Apabhai, R. v [2011] EWCA Crim 917

[2011] EWCA Crim 917

Case No 201000757 D5 / 201000648 D5 / 201000824 D5

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 18 March 2011

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE ELIAS

MR JUSTICE MACKAY

MR JUSTICE HICKINBOTTOM

R E G I N A

HASHIB APABHAI

ESA APABHAI

ADAM AMANI

Computer Aided Transcript of the Stenograph Notes of

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MR C BLAXLAND QC appeared on behalf of Hashib Apabhai

MR G PAYNE appeared on behalf of Esa Apabhai

MR N VALIOS QC appeared on behalf of Amani

MR M PARROY QC and MR J WADDINGTON appeared on behalf of the Crown

J U D G M E N T

Between

ApabhaiDefendant

RCrown

LORD JUSTICE ELIAS:

On

[1]7 and 8 January 2010, in the Crown Court at Southwark before HHJ Higgins, the appellants were unanimously convicted of conspiracy to cheat the Public Revenue on Count 1 and they were sentenced as follows: Hashib Apabhai - total sentence 7 years 6-months; Esa Apabhai - 6 years' imprisonment; Adam Amani - 7 years 6-months' imprisonment. In each case time spent in custody was to count towards sentence.

[2]Hashib Apabhai now appeals against his conviction by leave of the single judge, and both Esa Apabhai and Adam Amani appeal against their sentence. The background to the appeals

[3]The background to these appeals is as follows. The appellant Hashib Apabhai was, as we have said, jointly indicted with Adam Amani and his son, Esa. Two others were acquitted of the money laundering conspiracy and it is not necessary to say anything more about their case. In total some 15 defendants were alleged to have participated in a large VAT Missing Trader Intra Community (MTIC) fraud. It was thought that a single trial of all defendants would be too complex and difficult to handle, so different defendants were tried at different times. This was the third trial.

[4]The conspiracy was investigated by Customs and was described as Operation Euripus. It is really a classic carousel fraud.

[5]The indictments spanned a period from 1 May 2001 to 31 July 2003, but the focus was on the latter period. The case was prosecuted by selecting 529 deal chains and investigating those. The loss to the Revenue amounted to some £11.6 million.

[6]By the conclusion of the evidence, the prosecution accepted that the Operation Euripus fraud had come about following a disruption by Customs of an earlier MTIC fraud, known as Operation Degree. This had culminated in a number of arrests being made on 18 January 2001. Amongst those arrested was Javed Mohammed and Amin Zimbada, although none was ultimately charged with any offence in relation to that particular investigation. Javed Mohammed was alleged to be the principal organiser of the Euripus fraud and it was said that he had recruited others for the purpose of continuing the fraud following his arrest in Operation Degree. He in fact evaded arrest when charges were finally brought in 2007.

[7]The case against Hashib Apabhai was that, along with Amani and his son Esa, he was involved in operating five European companies which were used to export mobile telephones to United Kingdom traders. They then sold on the phones, charging VAT to Customs but, in some cases, failing to account for the VAT to the Revenue. Four of these companies were Spanish and one was Dutch. The proceeds of the fraud were laundered through various accounts in Hong Kong and the United Arab Emirates.

[8]The defendants did not deny that there had been a fraud, what they denied was that they personally were involved in any unlawful activity.

[9]Adam Amani was the director of each of these five companies. He had formally been called Muhammed Novsarka, but he changed his name in November 2001. His original name, however, did feature in many of the documents that were adduced in evidence. When he was arrested in July 2003 he said that at that stage that he had become involved in these companies after a chance meeting at the Trocadero in London with a man called Imran Sheik. He said Sheik had persuaded him to take over the directorship of these companies because he was in difficulty and was unable in law to own the company. This man Sheik was never identified and is thought not to exist. Amani said that he was to be paid between £500 and £1,000 a week. He said he travelled to Spain with Sheik on a number of occasions. Although Amani set up the companies, he did not in fact control the bank accounts and he had no idea that there was a fraud going on.

[10]At that initial stage he said that he thought that Hashib Apabhai was a lawyer. He had travelled with him to Spain on a couple of occasions and helped him do paperwork in relation to the companies. He had also gone with Esa Apabhai, who was his cousin.

