Bashir, R. v [2011] EWCA Crim 2763

[2011] EWCA Crim 2763

Case No 2011/02471/D1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 3 November 2011

Between

R E G I N ACrown

The Strand

London

WC2A 2LL

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

(Lord Judge)

MR JUSTICE BUTTERFIELD

and

MR JUSTICE HENRIQUES

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- v -

Between

ARFAN BASHIR

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__________________

Miss N Bahra appeared for Appellant

Mr J Knowles QC appeared for Crown

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J U D G M E N T

[1]On 5 April 2011, in the Crown Court at Reading, Arfan Bashir was convicted of assaulting his wife, Meh Jabeen, on 9 August 2010 thereby occasioning her actual bodily harm. He was later sentenced to 18 months' imprisonment. He now appeals against his conviction by leave of the single judge.

[2]The appellant and his wife lived together at an address in Reading. It was the case for the prosecution, based on accounts in a witness statement made by the complainant taken at the hospital where she had gone for treatment, that the incident on 9 August which led to the assault had started because the complainant had refused to trim the appellant's hair when asked. This angered the appellant who started to damage property within the matrimonial home. He then told the complainant to get out, but she did not respond. It was alleged that the appellant threw a shoe at the complainant, hitting her on the head. He then took hold of the complainant's hair and dragged her around the rooms in the house. When the complainant managed to get away, the appellant followed her and punched her hard on the nose in consequence of which she sustained a cut to the bridge of her nose, a swollen nose and grazes to her arm and chest.

[3]The complainant's witness statement contained a good deal of background material which was not directly relevant to the incident about which she first made complaint. She said:

"My husband has often spent time in jails, and he was in jail whenever a baby was born to me. When I was living with my in-laws he used to beat me or pick up fights with me but my in-laws used to pacify things. My husband used to break things in the room whenever he became angry, eg. TV, CD, etc, and he used to scream at the top of his voice which made me very frightened. I have spent very difficult life in this country ever since I came here. .... He picks up fights with me and beats me up with his hands or with his shoes about twice a month. My children are very frightened and they cry because he throws thing around -- towards me or in any direction. He never cares where those things will hit me or the children. I get hurt a lot but never knew that I could get help from someone. .... These beatings have been part of my life ever since I came to England. I could never tell anyone because of my honour. He used to beat me whenever I got pregnant. He used to drag me by pulling my hair, so badly that I used to urinate there."

Later in her witness statement she said: 4. "He had also beaten me severely two days ago. .... The situation is an everyday occurrence for my children. These kinds of incidents take place in front of the children. He beats me in front of them. .... To beat me like this has become his daily routine and I fear that one day he might kill me by beating me up like this. I fear for my life when he gets angry and throws things around."

[4]The appellant's case was that there was a verbal argument between himself and his wife; however, at no time did he use any violence on her and he did not know how the cut to her nose was caused.

[5]On arrest the appellant chose not to answer questions, but he made a written statement setting out his version of the events of 9 August. His statement made it clear that he did not accept that he had assaulted his wife in any way, although he accepted that they had been arguing. He ended his statement with the words:

"I love my wife and children and am upset by the whole situation. We have not had an argument as serious as this before."

[6]On 22 December 2010 the complainant made a further witness statement in which she withdrew her allegations of assault. The appellant, she said, had never beaten her, injured her, pulled her hair or thrown things at her. She had only contacted the police because on 9 August the appellant would not stop arguing with her. She was confused. She felt ill and scared when she made her first statement. She could not explain why the interpreter had put down the account she was said to have given in that statement.

[7]When the case came to trial the complainant, who said that she did not speak or read English and whose language was Urdu, asserted that the contents of her written statements to the police in which she had described in detail the circumstances in which she had sustained her injuries, were untrue. She must, she said, have signed blank statement forms. The interpreters who took her statements were suborned by the police to invent the account that appears in them. She had been bullied into making the complaint. Her injuries had, in fact, resulted from her falling when the appellant had touched her shoulder whilst walking past her, causing her to fall.

[8]After conducting a voir dire in respect of which no complaint is made, the judge permitted the prosecution to treat the complainant as a hostile witness and ruled that the prosecution could rely on the original witness statements of the complainant as hearsay evidence. No complaint is made of either finding.

[9]In the course of the trial the jury were provided with all three statements made by the complainant, together with a written statement of the appellant denying that he had assaulted his wife. They were permitted to take all those documents with them when they retired to consider their verdict.

[10]The prosecution case was that the original statements were truthful and accurate and that the complainant had been the victim of a sustained pattern of domestic abuse and violence which she described in the statements and in consequence had been put in fear. She had, asserted the prosecution, falsely tried to withdraw her allegations and to claim oppression and intimidation as an explanation for her withdrawal.

[11]The defence case was that the original statements were false; but in any event, in the light of the complainant's wholly inconsistent accounts at trial it was impossible for the jury to determine where the truth lay.

[12]There was other evidence against which the jury were entitled to consider the evidence of the complainant and the content of the statements she had made. On the day of the incident the police attended the home of the appellant and the complainant in response to a 999 call from the complainant in which she was heard screaming for help. When a police officer attended he noticed damage to the plaster work of the sitting room wall and items of furniture. The complainant was crying and had a bleeding injury to her nose. The interpreters who took the complainant's statement on 9 August did so over a number of hours and read it back to her line by line. In a further statement taken from her on 18 August there were alterations which she had herself initialled. Medical records noted that the complainant alleged that the appellant had caused the injuries during an argument about cutting hair. He had, she said, struck her, dragged her by her hair and punched her in the face. All of this evidence was wholly consistent with the original statement of the complainant being true and wholly inconsistent with her evidence at trial that she had been pressurised, confused or threatened into making the statement.

