Bhagchandka v R. [2016] EWCA Crim 700

[2016] EWCA Crim 700Case No 201601585 C1 and 201601261 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
MR RECORDER BEDINGFIELD
T20147276
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/06/2016
Before
LORD JUSTICE McCOMBEMR JUSTICE WYN WILLIAMSTHE RECORDER OF LIVERPOOL(HIS HONOUR JUDGE GOLDSTONE QC)(sitting as a Judge of the Court of Appeal (Criminal Division))
Between
ANIRUDH BHAGCHANDKAApplicantREGINARespondent
(Transcript of the Handed Down Judgment.Copies of this transcript are available from:WordWave International Limited165 Fleet Street, London EC4A 2DYTel No: 020 7414 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
R.T. Kovalevsky QC (instructed by Blackfords) for ApplicantJonathan Ingram (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date: 8 June 2016
Judgment As Approved by the CourtLord Justice McCombe:
[1]On 12 February 2016 in the Crown Court at Blackfriars, after a trial before Mr Recorder Bedingfield and a jury, the appellant was convicted (on count 1) of doing an act tending to and intended to pervert the course of public justice and (on count 2) of dangerous driving. He pleaded guilty on the day of sentence to an offence of using a motor vehicle without insurance, a charge committed to the Crown Court by the magistrates. On the same day he was sentenced by the judge to 15 months imprisonment for perverting of justice offence and to 12 months imprisonment, to be served concurrently, for dangerous driving. No separate penalty was imposed in respect of the lack of insurance. The total sentence was, therefore, 15 months’ imprisonment. The appellant was also disqualified from driving for a period of 5 years and until passing an extended driving test. His application for an extension of time (some 20 days) in which to apply for leave to appeal against conviction (in respect of the perverting of the course of justice offence) and his application for leave to appeal against sentence were referred to the Full Court, with a direction that the appeal should be expedited.[2]We heard the applications on 8 June 2016. At the conclusion of the hearing we announced our decisions as follows. We granted leave to appeal against conviction on count 1. We allowed the appeal and quashed the conviction and sentence on that count. We granted leave to appeal against sentence on count 2 and allowed the appeal to the extent of quashing the sentence of 12 months’ imprisonment and the disqualification period of 5 years on that count and substituted a sentence of [6] months’ imprisonment and 3 years’ disqualification. In announcing our decisions, we said that we would give our reasons for them at a later date, which we now do in a judgment to which all members of the court have contributed.[3]We say at the outset that the delay in submitting the application(s) is explained as arising out of the need for counsel newly instructed to investigate certain matters with trial counsel who was not initially available for the necessary discussions. We accept that explanation and grant the extension of time sought.[4]There was one co-accused also charged in respect of the offence of perverting the course of justice. That was a man called Ayush Jindal. He failed to attend the trial and his trial was severed from that of the appellant.[5]The background facts of the case were very straightforward and the issue at trial, on the conviction against which leave to appeal was sought, was a narrow one. In the early hours of 22 March 2014 a white Range Rover motor car was driven away from a nightclub in London W1. The vehicle had been leased to the co-accused, Jindal, who was the only person insured to drive it. The vehicle collided with a set of bollards in the Tottenham Court Road area of London; it flipped onto its side and came to rest in the basement area of a nearby property. In the rear seats of the car were four young women. In the front seats were the appellant and the co-accused. The appellant was the driver. Evidence was given by three of the women as to the excessive speed at which the vehicle was driven, their fear for their safety and warnings to the appellant to slow down. Some of the women were screaming. The appellant admitted careless driving, but denied dangerous driving. The jury convicted him of the more serious offence and there is no appeal advanced in respect of that conviction.[6]Leave to appeal was sought, however, in respect of the conviction for perverting the course of justice and against sentence on both counts.[7]The circumstances of the contested conviction were within a very narrow compass.