[11]The prosecution case was that Hashib Apabhai was controlling both Amani and his son Esa in the operation of the fraud. Various more specific allegations were made with respect to him. It was said that he had used the name Appleton or Appleby, the English equivalent of Apabhai, to effect introductions for Amani at the London branches of two European banks, specifically for the purpose of opening accounts for fraudulent companies; that he had arranged for a payment of £280,000, which originally come from Javed Mohammed, to be paid into the Main Guy bank account in July 2001. The purpose of that was to carry out an unlawful transaction - although he said he did not appreciate it was unlawful - to transfer this money to a man of straw who could, if necessary, provide surety for Javed Mohammed in the event that he was granted bail. He had accompanied Amani and Esa to Hong Kong in July 2002 and, whilst they were there, various payment instructions in relation to the operation of the fraud were made from one of the hotel rooms where they were staying, and indeed a substantial quantity of the money obtained by this fraud was laundered through Hong Kong banks into accounts in the names of, amongst others, Javed Mohammed. He accompanied Amani to Cyprus to set up an account at the Federal Bank of the Middle East for International Commodity Brokers. This was in the name of a company which he had set up and of which his son was a director. He had personally received sums in excess of £300,000 from the bank accounts of the fraudulent companies. When it was found that the £280,000 allocated as a potential surety was not required, it was transferred into one of the companies under the control of this appellant.

[12]Various files recovered from the memory of his computer at his office and his home address indicated that on a number of occasions various documents had been used to create fraudulent transactions. The prosecution case was that he was responsible for these letters; that they bore the characteristics of his somewhat florid style. Other identification marks such as a capital Y and capital S for "yours sincerely" further confirmed that, whatever name was used on the letter, it was in fact this appellant who was behind these documents. It is pertinent to note that he denied being involved in sending any of these letters and, by inference, he was necessarily saying that it must have been either Amani or his son who were responsible for sending them.

[13]The appellant claimed, when interviewed, that he had been a successful businessman during the 1990s but had encountered financial difficulties following the acrimonious break up of his marriage in 1997. He set up a business as a consultant representative under the name of King's Chambers, working from his home. He said he had been approached initially by an old friend, Ebrahim Sodha, who advised Amine Zimbada and, thereafter, he had been assisting Javed Mohammed, firstly in the preparation of his case, and then in relation to other business activities. He said Amani had become a client of King's Chambers when he wanted help with business arrangements for companies with which he had been involved. He acted as a representative for these persons. There was evidence that he had represented himself as being a barrister in some quarters, although he did not have any legal qualifications.

[14]He did accept that he had made certain appointments with various banks to put Amani in touch with officials in those banks, and also he had put Amani in touch with certain company formation agents. He thought that Amani had gone into business trading in electronic goods. He did not know that there was any fraud involved.

[15]When further interviewed on 15 June 2004, he submitted a prepared statement but did not answer questions. He said that there was a file in his office of his home address, which was described as the Novsarka file, which identified the various transactions he carried on on behalf of Amani and would have proved his innocence. He said that the police had taken the file away and, I think at various stages he said either they had deliberately lost it or they had negligently lost it, and that it was making it very difficult for him to prove his innocence.

[16]In his defence statement, although he did not expressly blame Amani, he had asserted that, since the arrest in July 2003, Amani had set up a number of different companies with Esa Apabhai and he contended that there was a close business relationship between the two.

[17]Circumstances giving rise to grounds of appeal.

[18]We turn to the circumstances which gave rise to the grounds of appeal. Before the cross-examination of Amani on the appellant's behalf, an application was made under section 101(1)(e) of the Criminal Justice Act 2003 to cross-examine him about certain of his previous criminal convictions. No notice had been served in advance, because the direct attack from Amani upon his character was mounted for the first time during the trial, although, as we have said, it was certainly clear that this must have been a distinct possibility. Amani had old convictions for offences of dishonesty, and convictions in 1986 for two counts of arson which had resulted in a sentence of 4 years' imprisonment.

[19]The judge accepted that "it would be difficult to imagine evidence more damaging to Mr Apabhai than that which was advanced by Mr Amani" and therefore he accepted that the gateway for admissibility of the dishonesty convictions had been met. In fact, the convictions were relatively old and, we were told today by Mr Blaxland QC, counsel for the appellant, that they were not put in before the jury. There were other drugs offences which it was not said ought to be put before the jury. As to the arson offences, the judge said that he did not have sufficient details to determine whether or not the jury ought to be made aware of those convictions. The prosecution undertook to seek to search the records and further information about them. They drew a blank and they were left with no information about these offences.

