Ibbtsam Ul Hamid, R v [2016] EWCA Crim 449

No. 2014/05494/B1 & 2014/05704/B1

[2016] EWCA Crim 449

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday 17 th March 2016

The Strand

London

WC2A 2LL

B e f o r e

LORD JUSTICE DAVIS

MR JUSTICE TURNER

and

MRS JUSTICE ELISABETH LAING

Between

R E G I N ACrown

- v -

Between

IBBTSAM UL HAMID

GULBAR KHAN

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Mr J Walker appeared for Appellant Ibbtsam Ul Hamid

Mr C Jutla appeared for Appellant Gulbar Khan

Mr A Wheeler appeared for Crown

J U D G M E N T

Thursday 17 th March 2016

[1]These are appeals based on what is said to be an irregularity in the verdicts delivered by the foreman of the jury. In the present case, and before any majority verdict direction had been given, the foreman had delivered verdicts and had stated that they were verdicts of all the jury. By those verdicts the jury, ostensibly unanimously, convicted the two appellants and also one other co-accused, and acquitted two other co-accused.

[2]Around half an hour or so thereafter, and after the jury had been discharged, certain jurors sent in a joint note to the trial judge suggesting that the jury had not, in fact, all been in agreement about the guilt of the appellants.

[3]The question which arises is whether the verdicts have been rendered unsafe by what is now asserted to have been a material irregularity. Indeed, it is said that the verdicts were not valid verdicts at all.

[4]As a consequence of this matter being raised, a constitution of this court on a previous occasion directed that certain questions in agreed form be put, using the services of the Criminal Cases Review Commission, to all the members of the jury. We will come on to explain what has eventuated in the light of that.

The Background Facts

[5]In view of the nature of this appeal, the background facts need only the briefest summary. The Crown's overall case was that there had been a conspiracy to cheat the Revenue by use of dishonestly established and operated limited companies, registered for VAT purposes, whereby false claims were prepared and submitted for repayment of VAT allegedly due. The first appellant (the first defendant on the indictment) was an accountant who controlled a company called Accountability Management Services Limited. The second appellant (the fifth defendant on the indictment) was a director for a period of time of two companies: GK Office Solutions Limited and DPP Computer Services Limited. All three companies were involved in the alleged conspiracy, along with many other companies. Essentially, the alleged fraud involved wholly fictitious claims for VAT repayment, backed by bogus invoices.

[6]The first appellant's defence, in essence, was that, in his capacity as an accountant, he had acted in good faith, in accordance with his instructions and professional duties. The position of the second appellant and also of the other co-accused was, in effect, that they too had acted in good faith and that they had been duped by others whom they had trusted.

The Proceedings at Trial

[7]The jury were sworn on 2nd September 2014 at the Birmingham Crown Court and then released. Thereafter, a number of legal matters were addressed and, as we gather, a number of guilty pleas by various of those said to be involved in the conspiracy were tendered.

[8]On 16th September 2014 the trial commenced against the two appellants and the other three co-accused. At the outset of the trial the judge, His Honour Judge Michael Chambers QC, gave conventional opening remarks to the jury, including an invitation to them to send to him a written note about any matters that might concern them at any stage of the trial.

[9]The trial having proceeded, there were a number of occasions when the jury did send notes to the trial judge relating to a variety of matters. Some notes concerned the seemingly strange behaviour of one of the jurors who ultimately was discharged.

[10]After the evidence had concluded, the judge commenced a detailed and careful summing-up. He started his summing-up on Wednesday 22nd October 2014. He had taken the trouble to put all his legal directions into writing after discussion with counsel. Those written legal directions were distributed to the jury in due course. The closing written legal direction, which was repeated at the end of the summing-up, as orally delivered, related to the need for unanimity. As to that, the judge said this:

"Then if finally I could take you to the written directions, there are the final directions I need to give you, if you have got those. It is this, that you should strive if you can to reach verdicts upon which you are all agreed, in other words unanimous verdicts. As you may know, the law permits me in certain circumstances to accept a verdict which is not the verdict of you all. Those circumstances have not arisen, and they may never arise. So when you retire I must ask you to reach verdicts upon which each one of you is agreed. However, if the time comes when it is possible for me to accept a majority verdict I will give you a further direction. But when you retire now you should put all thoughts of majority verdicts out of your mind and strive if you can to reach verdicts upon which you are all agreed."

[11]That oral direction reflected precisely the written legal direction in this regard which was before the jury. It was given on Wednesday 29th October 2014. There had in the interim been some delay in the course of the summing-up and in the judge completing it because of various jury absences. At all events, the jury (of whom there were now eleven in number) retired at 2.10pm on Wednesday 29th October.