[8]After the accident all the occupants got out of the crashed vehicle. All, save one of the women, had suffered injuries of varying degrees, although none required serious medical attention. The police were called. Two officers, PC Brooks and PC Naby arrived shortly after the accident had occurred. PC Brooks told the jury that he, together with PC Naby, arrived in the scene in a marked police car at about 4.10 a.m. He saw the vehicle where it had come to rest. No one was in it. He spoke to an occupier of the property affected who pointed out the potential drivers as the applicant and Jindal who were standing together nearby. PC Brooks’ evidence in chief about what happened next and what was said was as follows:- “Q. Did either of them identify themselves to you? A. Yes. Mr Jindal did. Q. Mr Jindal gave you his details. A. Yes. He stated that he was driving the vehicle. Q. He said he was driving. Can you give us the exact words he said? A. Yes. He said “I was driving. I don’t know how the car ended up there but I was going fast.” Q. “I was driving. I don’t know how the car ended up there but I was going fast.” The other man who was with Mr Jindal, was he present when that was being said? A. Yes. He was. Q. Was he saying anything, doing anything or was he able to listen to what was being said? A. He could hear what was being said, yes. Q. Did you have both of their attention as far as you were concerned? A. Yes. Q. Did he react when Mr Jindal said that he was driving and he didn’t know how the car ended up there and he was going fast? A. Yes, he did. Q. Did he say something? A. He did. Q. What did he say? A. He said that he was a passenger in the vehicle. Front seat passenger. Q. He said he was a, can you give us the exact words, please? A. He said:
“I was sitting in the front passenger seat”.”
[9]It was this evidence and, in particular, the applicant’s alleged statement that he was in the front passenger seat upon which the Crown relied, primarily, for the charge of perverting the course of justice. The officer also said in evidence that the applicant confirmed that he was a passenger when seated a little later in the police vehicle.[10]PC Brooks said to the jury that he had to compile a Collision Accident Report Book (CARB). He had made a note of talking to the applicant between 0430 and 0445 that morning. He had noted that the applicant had told him that he was a passenger. He had invited the applicant to sign the note but he had refused. The CARB had been checked by a police sergeant at 6 p.m. on 23 March, i.e. over 24 hours after the accident.[11]The applicant denied telling the officer that he had been a passenger. Mr Kovalesky QC, for the applicant, in his very full advice and grounds of appeal, picked out two passages in the applicant’s evidence where the applicant had denied making the statement attributed to him by PC Brooks. In examination-in-chief the applicant had said:- “A: It was his car, he was talking to the cops, handling everything, so I didn’t really come in between, or have anything to do with it. Q. PC Brooks said that you told him you were the passenger in the vehicle; do you agree with that? A. No, no, I don’t remember him asking me anything about the car, all they were trying to ascertain was if I was hurt or not, since the ambulance was there and to make sure I was alright. That’s the only conversations I had with the cops. Q. Were you given any impression that other than the obvious injuries, anyone was in trouble at the incident? A. No. Q. When you have been in the court, you have seen an officer with a notebook with a piece of paper saying that you refused to sign something. Do you remember being offered something to sign? A. I don’t. I didn’t even know that you could refuse an officer or not sign something if you said it. I was not aware of – I don’t know how the process works and I don’t think I would be in a position to refuse to an officer at 4.00 a.m. in the morning to not sign a document. THE JUDGE: Were you offered a document to sign? A. No. THE JUDGE: You were not offered a document to sign? A. No.” Under cross examination the applicant maintained his denials. Q. … in his normal, ordinary way of just investigating a road traffic accident. That is a perfectly understandable question to you and he wrote it down as the answer you gave. Do you accept that or not? A. I did not have a conversation with PC Brooks regarding this subject. Q. So he made that up? A. He was speaking to Ayush the whole time, as I said. Q. PC Brooks’ evidence is that outside his own car he talked to both of you, who were both standing right next to him, both together, both within earshot of each other and he asked who was were. Jindal said he was driving and you said, “I was sitting in the front passenger seat” and that is what he wrote down. Are you saying that he lied about that? A. Jindal must have said whatever – he did not speak directly on any particular event. All of this was being spoken to Mr Ayush at that time.”[12]At first blush the straightforward issue for the jury was whether they were sure that the applicant had made the statements which PC Brooks said that he had – at least that should have been the position. Mr Kovalesky QC accepted that the jury were properly directed by the judge as to the ingredients of the offence charged and that, if matters had rested there, the conviction would have been safe.[13]However, the application for leave to appeal against the conviction was founded upon three alleged material irregularities in the trial process. These were as follows and we take the arguments in turn.