

[45]Accordingly, at the close of the prosecution case it was submitted by Mr Hussain QC on Rafiq’s behalf that there was insufficient evidence to go to the jury on the issue of the authorship of Group C. First, the prosecution had been unable to establish whether Mohammed Rafiq was the author of any of the documents which had been recovered from his home rather than one of his several family members and, secondly, the prosecution was not in a position to demonstrate that he was the author of Group C rather than Group U.

[46]The learned judge rejected the submission of no case, finding that the following features enabled the jury to consider whether an adverse inference could properly be drawn: i) The appellant was a supporter of the Conservative party; ii) Of 126 PVAs in Group C, 98 were fraudulent; iii) Of the Group C PVAs, 45 had been found to contain his fingerprints upon them; iv) Documents found in the appellant’s house had upon them writings by the same author as the documents in Group C; v) Some of the Group C PVAs had been completed one on top of the other. The jury were entitled, the judge ruled, to infer that the explanation for the number of the Group C applications on which the appellant’s finger marks were found was that the appellant was the author of them. The judge did not explicitly deal with the second and alternative argument addressed to him. If upon the evidence the appellant could have been the author of Group U rather than Group C the prosecution’s case against him was fatally undermined.

[47]It is Mr Hussain’s submission that the learned judge had not fully appreciated the significance of the latter submission until the defence closing speech to the jury. The evidence had not by then improved. Mr Hussain submitted to the jury that if the appellant, contrary to his case, could read and write, it was a more substantial inference that he was the author of his own passport application found in his bedroom and therefore that he was the author of Group U than that he was the author of some of the entries in the address book and on loose envelopes found in the living room and, therefore, the author of Group C. Mr Hussain submitted that the number of the appellant’s finger marks found on Group C PVAs was unpersuasive. The appellant’s fingerprints were also found on three of the five PVAs in Category U. The percentages were 37% and 60% respectively. As to the possibility that a mistaken impression may have been created by the lower numbers of PVAs in Category U, he pointed out that there were some 8,400 further PVAs that had never been examined. Had they been examined it might have been found that there were several more Group U PVAs. If so, it was a real possibility that the appellant’s fingerprints would be found upon them.

[48]It was this submission to the jury which alerted the other appellants to the possibility of an application to discharge the jury for a failure to make proper disclosure, an application which we have already considered earlier in this judgment. In the case of this appellant, however,

the judge gave the following further direction to the jury:

“Whoever wrote Group C, which is a live issue in this case with which I shall deal later in my summing up, Group U has not been put forward as a named defendant. In the case of Group U my direction to you is that you should not exclude the possibility that within this 8,000 or so other postal vote applications there may be a number of group Us which may or may not have contained Mr Rafiq’s fingerprints so a different situation applies to him. The prosecution certainly do not suggest that in his case there is anything more than Group C and once again had that been the case you would have been told.” (page 28/20-29/6). However, at page 112/16-19 the learned judge left to the jury a prosecution case which failed to grapple with the significance of this direction: “Now the Crown’s case is that in the context of this case for his fingerprints to be on so many of Group C in such a high proportion you can draw the inference that the only way his fingerprints got on them would be if he had been writing them.”

At page 114/9-13

the judge said:

“He has undoubtedly got a high proportion – and it is not about proportion it is numbers as well – fingerprints on these Group C documents and he had a motive as he was prepared to support Haroon Rashid.”

As to Group U

the judge said at page 112/1-2:

“… in Group U three out of five had the defendant’s fingerprints upon it.”

At page 114/1-6 he continued:

“What we do not know is whether or not there might be, if all 10,000 of these PVAs had been examined, more in Group U with the defendant’s fingerprints upon them, so there is a sort of missing factor in the case says Mr Hussain. How do you know – and you have to bear that in mind and make of it what you think appreciate.”

