Koli, R. v [2012] EWCA Crim 1869

[2012] EWCA Crim 1869Case No 2012/0987/B4
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 3 April 2012
Strand
London, WC2(A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE CALVERT-SMITH
MRS JUSTICE SHARP DBE
Between
R E G I N ACrownv
Between
RAK KOLI
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Hodivala appeared for ApplicantMr W Hughes appeared for Crown
J U D G M E N T

LORD JUSTICE MOSES:

[1]This is an application for leave to appeal against conviction that has been extremely well argued by Mr Hodivala on behalf of the appellant. The issue relates to a conviction before Mr Recorder Fortune for two offences of failing to comply with a Serious Crime Prevention Order. The conviction came on a Friday, Friday 20th January 2012, at Southwark Crown Court.[2]The facts are not particularly material to the issue in the appeal which relates to concern that the jury came under pressure to return verdicts that Friday afternoon. The allegation was that this appellant had in his possession items in breach of an order, the Serious Crime Prevention Order, made on 4th February 2011. It was suggested that he was in possession of mobile telephones, a Think Pad computer and a motorcar without notifying, as the order required him to do, the Serious Organised Crime Agency. The appellant, it is important to record, was convicted of only two out of three counts on the indictment. He was acquitted of one of the allegations.[3]The trial had lasted three days and it is clear that the appellant had the considerable benefit of being defended by Mr Hodivala because, despite substantial evidence of non-notification in relation to all the items in question, he was acquitted on the second count and there was a majority verdict on the first.[4]What is material is what happened on the day that the jury returned their verdicts at Southwark Crown Court. As was the Recorder's wont; they had sat at 9.30 (as they had throughout the trial) and that morning the judge received a note from one of the jurors. It is unnecessary to read it out in full, but it plainly was a matter of serious concern to the Recorder and to counsel both for the prosecution and for the defence. The juror made it clear that she was unable to come back the next week, as she put it:
"I literally can't endure another week."
She then set out, as my Lady, Sharp J pointed out arguendo, every possible reason and (if one is to be unkind) excuse as to why that was so and as to the serious impact on her health as a result of having to try this case and sit on a jury.[5]Sensibly the Recorder notified counsel and there was a discussion that morning as to what he should do. The responsibility was of course his but counsel, Mr Hodivala, made sensible submissions as to the concern there was, should the case go on that afternoon, that the juror would be so concerned for fear it would run into the next week that she would be unable conscientiously and properly in accordance with her duty to consider the verdicts.[6]The judge decided that the case would go on with all 12 of the jurors. In our judgment that was a view that he was entitled to take. The alternative was to discharge that juror, but the judge having regard to the terms of the note was perfectly entitled to take the view that provided the case did not go on beyond that week she would conscientiously consider her verdicts in accordance with the oath that she had taken.[7]The trial continued with the jury being sent out that morning at 11.20 and after lunch further submissions from Mr Hodivala raising concerns as the afternoon went on as to whether the time might come that that juror ought to be discharged and indeed a concern that her anxiety would infect the rest of the jury so that all felt under pressure to return verdicts that afternoon without a fair and adequate consideration of the issues.[8]The time came, at 2.45, when Mr Hodivala submitted on behalf of the defence that come 3.15 or 3.30 the concern that that pressure would infect an honest and fair consideration of the issues would demand the discharge of that juror. The judge did not agree and by 3.50, having considered submissions from counsel, he decided to have the jury back to receive a majority verdict. The jury announced that they had not agreed on count 1 or on count 3, but had agreed a verdict of not guilty on count 2. The judge then said this:
"Members of the jury, if I give you more time this afternoon, is there a realistic prospect that you may or might reach verdicts in respect of the two outstanding counts? May I make it very clear that you are not to be put under any pressure. You must take as much time as you wish to consider all matters with a view to returning verdicts." (our emphasis) The foreman replied: "
Your Honour, we would like to request some more time to carry on considering our verdicts this afternoon." (our emphasis) The jury then retired at 3.56 and at 4.30 the judge invited the jury to return and they returned a verdict by a majority on count 1 of 10 to 2 and a unanimous verdict in relation to failing to notify possession of a motor vehicle in relation to count 3.[9]Mr Hodivala says that in the light of the anxieties of the juror and the time of the afternoon, justice was not seen to be done and the appellant has a reasonable grievance that the pressure of time possibly infected, as the jury might have been by the anxieties of that juror, was such that they did not appear conscientiously to reach their conclusions.[10]We do not agree. Handling a jury is always a difficult task and a matter of fine judgment. A defendant on the one hand is entitled to the consideration of his case by the maximum number of jurors possible, namely 12, and only the most pressing circumstance would justify a reduction in that number of 12. On the other hand, the defendant is entitled to honest and fair consideration of his case by a juror concentrating and focusing on the issues and not distracted by personal problems of their own. It is those considerations that have led the courts frequently in the past to remind trial judges of the importance of making clear to the jury that they must not be under any pressure of time or for that matter anything else to reach their conclusion.[11]This court will not interfere with those judgments by a judge best placed to exercise his assessment of a jury having watched them during the trial unless the conclusion the judge reaches about the action he should take was outwith the range of reasonable conclusion. Our view is that in this case the judge handled this case and this jury in the way that he should have done and there is no basis for criticising his approach in seeing how this jury handled those issues during the course of the afternoon and in making clear to them they were under no pressure and in asking the jury whether they thought that it would be fruitful to consider their verdicts further that afternoon. It is of significance that both the judge and the foreman of the jury referred only to that afternoon. No suggestion was advanced that might have exacerbated the anxiety of that particular juror to suggest that the case would flow into the following Monday. The fact that the jury reached what my Lady described as nuanced verdicts is also further material on which it is possible for this court to rely to show that they did conscientiously consider their verdicts and reached verdicts without any prompting by the time they were sent for at 4.30.[12]For those reasons, this application is refused. (There followed an application for leave to appeal against sentence)