[14]First, in the ordinary way, the applicant’s interview under caution with the police was put in evidence before the jury. However, the interview included a passage in which the interviewing officer had put to the applicant a statement, said to have been made by Jindal in his own interview under caution, in which he had said that, prior to the arrival of the police at the scene on the night in question, the applicant had initiated a conversation in which he had asked Jindal to say that he (Jindal) had been the driver. It is necessary to quote this part of the interview under caution in full. The transcript reads as follows:- “PC.S, As you know, PC TELFORD arrested Ayush just over the weekend and I interviewed him on tape in the same way that I interviewed you. He agrees with your account pretty much and he says that you were driving as well and he accepts that he’s allowed you to use that vehicle even though the insurance policy only states that he’s entitled to drive it. He says that immediately after the accident, before the police arrived, that you had a conversation and he says that you asked him to say that he was driving. A. BHAG. I was not aware of what was going on. For me to say that he was driving, why? PC.S. Well I suspect because your driving was sufficiently fast for you to have had that accident. You may have been worried about insurance or not having insurance and you asked him to lie on your behalf because you would be in trouble otherwise. What do you say to that? A.BHAG. I didn’t have a conversation with him. PC.S. Why is Ayush lying? A.BHAG. Lots of things happen when this ???? police was there immediately after, a minute or two so … PC.S. So what? So you’re saying that you didn’t have time to have a conversation? A.Bhag. Yeah. We got out, everyone was a little, police came and then we did exactly what we did. PC.S. I am just trying to understand why your friend Ayush would lie about that. A.Bhag. Why would? If I was, even if I am not aware of ???? PC.S. That’s fair. He told me the truth about everything else, so I am just wondering why he might lie about that one particular detail. A.Bhag. I have no clue.” PC.S. Why is Ayush lying? PC.S. So what? So you’re saying that you didn’t have time to have a conversation? A.Bhag. Why would? If I was, even if I am not aware of ???? A.Bhag. I have no clue.”

A.Bhag. Why would? If I was, even if I am not aware of ????

[15]This passage of the applicant’s interview was put to the applicant in cross-examination. The suggestion was made, in effect, that Jindal had been truthful in his interview under caution when he had maintained that the applicant had asked him to say that he was the driver in a short conversation which had taken place between the two men before the police arrived.[16]Mr Kovalevsky QC submitted to us that the passage set out above from the applicant’s interview under caution should not have been introduced into evidence, as a hearsay statement of what Jindal had said, in a trial at which Jindal did not appear. The passage should have been edited out of the transcript of the interview under caution which was placed before the jury. Further, and as the second proposed ground of appeal, it was submitted that the judge should not have permitted the cross-examination of the applicant upon that part of the interview. He should not have been asked direct questions about Jindal’s assertion that the two men had agreed that Jindal would say that he was the driver and he should not have been asked about Jindal’s motive for making this assertion.[17]Before the trial commenced prosecuting and defence counsel addressed the judge about what were called “housekeeping matters”. There was a short discussion about the applicants’ interview under caution. Mr Ingram who appeared for the prosecution informed the judge that he understood that the interview under caution was “agreed in its entirety”. Counsel then appearing for the applicant confirmed that was correct. On the face of it, therefore, there appeared to have been an agreement between counsel that the whole of the applicants’ interview under caution should be put before the jury as admissible evidence.[18]That was to change when Mr Ingram began cross-examining the applicant about that part of his interview under caution which contained reference to what Jindal had said in interview. Counsel for the applicant objected to that line of cross- examination. To an extent her objection succeeded in that Mr Ingram did not press further cross-examination aimed specifically at the passage in the applicant’s interview.[19]At the close of the evidence there was a discussion between counsel and the judge about aspects of his proposed summing up. One of the aspects discussed was how the judge should deal with that part of the applicant’s interview under caution set out above and Mr Ingram’s cross examination upon it. At the conclusion of this part of the discussion the judge formulated some sentences which, he said, would be incorporated into his summing up. This formed part of an exchange between Mr Ingram and the judge. We quote:- “Mr Ingram: Your Honour, I think I have to accept that there is no actual evidence from Mr Jindal. His interview was put to Mr Bhagchandka and the jury are entitled to take into account the questions that were put in interview. The Judge: What if I say this, “you decide the case against Mr Bhagchandka on the evidence you have heard. You should not speculate about other matters. Mr Jindal’s comment to the police about Mr Bhagchandka was not made under oath and he has not come to swear on oath that Mr Bhagchandka said this to him. You should not rely solely on Mr Jindal’s comment to find the defendant guilty. Having been asked that, you remember that Mr Bhagchandka denied that the conversation took place.” Mr Ingram: Your Honour, yes. Perhaps the question of relying on what Mr Jindal said, I think it is right to say that it is not evidence what Mr Jindal has said; it has been put to Mr Bhagchandka, he has been asked about, and he has denied it. The Judge: So if I say “you should not rely on Mr Jindal’s comment to find the defendant guilty …”, as opposed to, “you should not rely soley - ” Mr Ingram: Yes, I think that must be right.” Mr Ingram: Yes, I think that must be right.”