[20]Accordingly,

the judge ruled on the point as follows:

"The difficulty arises in respect of the offences of arson. They are also old, going back to 1986 and, because of that, the Crown have been unable to provide the court with any evidence of the circumstances of the offences, including Mr Amani's pleas. To that extent, therefore, the court is faced with an evidential void. In this regard Mr Amani, perhaps understandably, declines to comment and, whilst, through his counsel, Mr Apabhai says, by way of hearsay -- I know not how many times removed -- that it relates to an insurance claim, I regard as axiomatic the caution with which the court would have to approach the comments of any party in circumstances such as these. Furthermore, I do not think that the evidence currently before the court in relation to the trial itself could properly form the foundation for relevant inferences to be drawn based upon reliable circumstantial evidence. At best, it would be speculation, in which the court may not indulge. Thus, the evidential void remains. In those circumstances, I do not he see how the court could ever properly come to the conclusion that the convictions for arson had substantial probative value and therefore fall within section 101(1)(e). The wording of section 101 is such that those convictions therefore become inadmissible."

[21]In the course of cross-examining Mr Apabhai, Mr Amani indicated that the appellant had caused him to lose a significant sum of money, apparently a sum of some £125,000, when Amani had remortgaged his house and transferred the money, it was said, to the appellant. Amani commented that his life was wrecked because of what happened with Apabhai. He also said that:

"Up to last week he was still telling me what to say; don't say nothing."

Mr Blaxland, in view of this answer, wished to ask questions about an incident that had occurred on 23 August 2009, that is a month before the trial began. The gist of the incident can be summarised from the following statement, which is part of a larger statement which was made by the appellant to the police on 25 August:

"The allegation made by him was that, on 23 August, at one of the mosques in Coventry, Mr Amani approached my client and said 'Customs have offered me a deal, seeing them in nine days. See you outside'. Matters then adjourned to the car park outside and Mr Amani, according to Mr Apabhai, then said 'Customs have offered me a deal. I am meeting them in nine days time. They want me to change all my statements and pin everything on you. You have got seven days to pay me £125,000 cash. Remember, your son is in my hand.'"

Then Mr Apabhai, in his statement, says he effectively rebuffed the advance and Mr Amani finished by saying:

"Seven days, remember, or I go further"

. That was the incident which caused Mr Apabhai to go to the police. It is not suggested that the alleged deal with Customs actually took place.

[22]Mr Blaxland contended before the judge that this was not evidence of bad character as defined in the Criminal Justice Act 2003 and that, therefore, it was necessarily admissible without the leave of the court since it was relevant evidence. It was not necessary that it should pass through any of the gateways for the admission of bad character in the 2003 Act. The judge ruled at that stage:

"I am not persuaded (a) it falls within section 98, nor (b) without further submission that it falls properly within any of the relevant provisions to the Criminal Justice Act"

. Cross-examination then continued without reference to the incident.

[23]It is not entirely clear why it would not be admissible if it fell outside both those categories but, in any event, that was not a matter that was explored at that time with the judge and, no doubt, everybody wanted to get on with the trial. But the matter was revisited the following day in argument. This time Mr Blaxland successfully persuaded the judge that the evidence of blackmail did indeed fall within the provisions of section 98(b) but the judge went on to hold that, either exercising the court's statutory power to exclude evidence under section 78 of PACE, or by reason of a common law principle, he would not admit the evidence. He considered that its probative value was outweighed by its prejudicial effect and, furthermore, it raised the prospect of satellite issues in which the question of whether this had actually occurred, as alleged, would have to be investigated. The precise words used by the judge were these: "Moreover, I am in no doubt but that those powers, under section 78 or otherwise, should be exercised in favour of Mr Amani. If I may use the common law expression, the prejudicial effect far outweighs the probative values, it seems to me. The police were investigating but no charges had been brought and, as it were, were sufficient under the day. This also avoids the great difficulties associated with satellite litigation and the distraction of the jury from the matters in hand which, I may add, do not depend exclusively or mainly on the evidence of Mr Amani".

[24]The matter was then raised for a third time when the appellant gave evidence. The gist of it was that he played no part in the operation of any lawful activity; that Javed Mohammed and Adam Amani were his clients and that he provided them with assistance. He sought to explain the various trips to Hong Kong and the payment of the £280,000, which he had not appreciated involved any unlawful activity. The trips he thought were for legitimate reasons; the trip to Hong Kong was because Mr Amani wanted to investigate the possibility of trading in fabrics. He also raised the question of the missing Novsarka file. It was put to him that he was saying to Mr Amani, even shortly before the trial, words to the effect "don't worry, I will take care of you, just rely on missing Novsarka file".

[25]Mr Blaxland, at that point, raised the question of the blackmail incident again, because he wanted his client to be in a position to be able to say that there would have been no discussion of that kind between the appellants and Mr Amani very closely before the trial. By then, he had made a complaint about Mr Amani to the police over the blackmail incident, so they were not on good speaking terms. So the judge did revisit the matter but he came to the same conclusion. The grounds of appeal.

[26]The grounds of appeal are directed towards the rulings of the judge in relation to the blackmail evidence and in relation to the refusal to allow the arson convictions to go before the jury.