LORD JUSTICE MOSES:

[13]This is an application for leave to appeal against a sentence for breach a Serious Crime Prevention Order made pursuant to section 1 and section 19 of the Serious Crime Act 2007. We grant leave. It is, in the words of Calvert-Smith J during discussions in this case, a ground-breaking case since no prosecution for these breaches has come to our attention before and certainly there are no precedents by which to set the appropriate sentence.[14]The sentence that this appellant received on 15th February 2012 was 24 months' imprisonment for breach of the two counts of which he was found guilty. It is of significance that he fought this case and that he did not plead guilty at all to any of the allegations made against him. The order that was made lasted for five years and in essence required notification of communication devices and notification relating to vehicles and conditions under which they were held. There was, but it is not relevant to this appeal, also restrictions imposed in relation to possession of cash.[15]There can be no doubt that this appellant, who is now aged 36, is an intelligent man and knew perfectly well his obligations to notify the Serious Organised Crime Agency should he have possession, use or control of any more than one mobile telephone handset with one SIM card and one number, one computer and one land line. He was also permitted to hold inactive communication offences.[16]The jury's conviction by a majority on count 1 clearly covered this appellant's failure to notify in relation to at least one, and possibly more than one, mobile telephone handset. It is apparent that in relation to some of the mobile handsets it was not possible to turn them on. The verdict was also apt to cover an IBM Think Pad. Count 3, it is easier to identify to what that related. That was possession and use of a Honda motor vehicle in respect of which he had not given the required notification.[17]There were other aggravating features of those breaches, particularly that this appellant had already got into trouble in relation to his licence by talking to a co-defendant to whom he was not allowed to speak in respect of which he was recalled at an earlier stage of his prison sentence, and also he had clearly been warned of his obligations of notification by his probation officer. The probation officer had been informed of the terms of the proposed Serious Crime Prevention Order and his licence had been altered so as to impose conditions that mirrored the requirements under the order. That forms the basis of one of the submissions advanced by Mr Hodivala.[18]There being no precedent in relation to sentence, the Recorder sensibly required written submissions from both the Crown and the defence. There is broadly agreement as to the appropriate considerations which the court ought to take into account in considering the gravity of the breaches. It must be borne in mind that Parliament has set a maximum of five years' imprisonment in respect of a breach of the order, but the court will have to take into account the lapse of time between the imposition of the original order and the date of the breach. It must take into account any history of non-compliance and the issue as to whether non-compliance has been repeated and has come in the face of warnings and requests for information. It must take into account whether the non-compliance was inadvertent or deliberate. It is of course of particular importance that the court should consider whether the breach was related to the commission of further serious offences and might lead to the conclusion that the failure to comply added to the risk that the particular subject of the order was likely to commit further offences. The court would also have to consider the harm caused by non-compliance for breach.[19]It is in that latter connection that the court will bear in mind that in relation to breaches of other preventative orders that the courts make, those breaches usually have an adverse impact on a particular member of the public or previous victim. Such protective orders are usually designed to protect members of the public who have either previously suffered at the hands of the subject of the order or in respect of whom it is feared they may suffer in the future.