[12]There were then further delays because of juror illness and other juror commitments and so on. In fact, the court did not sit at all on 3rd or 4th November 2014: in this regard the jury had sent notes indicating the difficulties some had in attending on those dates. No note which was sent concerned the evidence. Nor did any note sent to the judge indicate any current voting figures or indicate that the jury were divided or were having difficulty in reaching verdicts. However, at one stage in the course of their deliberations the jury sent a note which stated that they were agreed with regard to the third defendant. Sensibly, the judge decided not to take a verdict at that stage with regard to that defendant. He took verdicts only at a later stage. We might add that the third defendant was in due course acquitted.

[13]By 6th November 2014, the stage had still not been reached where the judge had felt it appropriate to give a majority direction to the jury. On 6th November 2014, a message was conveyed by jury note that the jury had reached verdicts on which they were agreed. That note was timed at 10.30am. It read: "Verdict for all."

[14]The jury returned to court at 10.55am. They were asked by the clerk of the court if they had reached verdicts on which they were all agreed with regard to all defendants. The foreman answered: "Yes". A verdict on the count of conspiracy to cheat was obtained in relation to each of the five defendants. In each case, as is conventional, the clerk asked the foreman if the jury were all agreed with regard to that particular defendant on that particular count. The foreman on each occasion answered: "Yes". The verdicts were delivered sequentially on that basis. After each such verdict had been given, be it guilty or not guilty, the clerk then also sought the confirmation of the foreman that that had been the verdict on which they were all agreed; and the jury foreman so confirmed. The transcript indicates that no dissent of any kind was conveyed by any juror to the verdicts delivered by the foreman as unanimous verdicts. Further, the tape has been played and it appears that there is no audible indication of any expression of dissent. Furthermore, no one appearing at the trial noted any facial or other expressions or gestures on the part of any juror indicating any dissent with or surprise at what the jury foreman was stating. As we have said, the jury convicted these two appellants, along with another co-accused (Noor) and acquitted the remaining two defendants. All such verdicts, therefore, were stated in open court to be, and were confirmed in open court to be, unanimous.

[15]The jury having delivered their verdicts, the judge then, as is usual, tendered his thanks to them. The jury were then discharged and left court in the presence of an usher shortly before 11am. At 11.03am the judge proceeded to discuss sentencing arrangements with counsel. Shortly thereafter, at around 11.11am, the judge was asked by his clerk to rise as a matter of urgency. It was then reported to the judge that the jury usher had said that one juror (who may be styled "Juror A") had said to the usher in the jury assembly room, after the jury had been discharged, that "I don't know what to do because the foreman said we were all agreed, when in fact we were not". The usher said that Juror A was to write that down. Juror A then said to the usher that another juror (who may be styled "Juror B") had the same concerns. The usher then asked Jurors A and B to write a joint note to the judge. That note stated as follows:

"Defendant 1 [the first appellant, Ul Hamid] (1) unsure (1) not guilty. Defendant 5 [the second appellant, Khan] (2) unsure."

[16]At around 11.30am another juror (who may be styled "Juror C") asked to speak to the usher. He, as requested, reduced his stated concern in a note which is timed at 11.50am. That note reads as follows:

"On the fourth person [the co-accused Afzal, who was acquitted] we was all stuck on guilty or not because the numbers was close. It was like 6 to 7 or something along them lines. But some people stated that we had to go with the most witch found the person not guilty. Witch I did not agree."

The trial judge very properly informed counsel in open court of the fact of receipt of these notes. Also very properly, he did not feel able to divulge the contents of these notes to counsel on that occasion. The trial judge correctly took the view that, so far as he was concerned as trial judge, he was now functus, the jury having been discharged. However, and as again was proper, he referred the matter to the Registrar of Criminal Appeals and submitted a written report in this regard. The Proceedings in the Court of Appeal

[17]In due course the three accused who had been convicted launched these appeals. (Subsequently, the accused Noor has abandoned her appeal.) The appeals are based on the proposition that the verdicts were irregular and invalid. They had purported to be unanimous verdicts when the notes, as since handed in, indicated that the jury were not, in fact, unanimous. Moreover, if it be relevant, this was at a time when no majority verdict direction had been given. In the alternative, it is said that, even if the verdicts were unanimous, unanimity had been achieved by undue pressure being placed on some of the jurors to fall in line with the majority.