[49]It seems to us that it was equally significant that the prosecution had failed to establish who were the authors of the samples from which Mr Hughes made his comparisons. It was accepted by Mohammed Rafiq that he had taken home a large number of PVA forms for completion by members of his family. He denied that he had completed any of them.

[50]Mr Cole QC for the respondent frankly conceded that the prosecution case against Mohammed Rafiq had from beginning to end been based upon the assertion that he was the author of Group C. He conceded that it was a logical inevitability that the judge would be required to give a direction such as that which he gave at pages 28 – 29 of his summing up. On reflection, however, Mr Cole was unable to counter Mr Hussain’s submission that such a direction undermined the basis upon which the learned judge found a case to answer at the close of the prosecution. We agree. It seems to us that had the same argument been addressed to the judge at the close of the prosecution case as Mr Hussain later developed for the jury, the learned judge would not have been in a position to conclude that the fingerprints might establish the authorship of Group C. That this is the case is, it seems to us, demonstrated by the apparently contradictory directions given to the jury at pages 112-114 of the summing up. Since it was admitted by Mohammed Rafiq that he had handled a large number of blank PVA forms and since there was nothing to which the prosecution could point to demonstrate that he was the author of one group rather than the other, the submission of no case to answer should have succeeded.

[51]Mr Hussain argues, secondly, that the judge erroneously gave the jury a direction that they could consider Mohammed Rafiq’s failure to mention facts in his interviews which he later relied on at trial, pursuant to section 34 Criminal Justice and Public Order Act 1994. At page 13/16 the judge directed the jury as follows:

“… I want to turn to the issue of the defendant’s interviews and one particular aspect of them. This is applicable … to all of the defendants except Jamshed Khan, because you have Jamshed Khan’s interview and he answered the questions that were put to him and dealt with the issues that were raised with him, and I have to give you a careful direction about this.”

At page 14/15

the judge said:

“In the case of Mr Rafiq he answered some questions in his first interview but later on refused to be further interviewed or answer further questions, he says, on the advice of his solicitor.”

At page 15/7

the judge said:

“Each of the defendants admits that they failed to mention the full picture either by declining to answer questions at all or by giving … a partial picture of what has taken place.”

The judge proceeded to give the jury a conventional section 34 direction. In particular, the judge directed the jury that they should examine the question whether the defendant whose case they were considering genuinely relied on legal advice to remain silent.

[52]In the case of Mohammed Rafiq the prosecution had not identified any fact upon which the appellant relied at trial which he had not earlier mentioned in his interviews. The learned judge did not identify any such fact. Neither Mr Hussain on behalf of Mohammed Rafiq, nor Mr Cole on behalf of the respondent, could identify any fact which the judge may have had in mind. It appears to have been an oversight that the error was not corrected either by counsel or by the judge himself. In our judgment, the effect of the judge’s direction was to invite the jury to speculate in an area of the evidence in which they had received no assistance. Had we not concluded that Mohammed Rafiq’s case should have been withdrawn from the jury we would have found this to have been a fatal misdirection.

[53]Thirdly, Mr Hussain submitted that the judge, at the conclusion of cross-examination of Mr Rafiq, conducted his own cross-examination of the witness. The judge’s purpose was to elucidate who within the appellant’s immediate family could have been the author or authors of the fraudulent PVAs in Groups C and U. Mr Hussain submits that the judge adopted the role of the prosecutor. In the light of our findings upon the first two grounds examined, it is unnecessary for us to reach a conclusion.