[27]The blackmail incident

[28]The first ground is that the judge was wrong to refuse to allow counsel for Mr Apabhai to question Amani about the blackmail incident. The first issue arising here is whether, as the judge found, section 98(b) is engaged at all. The prosecution contend that it was not and that if the evidence was to be admitted at all it had to be pursuant to section 101(1)(e) of the Criminal Justice Act 2003. Section 98 is in the following terms:

"References in this chapter to evidence of a person's bad character are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence"

. The 2003 Act does not provide that evidence falling within sections 98(a) and (b) is automatically rendered admissible simply as a result of falling within those provisions. Whether it is admissible depends on the common law rules. Section 99 abolishes the common law rules governing the admissibility of evidence of bad character but, by section 112, bad character is to be construed in accordance with section 98. The effect, therefore, is that common law rules are only abolished in circumstances where the evidence which it is sought to adduce is bad character as defined by section 98. Accordingly, if the evidence relied on falls within either section 98(a) or (b) then the common law rules are not abolished and continue to operate. Evidence falling within section 98(b) is therefore admissible if it would be admitted at common law.

[29]It is common ground that, since there was evidence in this case which one accused wished to adduce with respect to a co-accused, the judge was wrong to say that he had any discretion to exclude the material, provided at least that it was relevant. There is no such discretion under section 78 of PACE, because that applies only to evidence on which the prosecution proposes to rely. Nor is there any other residual common law principle which would allow the judge to refuse to admit the evidence. This has been confirmed in a number of authorities including the decision of the House of Lords in R v Randall

[2003] UKHL 69

where Lord Steyn, giving a speech with which the remainder of their Lordships concurred, said:

[30]“… the discretionary power to exclude relevant evidence which is tendered by the prosecution, if its prejudicial effect outweighs its probative value, does not apply to the position as between co-accused. In a joint criminal trial a judge has no discretionary power at the request of one accused to exclude relevant evidence tending to support the defence of another accused: see R v Miller, supra, at 171; R v Neale

(1977) 65 Cr App R 304

, at 306; Lobban v The Queen, supra, at 887B-889D. In R v Rafiq

[2005] EWCA Crim 1423

para.

(e) of the Criminal Justice Act 2003, which provides as follows:

"In criminal proceedings, evidence of a defendant's bad character is admissible if, but only if ...(e) it has substantial probative value in relation to an important matter in issue between the defendant and co-defendant"

. Provided it has substantial probative value in relation to an important matter in issue, the judge has no residual discretion to exclude it: see R v Edwards and Rowlands

[2006] 2 Cr App R 4

, para. 26 per Scott Baker LJ.

[31]Section 104 further defines what may be a matter in issue between the defendant and the co-defendant, and it will include whether the defendant has a propensity to be untruthful, provided certain conditions are met, which they were in this case. In practice if the bad character evidence would be relevant and admissible if it fell under section 98(b)- and it is almost bound to be relevant if it falls within that provision - then it is highly likely to be admissible under gateway (e) if it is properly characterised as bad character evidence falling outside section 98(b). However, we heard argument about which provision was applicable here, and we shall deal with it. Did section 98(b) apply?

[32]The prosecution say that the evidence falls outside section 98(b) and that it should appropriately have been treated as bad character evidence falling within section 101(1)(e). They contend that the purpose of section 98(b) is to deal with cases where there is misconduct by the prosecuting authorities and not by a witness or a defendant. In particular, Mr Parroy QC, counsel for the Crown, put emphasis on the fact that it is only misconduct in connection with the investigation or prosecution of the offence. He submitted that those words “in connection with” plainly included conduct by the authorities, such as where it is alleged that the police have fabricated evidence, but were not appropriate to describe the kind of allegation relied on in this case.

[33]He relies on the decision of this court in the case of Scott

[2009] EWCA Crim 2457

. In that case the defendant was convicted of rape. He sought to adduce evidence that the complainant had harassed a witness who was giving evidence on his behalf in an effort to get her to support the prosecution case. The evidence was that the complainant had made attempts to talk to that witness on more than one occasion so that, as the witness put it, she could "hear the complainant's side of the story". The defendant submitted that the evidence fell within the scope of section 98, either (a) or (b), and therefore could be admitted without the leave the court. The judge disagreed. He held that the evidence was bad character evidence relating to a non-defendant which did constitute evidence in relation to an issue in proceedings, but that it ought not to be admitted because it did not have substantial probative value. The Court of Appeal agreed with the judge on this particular point. At paragraph 38 Aikens LJ, giving the judgment of the court (Aikens LJ, Penry Davey J and Sharpe J DBE) said this, after referring to the particular allegations and concluding that they did not fall within section 98(a): "We have concluded that they are also not evidence of misconduct in connection with the investigation or prosecution of the offences of which the appellant was charged, and so not within section 98(b). We accept of course that the events to which Miss Haydon Smith's statement refers all occurred during the time when the investigation and the prosecution of the offences was taking place, but that temporal connection is, in our view, not enough to come within the wording of section 98(b). The misconduct has to have some closer link with the actual investigation of the offences, or with their actual prosecution. On the facts set out in the statement, there is no such connection. Therefore, the admission of the evidence ... is governed by the statutory regime of the 2003 Act".