[18]The matter came before a constitution of this court on 4th March 2015. All parties were represented by counsel. All were made aware of what the notes submitted after trial had said. There was extensive discussion. In the result a procedure was agreed upon by all counsel and was approved by the court. That involved written questions in the form of a questionnaire being administered via the offices of the Criminal Cases Review Commission to each of the eleven jurors involved. In the relevant respects the questionnaire was in this agreed form:

"On Thursday 6th November 2014 the jury returned the following verdicts in respect of count 1 of the indictment and the five defendants as follows: 1. Ibbtsam Ul-Hamid, guilty 2. Jamilla Noor, guilty 3. Babel Zahoor, not guilty 4. Mohammed Afzal, not guilty 5. Gulbar Khan, guilty" 19. "

At the time the jury returned to court to deliver its verdicts: 1. Had you expressed your agreement with the guilty verdicts in respect of defendants 1, 2 and 5? 2. Had each other member of the jury expressed agreement with those verdicts? 3. If your answer to either question 1 or 2 is 'no', in respect of which verdicts were the jury not all agreed?"

[19]This questionnaire, in agreed form, was then administered to each of the eleven jurors. A representative of the Criminal Cases Review Commission attended upon each such juror separately for that purpose. Of those jurors, eight of them, without any equivocation of any kind, answered "Yes" to the first two questions. A number of those eight were also recorded by the representative of the Criminal Cases Review Commission who administered the questionnaire as stating, in surrounding conversation, words to the effect that they had gathered that two of their number had had "second thoughts" after the verdicts had been delivered, and that all the jury had in fact been agreed. They expressed surprise that those two jurors had not previously expressed any dissent.

[20]One juror (who evidently was Juror C, who had written the note which we have mentioned shortly after the verdicts had been taken) did not co-operate with the Criminal Cases Review Commission. He did not attend appointments, although several were arranged, and he did not fill in the questionnaire. The Criminal Cases Review Commission reported that its view was that he was unwilling to assist. Nevertheless, reliance continues to be placed upon what Juror C had stated in his note as handed in after the verdicts had been delivered at the Birmingham Crown Court.

[21]That leaves the position of Juror A and Juror B. Juror A's answer to the questionnaire in the relevant respect to the first question was to write in "No". As to the second question, the manuscript answer was:

"No – another lady was unsure"

. As to the third question, the answer of Juror A was this: "(a) Defendant 1 – had expressed 'not guilty' [crossed through], unsure. (b) Defendant 1 – unsure" (There may be some doubt as to whether (b) was intended to relate to defendant 1 or to defendant 5, but the answer in terms refers to defendant 1.)

[22]The answer of Juror B to the first question was:

"No, I was under the impression that we had to go with the majority view."

To the second question the answer was: 27. "No – at lease one other jury member had not – unsure about a third person." In answer to the third question, this was said: 28. "Defendant 2 – I think we were all 100% certain (in agreement with verdict). 29. I was definitely unsure about defendant 1 and 5 but I can't remember whether I agreed in the end with the guilty verdict in relation to defendant 5. I was new to the whole process and, being honest, I was unsure about both defendant 1 and 5. 30. I think the other jury member referred to in (b) had not expressed agreement with defendant 1. They were unsure about defendant 1. I believe this juror had been in agreement with the verdict in relation to defendant 5. I'd like to say that I am uncertain about this jury member's agreement with the verdict in relation to defendant 5."

[23]Those answers having been obtained, the matter came back before another constitution of this court on 23rd September 2015, when again all parties were represented by counsel. Mr Walker (for the first appellant) and Mr Jutla (for the second appellant) were not happy with the answers to the questionnaire. Indeed, Mr Walker proposed that all eleven jurors should be summonsed before this court so that they could be questioned. Alternatively, he proposed that a series of further questions, which he had not precisely formulated, should be administered to the jurors.

[24]Mr Jutla did not associate himself with those proposals. However, he suggested that further questions should be asked at least of Jurors A and B as to why they had not raised concern at the time the verdicts were actually delivered in court. This court on that occasion declined in the circumstances to direct any further questions being put to the jurors and declined to permit the jurors individually to be questioned in this court. The questionnaire, as originally formulated, had been agreed by all concerned on the previous occasion. To administer yet more questions would be potentially unproductive, potentially unfair and oppressive to the jurors, and also might tend, unwarrantedly, to probe into the jury's deliberations. Thus the matter has to be assessed today by this court on the materials now before it.