[13]It is now submitted that the verdict was unsafe. First, it is submitted that the judge should have acceded to a defence submission at the conclusion of the prosecution and withdrawn the case from the jury. The complainant undoubtedly lied. Either the assault had taken place and she lied by denying that; or it had not taken place and her original statement was a lie. In those circumstances, submits Miss Bahra, the trial judge should have removed any danger or chance of a miscarriage of justice by stopping the trial. That ground of appeal was rejected by the single judge but has been renewed before us.

[14]The Crown Prosecution Service has recently issued guidance on charging offences of perverting the course of justice in cases where allegations of domestic violence are retracted. The guidance observes:

"Complainants may sometimes retract a true allegation. They may be subjected to pressure, fear of violence or intimidation. Other factors may include the impact upon children, embarrassment, a fear of going to court, family or community pressure, which may stem from the immediate and extended family, the wider community, and from cultural traditions."

[15]On the evidence adduced by the Crown it was clearly right for the case to be left to the jury, for them to determine whether they were sure that the content of the original statement was truthful, accurate and reliable. The contrary is not arguable. We refuse leave to appeal in respect of the ground.

[16]Second, it is said that it was wrong to permit the jury to have the translations of all the statements made by the complainant when they retired. Such a course would, it is said, have led to them giving the statements, particularly that in which she made the initial allegations, disproportionate weight in their deliberations.

[17]As to this, it is not the usual course, but the statements were provided to the jury without any objection being taken by the defence. They had been referred to in great detail in the course of the evidence. It would undoubtedly have been extremely difficult for the jury to follow the points made by both prosecution and defence in respect of the statements without having them in front of them. The jury would have been seriously disadvantaged without being provided with the witness statements. They had become central to the whole case and evidential not simply for the truth of their contents, but also for the circumstances in which they had come to be made. The credibility of the complainant lay at the heart of this case. The exact terms of the statements and the detail contained in them were all highly relevant. It is difficult to envisage how the jury could have been expected to give considered thought to those statements without having them before them. They had the statements, but they took those statements along with the judge's clear warning about them.

The judge told the jury:

"The mere fact that you have them in written form in front of you, there is no way of avoiding you having them, as you can appreciate, it is not the case that because you have got them in written form they are somehow worth more than evidence from the witness box, so do not place undue weight on that as against any other evidence in the case."

The judge emphasised that in other parts of his summing-up. That was a warning in the clearest possible terms. We are not persuaded that by permitting the jury to have the statements in the way he did, the conviction is in any way rendered unsafe.

[18]The third ground, however, is that the first statement of the complainant contained material (which we have already rehearsed) which made allegations about the conduct of the appellant which did not form part of the indicted offence. There was no application to adduce that evidence by way of the bad character provisions, or even to correct a false impression which it might be thought the appellant had given in the terms in which he made his statement to the police. The allegations were placed before the jury by agreement between the parties. The defence took the forensic view that it would be of positive assistance to the appellant if the jury were to have available to them all the allegations which the complainant had made. It was the foundation for a submission that the jury could not possibly accept the account given by the complainant because surely if all these things had happened she would not have been asked to cut the appellant's hair, still less have the temerity to refuse so to do. It was, submitted the defence, preposterous to suggest that in those circumstances the remainder of her statement was true. Miss Bahra thought it to be to the appellant's advantage for all the content of the statements to be placed before the jury.

[19]The statements were therefore placed before the jury without any objection being taken by the defence. It was the defence case that the police had persuaded the interpreters to invent the whole of the contents of the statements, having either got the complainant to sign blank statement forms, or in some other way to manufacture a wholly false and dishonest account. The defence case was that it was all fiction and all lies. In those circumstances it is understandable that the defence wished the jury to hear about everything that they said were lies in order to judge whether what was being said by the defence might be true.

[20]On behalf of the prosecution Mr Knowles QC, who did not appear at the trial, submits that here, in reality, there was no reasonable possibility that the jury would have been influenced in its verdict by the other allegations of violence which were not charged on the indictment, given the complainant's evidence that nothing she said in her witness statement was true. Once the jury rejected the explanation of the complainant for making the statements, the only rational conclusion they could reach was that the complainant's original account was accurate. If the jury accepted that the complainant's explanation for making the statements was or might be true, then the prejudicial material in the statements did not assist the prosecution at all. It was only if the jury were sure that the statements were not made by way of oppression or in some other inappropriate manner, but in fact were accurate, that the jury could rely upon the account of the incident given by the complainant. Once they did that the other allegations mattered not at all.

[21]This court is concerned that the judge failed to direct the jury about how they should approach the general allegations of violence contained in the complainant's witness statement, or indeed her allegations to the police officer who accompanied her to hospital. The content of the original statement was clearly inadmissible in relation to the trial, absent an application to admit evidence of bad character or agreement between the parties. If, as a result of the way the trial had been conducted, the allegations did go before the jury, as indeed they did, it was important that the jury should be given clear warnings about them. They should have been reminded that the allegations remained just that; there was little, if any, other evidence to support them; that the allegations were denied by the appellant; and that they certainly should not convict the appellant simply on the basis of those allegations. Further, they should have been directed as to the extent to which, if at all, those allegations supported the prosecution case. Such a warning was not given.

[22]However, stepping back from the absence of such a direction, this court is quite satisfied that the conviction remains safe. The evidence was strong. Hearsay it might have been, but the compelling details contained in the complainant's original statement were very much allegations which were worthy of belief, and they were supported by the evidence of the police officers who saw the injury and indeed saw damage in the home.

[23]In the circumstances, whilst we accept that the warning we have identified should have been given, we are not persuaded that the absence of such a warning renders this conviction unsafe. In those circumstances this appeal is dismissed. ________________________________________