[34]Mr Parroy emphasises the fact that the court there focused on the "actual investigation” and the “actual prosecution". He submits, in essence, that the alleged misconduct here did not fall into that category; it was too remote.

[35]Mr Blaxland submits that this is too narrow a construction of the section and was not warranted by the statutory language. He submits that the purpose of the bad character provisions in the 2003 Act is to deal with evidence of bad character which is collateral to the facts and circumstances of the case; it is not to deal with evidence which is inextricably linked to the facts and circumstances of the case or the processes leading to a verdict. Here, the alleged blackmail incident was linked with the prosecution of the offence since it was a threat to give false evidence unless the payment was made. It was also relevant for a number of reasons. First, the fact that the appellant made a complaint to the police in relation to the alleged misconduct provided an obvious motive for why Amani would want to place the blame for any criminal activities on the appellant; second, it went to the likelihood that the appellant would have been assuring Amani right up to trial that matters would be satisfactorily sorted out; third, it suggests that the appellant and Amani were not jointly involved in any criminal enterprise, since it would be very unlikely that, in such circumstances, the employee would complain to the police about a co-accused. That would be unnecessarily to goad Amani. The case of Scott did not assist, because the evidence being relied upon in that case was bad character evidence as a collateral matter. It was not linked in any significant way to the factual matrix of the case or the circumstances of the prosecution.

[36]In our view the judge was entitled to find that the evidence did fall within the scope of section 98(b). It can be said that the evidence is “connected with” the prosecution or investigation of the offence. Scott did not say that only conduct by the prosecuting authorities could fall within the provision, and we do not think that the section should be so construed. There is no doubt that, prior to the 2003 Act, evidence of intimidation or blackmail by a co-accused would be admitted, notwithstanding that it might reveal bad character of, and perhaps criminal conduct by, that defendant. The evidence in this case was not sought to be admitted specifically because it was evidence of bad character, raising in a general way issues of credibility or propensity, but because in the particular context surrounding the alleged misconduct, and in particular the fact that the appellant then went to the police to complain about the conduct, it casts light in a more immediate way on particular aspects of the case as being presented to the jury and, in particular, the reliability of the evidence of Mr Amani. The fact that the evidence demonstrates bad character is not the central feature justifying its admission. Its principal purpose is to demonstrate a motive for Amani putting the appellant in the frame, and the fact that the evidence also demonstrates bad character is incidental. For example, there may be a case where a co-defendant is alleged to bear a grudge because of some slight, real or imagined, from the defendant and this is said to explain why he is lying about the defendant. Such evidence would surely be admissible even though it does not disclose bad character by the co-defendant. It would be strange if the effect of the 2003 Act, which was intended to allow evidence of bad character to be admitted more readily than had formerly been the case, was to restrict the admissibility of bad character in these circumstances unless it was able to pass through gateway (e).

[37]Mr Blaxland also trailed an argument for the first time in this court that the evidence, in any event, fell within section 98(a). Suffice it to say that we are not persuaded by that submission but we did not hear full argument about it, and since we considered that it fell within the terms of subsection (b) it is not necessary to reach a concluded view about it. Did gateway (e) apply?

[38]However, even if we are wrong about the evidence being capable of falling within section 98(b), then the question arises whether it falls within the terms of section 101(e). Mr Parroy submits that it will not. It was not evidence as such at all. All the appellant was doing was making an assertion of bad character. Mr Parroy relied on the case of Hussein

[2008] EWCA Crim 1117

, and in particular paragraph 13 of the judgment of Hughes LJ, to the effect that a mere charge, unproved, could not be evidence of bad character, still less could it be bad character itself.