[54]We have concluded that at the close of the prosecution case there was no evidence fit to be left to the jury from which the jury could conclude that Mohammed Rafiq was the author of Group C. Mr Cole fairly concedes that his case against Jamshed Khan depended upon proof that Mohammed Rafiq was the author of Group C. The prosecution endeavoured to establish the association between them in order to invite the inference that Jamshed Khan was assisting Mohammed Rafiq to make false applications for ballot papers. Once the case against Rafiq was undermined, we accept that so also was the case against Jamshed Khan. We allow the appeals of both appellants and their convictions will be quashed. Mohammed Sultan

[55]Mr Barraclough QC submits that the learned judge gave an inadequate summary of the evidence relevant to the defence case. In the case of Mohammed Sultan the prosecution relied upon a total of 14 PVA forms in Group M, exhibits SEM 168-179, 920, 925 and 977. Exhibits SEM 168-179 were purportedly submitted on behalf of members of the appellant’s family who lived in adjoining houses at 252-256 Toller Lane, Bradford. It was accepted by Mohammed Sultan that as the head of the family he had organised the completion and signature of postal vote applications by members of his family. His case was that each of the signatures was genuine. As we have said, the prosecution adduced no handwriting evidence relevant to the signatures. SEM 920, 925, 977 were in a different category. SEM 920 and 977 related to purported applicants with addresses at 22-24 Heaton Road. SEM 925 concerned an applicant who lived at 188 Toller Lane. It was Mohammed Sultan’s case that the probable author of SEM 920, 925 and 977 was his son, Shafiq. Shafiq had given evidence in the two earlier trials. On both occasions he had declined to answer any questions. On the occasion of the third trial, however, Shafiq was prepared to answer questions and Mr Barraclough sought in cross-examination to demonstrate his close association with 22-24 Heaton Road, his animosity towards members of his family, especially his father, his alleged fraud upon his grandmother in respect of one of the properties, 114-118 City Road, and his attempts to dissociate himself from documents which purported to contain his signature. Found on Alyas Khan’s home computer were lists of names and addresses which, the prosecution argued, represented Alyas Khan’s preparation for making false PVA applications. Among them were the names of members of Mohammed Sultan’s family who had already made applications as residents of Toller Lane entered as “residents” at 114-118 City Road. The issue arose as to who gave Alyas Khan the information which enabled him to list those names at the City Road address. Mohammed Sultan’s case was that he was not the source. The probable source was his son, Shafiq.

[56]Shafiq gave evidence that he had never heard of Mohammed Khan who, it was his father’s case, was his father’s first cousin who was living at the material time at 252-256 Toller Lane and signed PVA SEN 175. He denied that he had signed his own PVA SEN 170 and claimed that he was unaware that his father had completed it for him. He said it would be illegal for someone to fill in a form which was not his own, with or without consent. Shafiq agreed that another applicant, Mohammed Marven, was his uncle, but claimed that he was living in Glasgow in 2005.

[57]The purported applicant in SEM 174 was Mohammed Bostan. He was the father of Duliat Bibi, the purported applicant in both PVAs SEM 173 and 920. Both purported applicants were identified as living at the same address 256 Toller Lane, Heaton, Bradford, the family home of Mohammed Sultan and his family. It was the appellant’s case that those applications were genuine. However, a further application was made purportedly on behalf of Duliat Bibi (SEM 920) living at 24 Heaton Road, Bradford and purportedly on behalf of Said Bibi (SEM 925) living at 188 Toller Lane, Bradford. These documents, it was accepted, were not genuine.

[58]When asked questions by Mr Barraclough about Mohammed Bostan, Shafiq, while he acknowledged that he was the owner of 114-118 City Road and that the property had been leased to Mohammed Bostan in late 2003 – early 2004, denied that he was the lessor. He denied that he had signed the tenancy agreement. He claimed that Mohammed Bostan had been living in Pakistan for the last 10 years. He then denied that the Mohammed Bostan to whom 114-118 City Road had been leased was the same Mohammed Bostan who was a relative. In respect of the same property Shafiq said that the family had received advice from a man they called “the doctor” that all people who worked in the UK Windows business being conducted from 114-118 City Road should be registered on the electoral list in order to boost credit ratings if and when the family wished to borrow money. Shafiq was shown an extract from the register for electors for 2005. Shafiq denied that the signature purporting to seek his registration at 114 City Road was his. He denied representing that Mohammed Bostan was resident at 118 City Road. Shafiq was shown a clip of correspondence demonstrating that an application had been made for a LOTS grant for 114/118 City Road. The correspondence was addressed to “M Shafiq”. He denied making the application.