The Legal Approach

[25]It is only in the most exceptional cases that enquiries as to the way in which jury verdicts have been reached will be directed. The reason is clear. The sanctity of the jury's private deliberations must be respected as an integral part of the jury system. Were it otherwise, the jury system would be gravely undermined. In this particular case, on the special circumstances which arose, a constitution of this court on a previous occasion had been prepared to direct that enquiries be made of the jury through the good offices of the Criminal Cases Review Commission in the manner we have indicated, and had obtained the information, as we have indicted.

[26]In R v Charnley

[2007] 2 Cr App R 33

, a juror had complained immediately after verdicts purporting to be unanimous had been delivered that the jury had not, in fact, been unanimous. Investigations were made and it was conclusively established that that complaint had been accurate. The jury had been divided either 8:4 or 9:3 on the relevant counts when the purported unanimous verdicts had been announced by the foreman. That that was indeed so was not only confirmed by subsequent enquiries made of the jury but also entirely accorded with jury notes which had been sent in to the judge shortly before the verdicts were delivered. In those special circumstances a constitution of this court set aside the verdicts in Charnley. They had not been, as they had purported to be, unanimous verdicts. Indeed, no majority direction had been given in any event. As Sir Igor Judge (President of the Queen's Bench Division) put it:

"In reality, they were non-verdicts returned in error by the foreman."

To the second question the answer was:

[27]In R v Baybasin and Others

[2014] 1 Cr App R 19

, this court was concerned with a situation where various alleged irregularities in the jury process were raised after the trial had concluded. Although it is to be noted that the alleged irregularities in that case did not extend to assertions that verdicts purporting to be unanimous had not, in fact, been unanimous, in the context of the kinds of irregularities there being alleged the Lord Chief Justice, in delivering the judgment of the court, speaking in general terms, said this:

"60. We would add that great care has to be exercised before this kind of appeal proceeds. In R v Lewis [2013] EWCA Crim 776 this court observed at [25] that the inference that complaints after verdicts simply represent a protest by a juror at verdicts with which he or she disagrees are likely to be overwhelming. 61. It was evident to us that each of the jurors who had undertaken public service in an eight-week trial found it deeply distressing to be recalled to court over two years later, to be accused of wrongdoing and to have their integrity questioned. The allegation which led to this appeal was a complaint by a juror who probably was motivated by the desire to dissociate himself from the verdict for personal reasons which we have explained. 62. Although that was not known at the time the investigation by the Criminal Cases Review Commission was initiated the fact that complaint of irregularity was first made after the verdict should henceforth be a very firm indication against the initiation of any inquiry in to the way the jury acted, absent other compelling evidence. Juries are now told in very clear terms to report irregularities during the trial. The evidence from this and other cases demonstrates that juries take their responsibilities with great seriousness and care, as one would expect of citizens called to perform such a high civic duty. The evidence is that they do report irregularities if they occur. 63. We therefore have little doubt that if one of the jurors during the trial falls below the standards expected of a juror, the other jurors will report that to the judge during the trial and before the verdict. That is the presumption upon which this court should act, if the complaint is first made after the taking of the verdict. Inquiries should therefore not be ordered in such cases and the finality of the verdict accepted, absent other strong and compelling evidence. To do otherwise is neither fair nor just. Jurors doing their public duty should not in such circumstances be put through an examination of their conduct some considerable time after the performance of their civic duties."

Conclusion

[28]In the present case, Mr Walker and Mr Jutla both emphasised that Jurors A and B, and indeed Juror C, had expressed their concerns only a relatively few minutes after the verdicts had been given and before they had left the court building. It was submitted that credence should be given to those concerns. Those concerns, as set out in the notes put in at the time, and as since set out in the answers to the questionnaire from Jurors A and B, indicate, it is submitted, that the jury had not in fact been, contrary to what had been represented, unanimous.

[29]In our view, this court must view such submissions with very considerable caution. It is indeed a relevant matter, we accept, that concerns were swiftly raised. There is certainly no reason to think that any kind of external influence had been brought to bear on these particular jurors. But the position can arise when verdicts are being returned (for example, from the reactions of the defendants or their families, be it tears or otherwise, or from the reactions from the public gallery, or indeed perhaps just on further reflection as to the significance of actually returning guilty verdicts) which may render unreliable purported statements thereafter that the verdicts were not unanimous and that an individual juror or jurors had not been sure or had not agreed with the verdict at the time: in other words, second thoughts.