[20]The judge referred to applicant’s interview under caution and cross-examination upon it in a number of passages of his summing-up. First, more or less at the end of his review of the case for the prosecution, the judge made reference to the applicant’s interview under caution. At that stage he simply said:- “I am not going to go through the interview with you, because,(1) you have heard it already or had it read to you; and(2) I believe you have a copy of the interview in your possession.” As is obvious there was no specific reference to any part of the interview at this point. Second, the judge made specific reference to the line of cross examination which Mr Ingram had initiated about whether to two men had discussed saying that Jindal was the driver, as alleged by Jindal in his interview under caution. The judge did not relate this line of cross examination specifically to the applicant’s interview under caution (or for that matter Jindal’s interview under caution) but that was the only context in which this had arisen. He referred, too, to that part of this cross-examination which asked the applicant to provide an explanation as to why Jindal may have lied about this issue. Third, the judge gave a direction which was in similar terms to that which he had discussed with prosecuting counsel as set out above. This occurred towards the end of his summing up – after he had dealt with character evidence. This is what he said:- “You are not to speculate about the fact that Mr Jindal is not on trial. You are to decide the case against Mr Bhagchandka on the evidence you have heard and should not speculate about any other matters. Mr Jindal’s comment to the police about Mr Bhagchandka was not made under oath. He has not come to swear on oath that Mr Bhagchandka said this to him. You should not rely on Mr Jindal’s comment to find the defendant guilty. You will rememeber that Mr Bhagchandka just simply denied that that conversation took place and it is a matter for you to determine whether you believe Mr Bhagchandka’s evidence.[21]Mr Kovalesky QC submitted that the interview assertions of Jindal, having been denied by the applicant in his interview, could not be admissible in evidence against the applicant. The applicant should not have been cross-examined upon them and he should not have been cross-examined in such a way so as to convey to the jury that they were entitled to proceed on the basis that what Jindal had said to the police was admissible evidence against the applicant. It was submitted that defence counsel was in error in not objecting to the cross-examination and/or in not seeking the discharge of the jury once the material had been introduced. He argued that the judge’s summing-up on these points, which we have quoted and summarised above, was wholly insufficient. The admission of the offending part of the applicant’s interview under caution and the cross-examination upon it, he argues, were significantly prejudicial to the defence and renders the conviction unsafe.[22]The first two points raised in support of the proposed appeal effectively run together. It seems to us that the passage in the applicant’s interview set out above was not properly evidence against this applicant on conventional grounds. No application had been made for Jindal’s statements to be adduced as hearsay under the provisions of the Criminal Justice Act 2003. Quite simply, the passage should not have been before the jury. Mr Ingram, quite properly, did not seek to persuade us that the Jindal statements had been adduced by agreement under the 2003 Act, notwithstanding what both defence counsel and he had told the judge about the interview before the trial started. If the offending part of the interview has been excised (as it should have been) the cross-examination objected to would not have been possible. We are satisfied that there were, indeed, material irregularities in the trial process. The offending part of the interview under caution should not have been before the jury and it should not have been the subject of cross-examination.[23]We acknowledge, of course, that had Jindal been present as a co-accused at the hearing, as was intended, his interview under caution would be likely have been adduced before the jury. In these circumstances, no doubt, it might not have mattered unduly if the applicant’s interview record had contained the offending passage. The usual course in a case where such material gets before a jury at a joint trial is for the judge to tell the jury that the interview answers of one accused, implicating a co-accused, are not evidence against that co-accused.