[59]Shafiq was shown a clip of correspondence between a firm of estate agents and “Mohammed Shafiq” of 252 Toller Lane, dated late 2004 to early 2005. Shafiq denied that he was living at Toller Lane at that time despite the correspondence sent to him at that address.

[60]SEM 977 was a PVA purportedly made by Abdul Khaliq of 22/24 Heaton Road, Bradford. It was the prosecution case that the application was completed by Mohammed Sultan. The owner of 22-24 Heaton Road was Shafiq, a fact which Shafiq accepted in evidence. He also accepted that Abdul Khaliq was his tenant. It was the appellant’s case that Shafiq had probably filled in the form for his own tenant. Shafiq denied that he had entered names in the register of electors for 24 and 24a Heaton Road. Shafiq denied making tenancy agreements in respect of 254 and 256 Toller Road although they purported to be signed by him.

[61]Shafiq claimed to have been given the property at 114-118 City Road in 1999 by his grandmother as a wedding present. He was, however, obliged to admit that he never married and was not engaged to anyone in 1999.

[62]Shafiq denied being the author of SEM 920, 925, and 977.

[63]Several PVAs in Group K used addresses in City Road. None of them was linked with Mohammed Sultan. The defence assertion was that since Shafiq was the owner of the property he was the likely source at least of the information contained within the applications.

[64]Mr Barraclough submits that the learned judge presented Mohammed Sultan’s case to the jury in a form which tended to reverse the burden of proof. At the commencement of his summary he said at page 54/8:

“In the case of Mohammed Sultan the case against him is that he forged PVAs 168/169 and 920 to 179 and 920, 925, 977. On the face of it 168-179 are members of his family and there has been no evidence from any member of his family apart from two, his two sons, Haq Nawaz and Shafiq. Haq Nawaz said he did sign his and indeed saw his mother and one other person sign. Shafiq said that is not his writing on the one that is attributable to him, Shafiq, so someone has forged it. Nor did he write the form, Shafiq. It may be most helpful if you start off with 920, 925 and 977 because if the defendant, Mohammed Sultan, wrote those and did so dishonestly, you may have little hesitation in concluding that he must have been dishonest with the others – not that it matters in terms of numbers because the question is whether he did any.”

[65]On the contrary, submitted Mr Barraclough, the judge should have directed the jury that there was evidence that members of Mohammed Sultan’s family had indeed signed their respective PVAs. The only evidence to the contrary came from Shafiq about whose evidence there was much cause for doubt. The judge should have presented to the jury the alternative approach to the evidence, namely that if they took the view that Mohammed Sultan’s family, living at 252-256 Toller Road, had or may have signed their own application forms, that was evidence which appeared to suggest that Mohammed Sultan was in general acting honestly rather than dishonestly. Such a conclusion might assist as to whether or not the prosecution had established that, contrary to his denial, he was the author of SEM 920, 925 and 977.

[66]At page 62/17 of his summing up the learned judge correctly identified that a significant part of the defence case was whether Shafiq may have been in league with Alyas Khan which had caused not only the 920, 925 and 977 forgeries but other instances when members of the family had been recorded as residing at several different addresses. Between pages 62 and 65 of his summing up the judge summarised the evidence which emerged in the course of Mr Barraclough’s cross-examination. We do not consider that the judge failed to give to the jury a proper summary of Shafiq’s evidence as it related to his father. He made some errors of detail but they were corrected at Mr Barraclough’s invitation.