[20]In this case, as Mr Hodivala rightly points out, many of those considerations are absent. There is no particular member of the public that the order had in mind or class of public. The judge who originally imposed the order subsequent to passing a three-and-a-half year sentence for money laundering clearly feared that this intelligent man might be tempted to commit further serious offences. But on the particular facts of this case, nothing that this appellant possessed or did in relation to the computer could have formed the basis for showing that that risk was proving to come to pass. On the contrary, most of the breaches appear to have been rather the result of this appellant's failure to take the order seriously and failure to take his obligations seriously. That in reality is the seriousness of these two offences. The attitude that these orders were not serious orders designed to protect the public from the further commission of offences and that the obligations had to be obeyed lest the appellant be punished further.[21]Mr Hodivala submits that no further punishment was warranted. As a result of breaching the licence, in respect of which, as we have said, similar conditions were imposed to those obligations under the order, this appellant's licence was revoked. The effect was that he had to serve his original sentence from the period of 4th June 2011, roughly until the period of his release, there was some technical bail, but in reality up to 17th April 2012, the period of 256 days, the equivalent of a 17 month prison sentence. Since the conditions of the licence mirrored the conditions of the order, so Mr Hodivala submits, that was sufficient punishment and it was unwarranted for the judge to pass a greater than commensurate sentence in breach of section 153(2) of the Criminal Justice Act 2003. We take the view that Mr Hodivala is right when he says that the 24 month sentence passed by the Recorder was manifestly excessive and gives the appearance of being designed to overcome the difficulty that it was not possible for this judge to pass a sentence to run consecutively to the date of his release in April 2012 lest he breached section 265 of the Criminal Justice Act 2003.[22]The correct approach was to have regard to the reality and significance of the breaches in the particular circumstances of this case. We do not think that there is merit in the argument that having been recalled for breach of licence conditions identical to those imposed under the order no further punishment was warranted. The whole point was the necessity, as the original judge saw it, of not merely leaving it to those responsible for the sentence in the Ministry of Justice to decide whether the licence conditions should contain obligations of notification, but that more was required, namely the imposition of the order we have identified. In those circumstances should there, as there was in this case, be a failure to notify the consequences had to be twofold: not only recall, but also punishment.[23]We therefore turn to the appropriate punishment. In considering the appropriate punishment the court had to consider the factors which we have deployed in reaching our conclusion. There was no material to suggest that the breaches concealed some further criminal activity which the order was designed to prevent. Rather, in our judgment, the defendant fell to be punished for flouting those orders and for not taking them sufficiently seriously. In our view, to reflect that gravity, the correct sentence would have been one of 12 months' imprisonment. The effect of that will be that the sentence will run from 15th February 2012 and he will have to spend a few months beyond the date that he would otherwise have been released of 17th April. We have calculated, but this is a matter for the prison and the Ministry of Justice, probably to be about an extra four months or so. But that he should be punished by that extra term of imprisonment seems to us to be the message to be taken from these events.[24]To that limited extent the appeal is allowed and the sentence of 24 months' imprisonment on each count to run concurrently is quashed and substituted by a sentence of 12 months' imprisonment on each of counts 1 and 3 to run concurrently.