[24]We turn to consider, therefore, whether the summing-up of the judge made it sufficiently clear that the jury were to ignore what Jindal was reported as having said during the course of his own interview. We have set out the relevant parts of the summing-up above. Far from directing the jury that Jindal’s statements in interview were to be ignored, the judge appears to afford his statements some evidential significance. The direction that the jury “should not rely on Mr Jindal’s comment to find the defendant guilty” is hardly a clear direction to the effect that they should ignore it. In our judgment the summing-up did not cure the irregularities which had crept into this trial.[25]Do the irregularities which we have identified above and the failure to deal appropriately with those irregularities in the summing up render the conviction on Count 1 unsafe? In our judgment they do. We were persuaded by Mr Kovalevsky QC that we could not be sure that the jury took no account of Jindal’s statement to the police as contained in the applicant’s interview under caution when reaching their verdict. Indeed, given the way the applicant was cross-examined and given the content of the summing up it seems to us to be very likely that the jury might, inevitably, have paid some regard to his statement when reaching their conclusion. Further, in a case in which the crucial issue turned upon simply the oral evidence of the police officer on the one hand and the applicant on the other, the effect on the minds of the jury of the inadmissible material could have had a significant effect.[26]During the course of argument before us the possibility was raised that the conviction was safe because it was open to the jury to infer that the applicant and Jindal had agreed before the arrival before the police that Jindal would say that he was the driver. Mr Ingram submitted that it would be fanciful to suppose that Mr Jindal had volunteered that he was the driver unless that had been agreed with the applicant before the arrival of the police. We understand and accept that this submission has some force. However, we were not persuaded that we could categorise the conviction as safe on this basis. We say that for two reasons. First, the case was never presented in this way to the jury. The summing up contains none of the directions normally to be found when a jury is asked to draw an inference on an important aspect of the case. Second, we were not persuaded that it was an irresistible inference that such a conversation had taken place between the two men. We note that PC Brooks’ evidence was that it was Jindal who volunteered that he was the driver. It is at least possible that, for reasons of his own, he decided to make that assertion without prior discussion with the applicant and, if that possibility exists the applicant could not have been convicted, safely, on the basis of an inference that there must have been a discussion between the two men.[27]The third point advanced by Mr Kovalevsky was that the judge failed to give a “Lucas” direction to the jury in respect of a lie or potential lie told by the applicant in the course of his evidence. (Lucas (1981) 73 Cr. App. R 159)[28]It appears that Crown counsel invited the judge to consider whether such a direction should be given. Counsel for the defence referred only to the central alleged lie, namely whether or not the applicant had said to PC Brooks that he was a passenger, i.e. not the driver. (The exchange is at p.110B-F of the summing up transcript.) The judge clearly indicated that this was central to the offence itself and was not, therefore, an appropriate subject for a Lucas direction: see Burge & Pegg [1996] 1 Cr App. R. 163 at 172-173 per Kennedy LJ, quoting Glidewell LJ in Liacoupolos (unreported) (1994) 31 August.[29]Mr Kovalevsky’s complaint was that the judge failed to identify and give an appropriate direction in relation to another potential lie which, it was suggested, the defendant told in evidence. The evidence in question related to the cross-examination of the applicant concerning a conversation between Jindal and the police officer, in the presence of the applicant, in which Jindal maintained that he had been driving the car. The applicant said that he had not been aware of what was being said. He was cross-examined about this in following short passage to which Mr Kovalevsky refers in his advice. The passage is at pp.76A-F of the transcript for 11 February 2016, as follows:
“A. I was in the car when PC Brooks was speaking to Ayush. But I am not aware as to what they were talking about. Q. You have no idea what he was talking about. It wasn’t of any interest to you at all. A. At that time? Such an incident had taken place and I was the driver, so the whole thing was – Q. Exactly, it was fundamentally your fault. You were the driver, you were the one who caused the whole thing. A. That is what was going on in my mind again and again. Q. You were not interested in what Jindal was saying to the police officer about it. A. He was dealing with his car at that moment. Q. It was of crucial interest to you at that stage, inevitably, Mr Bhagchandka. Come on, that is common sense.”