[67]It is argued on behalf of Mohammed Sultan that a critical part of the evidence came from the handwriting experts respectively for the prosecution and the defence. Mr Barraclough submitted that the judge’s summary of the evidence was unbalanced. He gave to the jury a detailed description of the comparison made by Mr Hughes between the writing, admittedly by Mohammed Sultan, in SEM 168-179 and the disputed handwriting in SEM 920, 925 and 977. Mr Hughes’ conclusion was that the writer was one and the same person. The judge informed the jury of Mr Ansell’s opinion that this was too strong an attribution; that Mr Ansell accepted that there was some evidence of similarity but did not accept that it was conclusive. He would not describe it as strong. In evidence Mr Ansell pointed to several dissimilarities. In taking account of similarities Mr Ansell had made the point that it was appropriate to have regard to cultural and familial similarities. Again, none of the detail of Mr Ansell’s evidence was included in the summary. At page 56/7 the judge said this:

“There was reference to cultural and familial similarities, well there you can use your own experience, how many of your children write like you, how many of the people you know who have children who write like them, you can start to use your own experience of the world as I invited you to do, your own knowledge and understanding of the world outside this court room. Just because we are all in here does not mean to say you leave your life’s experience outside, it does not, and actually you may think, and here I am doing something I have told everybody else not to do including you, that when you look at these documents which are written by the Asian constituents of this area, there does look on the face of it to be on the face of it a sort of similarity which is inexplicable between them all – anyway.”

While the judge’s direction is not entirely clear in its language, the thrust of his direction to the jury was that they could test their own personal experience against the caution which Mr Ansell advised was necessary in the particular circumstances of the present case. In our view, without a specific reference to contrary evidence by Mr Hughes, if any, this was an inappropriate direction to the jury, as the judge appears to have been acknowledging himself towards the end of his direction.

[68]At page 56/20

the judge responded to Mr Ansell’s identification of dissimilarities:

“… does your writing always look the same, does it have the same curves, does it slant the same way all the time, or is it affected by mood, whether you are just dashing something off quickly or whether you are trying to be careful in what you are writing … This was a bone of contention with Mr Barraclough’s cross examination of Mr Hughes. Look at the slope, look at the shape here, is that not different? Well yes it is said Mr Hughes but nonetheless there are so many similarities that it is referable to the fact that people write differently from time to time.”

Again, submits Mr Barraclough, the learned judge was not adopting an impartial approach to the evidence respectively given by the experts.

[69]Mr Ansell, having examined SEM 168-179, gave evidence that in his view there were at least 7 different hands writing the signatures. This was important evidence since, if Mr Ansell’s evidence was accepted, it undermined the prosecution’s assertion that all the signatures were forged by Mohammed Sultan.

The judge said to the jury at page 61/4:

“I remind you that in divider 7 Mr Ansell helpfully looked at the signatures of all these things and he said there were 4 or 5 or more different signatures, not let it be said, ladies and gentleman, 14 different handwritings, so once again there is some forgery undoubtedly going on, but nobody of course could say whose they were.”

Mr Barraclough submits that the judge wrongly summarised the evidence, reversed the burden of proof and corrupted the true effect of Mr Ansell’s evidence. There were 14 documents with which the jury was concerned. It was the opinion of Mr Ansell that there were at least 7 different hands to be found in the 14 documents. It followed that he could not exclude the possibility that there were 14 different signatures. The judge appears to have conveyed to the jury that Mr Ansell had been saying that there were at most four or five different signatures; otherwise, the conclusion to which he invited the jury, namely that some of them were undoubtedly forged, could not have been reached.

[70]At page 62/21 the judge made a point to the jury to the effect that the defence had failed to establish any reason why Shafiq should support the Conservative party by the use of fraudulent PVAs, particularly while in league with Alyas Khan. As the judge put it “no motive was advanced for this”. Mr Barraclough complains that the judge’s reference to motive was unfair since the prosecution had not in the case of Mohammed Sultan advanced evidence to the effect that he was an ally of Alyas Khan.