[30]However, speaking generally, second thoughts after a verdict has been delivered are not relevant. What matters is whether the jury had been unanimous at the time when the verdicts were delivered. A subsequent change of heart, even if it occurs swiftly thereafter, simply will not do. It is therefore irrelevant, where a juror has indicated assent to a verdict, for the juror thereafter to say, after the verdict has been delivered, that in his/her mind he/she had harboured doubts or was unsure. It is also irrelevant, where a juror has indicated assent to a verdict, for that juror thereafter to say that he/she had, in fact, been "unsure" but had simply gone along with the majority. What counts is the ostensible demonstration of assent in the jury room to the verdicts as actually thereafter delivered in open court. Overall, ostensibly regular jury verdicts, as delivered, are to be respected and most certainly are not lightly thereafter to be interfered with.

[31]In the present case, on any view of the matter, there can be no question whatsoever of any wholesale repudiation of the juror's oaths. Further, eight of the jurors were subsequently unequivocal that the verdicts had, indeed, been unanimous at the time. The reaction of Juror C, both in the immediate aftermath of the verdicts and thereafter, was most unsatisfactory and in effect can be discounted. Certainly what Juror C said in his note as handed in after the verdicts had been delivered to the trial judge gains no support from anything that any other juror, including Juror A and Juror B, had said, and was in any event equivocal. It may well be, for example, that at various stages in their deliberations the jury had, indeed, been divided but as their deliberations continued they all came to a unanimous view. It is true that Juror C had said in his note "witch I did not agree". But he does not state, and has never since stated, that he expressed that disagreement to the other jurors in the course of their deliberations before they agreed on their verdicts.

[32]As to Jurors A and B, the note which they delivered to the judge at the time was hardly of the clearest. It certainly did not state in terms that they had expressed their disagreement at the time to the other members of the jury whilst deliberating. Nor, indeed, does that note indicate in any way that they had been subjected to any pressure in agreeing any verdicts.

[33]So far as the answers to the questionnaire are concerned, those too continue to have a degree of equivocation. That is not a criticism of Jurors A and B; it is simply a statement of the reality. For example, Juror A's statement that she was "unsure" does not convey that at the time she had been expressly holding out right at the very end for a not guilty verdict and had said so to the other members of the jurors. Moreover, her answers seem only to have related to the first defendant and not to the fifth defendant. On the face of it, she had expressed no concerns with regard either to the second defendant or the fifth defendant.

[34]Juror B also refers to being "unsure" and says that she "can't remember" whether she "agreed in the end" with the guilty verdict in relation to defendant 5 (that is the second appellant). Neither juror, in their answers to the questionnaire as we read them, spells out in terms that they had been in favour of not guilty verdicts at the time and had so stated to the other jurors before they returned to court. Further, neither of them says that they were placed under undue pressure to agree with the majority. The fact that one or other of them may have felt under pressure is not the same thing as being placed under undue pressure by other jury members.

[35]Overall, we regard this as wholly unpersuasive evidence of any material irregularity in the delivery of the jury verdicts. Not only do the rather equivocal answers of Jurors A and B have to be set against the wholly clear and wholly unequivocal answers of all other eight jurors, but there are also these other points which are to be taken into account.(1) No note had been sent in to the judge after the jury had retired to deliberate such as to indicate that the jury were struggling to reach unanimous verdicts or such as to give split voting figures. The position is quite unlike that in Charnley. There was no note put in which had prompted the judge to think that he might need to give a majority verdict direction. On the contrary, the one note which the jury had put in, relating to the state of their deliberations, indicated that they had agreed on a verdict with regard to the third defendant. That connotes quite clearly that the jury well understood the need for unanimity with respect to each individual defendant.

(2) Before the verdicts were actually delivered, the jury had sent in a note to the judge saying: "Verdict on all." That at least implies unanimity.

(3) The judge had given the clearest direction to the jury at the end of the summing-up that unanimity was needed. Furthermore, the jury also had that direction in writing with them in the jury room as part of the legal directions. There is no reason to think that the jury could not be trusted to abide by that direction.

(4) At no time did any member of the jury express dissent, either verbally or by any other expression, when the verdicts were being delivered by the foreman of the jury and when the clerk on each occasion, with regard to each of the co-accused, obtained confirmation that the verdicts were verdicts in respect of which all the members of the jury had agreed.

(5) At no time was any dissent or dissatisfaction indicated when the judge thereafter gave his thanks to the jury before discharging them.

(6) The fact that two jurors, Jurors A and B, expressed reservation afterwards in the form that they did has to be placed in the context of their seemingly having conferred together.

(7) The fact that mixed verdicts were delivered is also entirely consistent with the jury fully appreciating and discharging their functions in a proper way at the time.

[36]In all these circumstances, we conclude that these verdicts were properly entered and were proper verdicts. We are satisfied that these convictions are safe. We dismiss these appeals.

[37]No reporting restrictions apply to this judgment.