[39]We accept that a mere assertion cannot be evidence of bad character, but we agree with Mr Blaxland that that is not the situation here. Mr Apabhai is not simply asserting; he also indicated, at least by inference, that he was willing to give evidence about this particular incident. Indeed, he said there were witnesses to the incident. Whether they might have been called or not had this evidence been allowed to be adduced, we are not in a position to say. R v Tirnaveanu

[2007] EWCA Crim 1239

supports Mr Blaxland’s submission. Thomas LJ, giving the judgment of the court, said this at paragraph 19:

[40]"There may initially have been some doubt as to whether an allegation of misconduct, untested by a judicial finding, is in the provisions. But it is clear from decisions in this court in R v Fish

[2005] EWCA Crim 813

, [2006] 1 Crim App R 3 paragraphs 71 to 77, R v Weir

[2005] EWCA Crim 2066

, [2006] 1 Crim App R 19 at paragraph 94, R v Edwards and Rowland

[2006] EWCA Crim 3244

, [2006] 2 Crim App R 4 at paragraphs 77 to 81, and R v Lesley

[2006] EWCA Crim 2150

at paragraph 51, evidence that alleges the commission of an offence or other reprehensible behaviour is within the scope and definition of misconduct. It seems to us that that is the position here.”

[41]Mr Parroy also submits that in any event even if it constitutes evidence it was not substantially probative. He submitted that the judge was entitled to take the view that in the context of the evidence as a whole, it did not take matters very much further and that, as a mere assertion, it did not prove anything. But since we have rejected the submission that it was a pure assertion that, in our view, undermines his submission that it is not of substantial probative value.

[42]We agree with the observations of this court in the case of Scott at paragraph 45 that, in this context, "the word substantial must mean that the evidence concerned has something more than trivial probative value". In our judgment, if the appellant had been able to convince the jury that this incident had taken place, then we think it would have been of more than trivial probative value. One might test it by asking what would be the position if it were the only way in which the appellant might be able to show some motive for Mr Amani telling lies. It seems to us that it would plainly, in those circumstances, be of substantial probative value.

[43]Accordingly, even if the evidence did fall under section 101(1)(e) rather than section 98(b)as the judge held, we are still satisfied that it ought to have been admitted.

[44]We do have sympathy with the judge's observation that there is a danger that allowing evidence of this kind will give rise to satellite litigation and distract the jury and take their eye off the ball. But it seems to us that, as the rules currently operate, this is not a basis for excluding evidence of bad character when relied on by one accused against another, however desirable it may be to have a rule of that nature.

[45]Is the verdict unsafe.

[46]That leaves the issue whether the verdict is unsafe. Mr Blaxland reminds us that, in circumstances like this, where there is a procedural error, a failure to admit evidence of this kind, we must be satisfied that there has been no injustice done to this appellant before we can properly uphold the conviction, and we must of course assess that by looking at the case as a whole.

[47]We are satisfied in this case that the verdict is safe. The principal significance of this evidence was that it provided a motive why Amani might want to frame the appellant, but it is patently clear that he had obvious motives quite independently of this. As the judge observed, there were essentially cut-throat defences from a relatively early stage. In fairness, Mr Blaxland effectively admitted that once the parties had accepted that there had been a fraud, and once it was shown that the documents emanating from the hard drive of the appellant's disk at his home address involved the communication of various documents involved in the fraud, and once he was denying any involvement himself in these matters, he was essentially, and necessarily, saying that it had to be both or one of his son and Amani. He may not have said that in terms, but that was the gist of his case.

[48]He had been asserting that the Novsarka file would provide him with a full defence to these charges, because they would demonstrate that his involvement with Mr Amani was an innocent involvement. He was contending that from the beginning and we accept the observations of Mr Parroy that it was essentially a lynch-pin of his case. The jury would have recognised that there was every reason why Amani would want to lay the blame on the appellant. There was an additional reason, again as Mr Blaxland frankly admitted, which was to the effect that, even before the incident relied upon, it was plain that Mr Amani had been extremely upset by the loss of £125,000 in relation to the mortgage and was laying the blame for that at the door of Mr Apabhai. That, again, was something which could well have caused him to wish to misrepresent the true facts and to try and pass the blame from himself to the appellant. All these matters the jury would have had very firmly in mind. We simply do not accept that this additional reason, which in fact is in any event very closely linked to the loss of the mortgage money, would have added any significant additional motive.

[49]Mr Blaxland says that the change of story by Amani at the trial wholly altered the dynamics of the case, and that this was the obvious explanation for that. It was far more important, he says, than any of the other motives. But the desire of Amani to save his own skin is the obvious and most powerful motive, and that had been there for some considerable time.

[50]Mr Blaxland also submits that it is inconsistent with the appellant being involved in any conspiracy that he would go to the police in this way. He would not want to alienate Amani. But that is not so if he already anticipated that Amani may well wish to give evidence against him, because they were effectively running horses that could not run in harness.