[71]At the conclusion of the judge’s summary of the case concerning Mohammed Sultan Mr Barraclough, in the absence of the jury, drew to the attention of the judge several comparatively minor inaccuracies. His principal complaint was that the judge had not adequately summarised the defence case.

[72]On the following morning, 28 July 2010, at page 97/6 the judge returned to the case of Mohammed Sultan. He corrected some of the less consequential factual errors made in his summary and, at page 98/13 turned to the evidence of Mr Ansell. The judge corrected his reference to “at least four” authors of the 14 signatures concerning Mohammed Sultan’s case. He continued:

“It is right to say that his evidence was that there was at least 7 authors and it could be said that if he says at least 7, I suppose one interpretation of that could be that there were 14 authors, and you will have to make what you think appropriate of the fact that he says at least 7. On the face of it he had got 14 signatures by different people. You might think that somebody would say well there are 14 different lots of writing, 14 different authors – anyway, he said there is at least 7 and you will just have to make of it whatever you think appropriate.”

Mr Barraclough submitted that this was an inadequate correction of the effect of the judge’s earlier direction to the jury and, if anything, tended to confirm its impact. The judge continued to reverse the burden of proof.

The judge’s only further reference to the evidence of Mr Ansell, page 99/4, was:

“Before leaving Mr Ansell finally, can I remind you that in relation to 920, 925 and 977 he said that one of the things that made him say that there was a less strong connection between that and the others was the style and slope of the writing was different. Mr Hughes tended to dismiss these – as I have said the choice is yours.”

Mr Barraclough contends that this was inadequate to redress the balance in the judge’s summary of the expert evidence. The judge had reminded the jury of the details of Mr Hughes’ analysis but none of Mr Ansell’s.

[74]In support of the case against Mohammed Sultan the prosecution relied upon the discovery on a screen page of Alyas Khan’s computer of a number of names and addresses for members of Mohammed Sultan’s family. For example, the name Mohammed Bostan appeared against the addresses 114 City Road, 118 City Road and 256 Toller Lane. At page 66 of his summing up,

the judge said:

“That is divider 3, Alyas Khan. These were taken off Alyas Khan’s computer. Somebody gave Alyas Khan this information. Who did he get it from? Who could have known all this? Shafiq was never asked if he knew Javed Ahmed – you see Javed Ahmed about 14 names down in column 1 and Seead Ahmed, not as I recall anyway; and in the other column Gulzoor Ahmed and Quarim Ahmed of Duckworth Terrace. Mohammed Sultan knew them … Javed and Seead were described as cousins and Culzoor and Quarim described as friends; and the prosecution say that realistically the only person who could have given Alyas Khan this information is Mohammed Sultan.”

[75]Mr Barraclough complained that the jury should have been warned against attaching too much significance to the appearance of the names and address in Alyas Khan’s computer. While they may have constituted evidence in support of the allegation of conspiracy there was no evidence as to the source of his information. The purpose of cross-examination of Shafiq had been to establish his personal connection with City Road, Heaton Road, and Toller Lane demonstrating the possibility that he was the source of Alyas Khan’s information. Mohammed Sultan’s evidence was that the names mentioned by the judge were either family members or friends. It was unfair, Mr Barraclough submitted, for the judge to turn Mohammed Sultan’s evidence into an argument in favour of the prosecution. On the morning of 28 July 2010 the judge added the following at page 99/10:

“Can I remind you that in relation to Alyas Khan’s list and who might have supplied that information to him that it is right to observe that Mr Alyas Khan of course did not give evidence here and you must decide whether in his absence, to suggest that that list comes from Mohammed Sultan is a reasonable inference or mere speculation.”

[76]The absent feature in the summary of the defence case was that, having regard to the unsatisfactory evidence of Shafiq, the jury could not exclude the possibility that it was Shafiq who was the informant rather than his father, Mohammed Sultan.