Mr Kovalevsky argued that the jury might have relied upon finding these answers untruthful as support for their finding of guilt on count 1.[30]With regard to the need for a Lucas direction, we do not consider that such a direction was required here. It was not a potential lie upon which either counsel or the judge focussed as material in this respect. Neither invited the judge to direct the jury upon it. Such directions were introduced as a safeguard in cases where the Crown was relying upon lies told as specific support for their case. They are not required in every case where a lie or potential lie, of whatever significance to the issues, can be extracted from the evidence There is danger from a defence point of view that to highlight a peripheral matter of this sort only serves to elevate its importance in the mind of the jury. Moreover, the jury had already been directed that the applicant’s mere silence in the face of what Jindal said could not prove the offence in count 1. In so far as opinion might differ among trial judges as to whether such a direction would be given in such circumstances, we are entirely satisfied that the omission in this case could not render this conviction unsafe. However, for the reasons set out above, we reached the conclusion that the conviction on Count 1was unsafe and accordingly we granted leave to appeal against that conviction and we quashed the conviction and the sentence on that count.[31]We turn to the application for leave to appeal against sentence on count 2, the dangerous driving conviction.[32]In this respect, Mr Kovalevsky submitted that the sentence of imprisonment was excessive and that the length of disqualification was also too long.[33]It was argued that this was not a case of persistent bad driving. While there was driving at speed, there was no evidence of racing or the like and no intoxicants were involved. There were protests from passengers as to the course of driving, but no serious injuries were sustained.[34]We were referred to the cases of Stokes [1998] 1 Cr App R (S) 282 and to Gray [2008] EWCA Crim 336.[35]In the first case, the appellant had driven over a pelican crossing against a red light and had injured two children, causing serious injury to each. This was another case in which the appellant had admitted careless driving, but had been convicted of the more serious offence. A 12 month sentence was reduced to 8 months and the disqualification was reduced from 3 years to 2.[36]In Gray a 13 month sentence of imprisonment, after a late guilty plea was reduced to 8 months, again serious injury had been caused. The appellant was young and of good character and was supported (as in the present case) by character references.[37]Mr Kovalevsky argued that these cases, while obviously each decisions on the facts, indicate that the sentences here were too long. He referred to the positive good character of this applicant, supported by a very large number of character witnesses, many of distinction themselves. He also invited the court to exercise a degree of mercy, having regard to the period of custody already experienced by this young man.[38]We also had the benefit of a pre-appeal report prepared at the direction of the Registrar. This report indicated that the applicant would be suitable for a suspended sentence order, either with unpaid work and curfew requirements, or as a standalone suspended sentence of imprisonment.[39]We considered that there was some force in the submissions advanced by Mr Kovalevsky in this respect, but perhaps not to the extent that he would have hoped in advancing them originally. However, when we suggested to him at the start of the hearing of the sentence application the sentences that we considered appropriate, he did not seek to persuade us to reduce them further[40]We did and do consider that the sentences of imprisonment and the disqualification period were excessive. This was, however, a serious example of dangerous driving in an urban environment at night, ending up with the vehicle overturning and finding itself in the basement area of a domestic property. The driving was persisted in in the face of protests from passengers.[41]In the end, we reached the conclusion that the application for leave to appeal against sentence on count 2 should be granted and that the appeal should be allowed to the extent of reducing that sentence to one of 6 months. We also reduced the period of disqualification from 5 years to 3 years. We ordered that the requirement of an extended driving test should remain as before. To that extent, the sentence appeal on count 2 was allowed.

Cited in 1 later judgment