[51]Accordingly we do not accept that there is any significance, in the sense of any real prejudice to this defendant, as a result of this evidence not being admitted.

[52]We should add, but we will not go into the evidence in detail, that we are satisfied that, even if one looks at the substantive evidence, and even accepting the important point which Mr Blaxland properly and forcefully makes that it was circumstantial, nevertheless the circumstantial evidence demonstrating the guilt of the appellant was extremely strong. We are not going to rehearse it all again; he is going on these trips to countries where various monies were laundered; the incriminating documents found on his hard drive; his involvement in the creation of these companies; his involvement with Mr Muhammed; his unlawful involvement with the £280,000. He of course had explanations for each one of these which was entirely consistent with the prosecution case that he was at great pains to distance himself from anything that might be able to be tracked back to him.

[53]However, this is a supporting rather than the central basis on which we find that this conviction is in any event safe. It is, as we say, because we do not think that the evidence which would have been adduced would have, in any material way, altered the way in which the jury would assess the evidence before them. But it is an additional consideration that the evidence seems to us to have been, in truth, overwhelming at the end of the day. The arson convictions.

[54]We deal only briefly with the second ground concerning the refusal by the judge to permit the evidence of the arson offences to be adduced before the jury. Mr Blaxland did not, for very good reason in our view, pursue this with any great enthusiasm. His case is that it is a reasonable inference that, because a 4 year sentence is imposed for arson, then the likelihood is that it was either an act of retribution or, alternatively, it supported the hearsay evidence, however many times removed, that Amani had been involved in an attempt to commit an insurance fraud. The judge, quite rightly in our view, was not prepared to admit the evidence on that basis. It would have been wrong for him to do so. Mr Blaxland accepted that without the inference he was seeking as to the circumstances of these convictions, they were not admissible. They were a long time ago and did not go to credit and nor, absent the inference, were they relevant to propensity. We would add that even if they had been relevant to propensity, helping to demonstrate that Amani was somebody who would involve himself in fraudulent activities, it is difficult to see how that would have assisted the appellant's case, since the prosecution were submitting that they were both deeply involved in this conspiracy. It does not greatly assist the appellant to show that Amani had a propensity to be involved.

[55]The appellant is saying that the judge ought to have been willing to speculate as to the circumstances of the offence, and to find that they were committed in the way prejudicial to the defendant in the absence of any evidence to that effect, and to allow the jury to take into consideration that speculative evidence. Plainly he should not have done that and he did not do that. That ground of appeal fails also.

[56]Sentence.

[57]We turn to the question of sentence. The judge, in passing sentence, recognised that he had to have regard to sentences in other related trials. He indicated that the principal features which would determine sentence would be the particular defendant's position within the criminal hierarchy, his criminal profit, if known, and the loss to the Revenue, and he would have regard to personal mitigation. He then said this:

"The determination of the part which each of you played must therefore depend upon the balance of the evidence in the application thereto of common sense. Approached in this way, it is plain to me that all three of you were far more than mere functionaries and that the actual names on the documents had little or no significance in this regard. Who did what at any given moment would have been a matter of experience, convenience, or even occasionally caprice. Quite simply, you were all in it together and you played your due part in both organising and executing the fraud. What you actually did from day to day and from time to time was merely dictated by the needs of the moment. The precise way in which originally you were recruited and by whom the initiative was taken matters not, because it is very clear that once you were involved, which would be by the beginning of 2001 at the latest, you performed whatever task was necessary, whether or not individually you were more or less cautious in what you did and how you did it"

. He then said this, specifically with respect to Esa Apabhai:

"As to you, Esa Apabhai, much the same is true, save for this. You were relatively young at the time, so 21 years old, and you were conspiring with men with 20 years your senior, one of whom was described as a father figure and the other of whom was your actual father. A worse example for them both to set it is difficult to imagine"

. He noted that the Amani had had a criminal record, but he lacked detailed information and it was some time ago so he did not take that into account against him. He noted the good characters of the other two defendants and he gave a 17 per cent reduction because of the delay between the end of the conspiracy and the date of trial. That is how he arrived at the sentences he did.

[58]We have heard submissions from counsel for Mr Amani, Mr Valios QC, and for Mr Esa Apabhai, Mr Payne. We take Mr Amani first. Mr Valios makes a powerful submission, essentially along the following lines. He has demonstrated, no doubt perfectly accurately, that the prosecution when opening this case were placing Amani lower in the hierarchy than the appellant Hashib Apabhai, and they were suggesting that effectively the two younger men were acting at all times under his influence and control and that he was dictating matters. In the circumstances, he submits that it was wrong for the judge to take a different view of the particular role of these individuals on the basis of his assessment.