[77]Finally, the judge summarised the evidence of Mohammed Haq Nawaz, the appellant’s son, that he had seen members of his family sign PVAs. The witness was able to identify Shafiq’s signature upon a tenancy agreement whose authorship he had denied. He gave evidence that Mohammed Bostan had been to Pakistan recently but in 2005 he was in Bradford. The judge concluded:

“I will just see if I need to remind you of anything more in relation to Mr Mohammed Sultan’s case – no, that is it.”

[78]Mr Barraclough submitted that the judge’s return to the case of Mohammed Sultan was inadequate to correct the unbalanced impression created by his earlier summary of the evidence. For example, Mr Hughes had given evidence that he could not exclude the possibility that Sultan had not signed forms SEM 922, 925 and 977. The jury never received such a reminder. The jury were not reminded that in respect of SEM 977, Khaliq was the only occupier of Heaton Road who had purported to apply for a postal vote. The jury were not reminded of the defence argument that if he was responsible for the number of electors registered at Heaton Road, it was surprising that Mohammed Sultan had not sought ballot papers in respect of them. At the top of the form purportedly submitted by Khaliq was Khaliq’s telephone number. Had a call been made the fraud, if it was a fraud, would have been revealed.

[79]Mohammed Sultan gave evidence in his own defence and the transcript of his evidence occupies some 74 pages. He gave detailed evidence as to the identities of those living at various addresses, his relatives, documents which confirmed their identities, the way in which his mother came to sign her PVA, the butcher’s shop occupied by Khaliq, his son Shafiq’s relationship with Khaliq at the shop, his own relationship with Haroon Rashid, the request made by Haroon Rashid that his family complete their PVAs, how the list of names in Alyas Khan’s computer may have come into Khan’s possession, the circumstances in which Shafiq signed his PVA, his explanation that he would not complete a form for any individual whom he knew would not vote, the explanation for the ESDA evidence, documents recovered for use in handwriting analysis and documents recovered from his briefcase. There was no summary of Sultan’s evidence in any recognisable form, only a statement as to what was his case.

[80]We have considered anxiously whether the judge’s summing up in the case of Mohammed Sultan provided a fair reflection of the evidence for consideration by the jury. The critical issue in Mohammed Sultan’s case was the authorship of SEM 920, 925 and 977. The proper interpretation of the handwriting evidence was an important part of the jury’s function. On more than one occasion the judge instructed the jury that they were not to act as their own experts but were to assess the reliability of the evidence of the experts. However, while the judge provided the jury with some detail of the evidence of the prosecution expert, we consider that the judge’s reminder of the evidence of Mr Ansell was perfunctory. Furthermore, instead of leaving to the jury the task of assessing Mr Ansell’s opinion based upon his own expert experience, the judge invited the jury to judge his opinion against their own experience, a course which he acknowledged was contrary to his own instruction.

[81]Secondly, we consider that the jury received an unbalanced direction as to the significance of the material recovered from Alyas Khan’s computer. It seems to us that the prosecution had advanced no evidence which demonstrated the unlikelihood that another member of Mohammed Sultan’s close family might have provided the same information as the prosecution were attributing to Mohammed Sultan. The computer evidence was neutral. However, the judge left the computer evidence to the jury as support for the prosecution case against the appellant. We accept Mr Barraclough’s submission that the jury required a direction to exercise caution. It was not enough to remind the jury that Alyas Khan had not given evidence. The jury should have been directed to consider whether the prosecution had excluded the possibility that the information gathered had been obtained from someone other than the appellant; that in this context the responses of Shafiq to Mr Barraclough’s questions concerning 114-118 City Road were important.

[82]Finally, we consider that the jury should have been reminded of the material parts of Mohammed Sultan’s evidence. His evidence was summarised in 21 lines at pages 66 and 67 of the summing up. We cannot be sure that the verdict in Mohammed Sultan’s case is safe. His appeal is allowed and his conviction quashed.