[59]We can quite see why an individual defendant may be disappointed if he finds the judge takes a different view from the prosecuting counsel in circumstances which are to his detriment, but we do not accept that the judge was precluded from doing that. The judge must form his own view of the facts, even if that differs from the prosecution, as a wealth of authorities confirm. We cite by way of example some observations of this Court in the recent case, Castillo

[2010] EWCA Crim 658

, where, after referring to certain passages from the judgment of Beldam J in Soloman and Triumph [1984] 6 Crim App R (S) 120 and Cloud [2001] 2 Crim App R (S) 97. Griffith Williams J, giving the judgment of the court, (which included the Lord Chief Justice and Collins J) said this at paragraph 22: "The trial judge is not bound to accept the view of the prosecution, just as he is not bound to accept the view of the defence. In criminal trials it is not unusual for the culpability of a defendant to be markedly different in the light of all the evidence. In some cases that works to the positive advantage of a defendant. In other case it does not. As a matter of public policy, when it comes to sentencing, the public duty of the judge is to pass the appropriate sentence, that is a sentence which reflects the culpability of the offending. When it comes to the assessment of a defendant's culpability, the trial judge is best placed to make the necessary findings of fact. Absent evidence that he or she has misdirected himself or herself, and/or reached a conclusion of fact which was unreasonable, this court will not interfere".

[60]It is not submitted that the conclusion was unreasonable for any reason other than that it does not follow the analysis of prosecuting counsel. We recognise that it was not merely in prosecuting counsel's opening, but also in his closing submissions that he was placing responsibility for the conspiracy more fully on the appellant Hashib Apabhai. Nonetheless, this was a case where the trial had taken place over 3-months, and it was tried by a very experienced judge who, it has to be said, produced a model summing up, and was in the best position to assess not only the relative sentences that should be given with respect to these three defendants, but also how they fitted into the wider conspiracy which he was trying.

[61]Mr Valios put his submissions attractively and succinctly but, for the reasons we have given, we reject them and we are not prepared to interfere with that sentence.

[62]The submission on behalf of Mr Esa Apabhai was, in part, to the same effect and, for the reasons we have given, we reject that aspect of the appeal. But his appeal also focused on certain further matters. The focus was placed on the observations of the judge, which we have read out, to the effect that this appellant was effectively led by his father and Amani, who he treated as father figures. The submission is that that is plainly correct but that the judge did not reflect that factor sufficiently in reducing the sentence by only 20 per cent. Furthermore, certain personal factors were urged, namely age - although, as we have indicated, that was a factor the judge took into account - and the fact that this appellant had an appalling childhood and was very much under the sway of his father. Again, the submission was put succinctly and attractively, but we do not accede to it. It is no doubt true that other judges may have allowed a little more for the difference in age and the influence that the father may have had over the son. But the question of appropriate differentials in cases of this kind is often a difficult one for a trial judge and we have made the point that this trial judge was best placed to deal with it. In so far as this submission has any force at all, it is, it seems to us, whether sufficient allowance was made for his age. Again, we accept that other judges may have made the differential greater, but we have concluded that we cannot say that the judge was manifestly wrong not to reflect the age difference by a lower sentence for this appellant. We see little of weight in the other submissions.

[63]We have also borne in mind that counsel referred us to some of the sentences in the related trials but, in truth, we can get very little benefit from those, because we are simply not in a position to know what the particular circumstances were of the comparators on whom he is relying.

[64]Accordingly, those appeals fail.

[65]Can I thank everyone and apologise it is so late.

[66]MR VALIOS: My Lord, can I raise one matter. I feel I am in somewhat of a invidious position in a sense, because legal aid was granted for junior counsel only. He could not be here today and I was going to do this appeal on a pro bono basis in anticipation that he would be here. He is not, but I settled the grounds and advice. Now, I am somewhat concerned in that situation as to what I do in relation to any claim for the costs thereof. That is why I say I feel I am in a rather embarrassing and invidious position in raising this matter with your Lordships, but I know of no other way of dealing with this.

LORD JUSTICE ELIAS: You mean legal aid was granted for junior counsel and junior counsel is not going to require the legal aid because he is not here and has not done anything?

[68]MR VALIOS: I think that is right.

LORD JUSTICE ELIAS: Well, I would have thought it was appropriate that you should be given -- I fear it probably has to be legal aid of junior counsel's fees.

[70]MR VALIOS: I suspect it would be.

LORD JUSTICE ELIAS: I do not think we can properly do more than that, but it seems to me that is an appropriate thing to do. You properly raise it and we are willing to grant legal aid to this counsel in substitution for the junior counsel who could not be here.

[72]MR VALIOS: My Lord, I am grateful.