Eisa, R v [2017] EWCA Crim 2314

Case No 201702588/B5-201702589/B5

[2017] EWCA Crim 2314

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Wednesday, 20 December 2017

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MRS JUSTICE McGOWAN DBE

MR JUSTICE LAVENDER

Between

R E G I N ACrown

Between

FAHAD EISA

Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr J Scouller appeared for Applicant

Mr D Cooke appeared for Crown

J U D G M E N T

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LORD JUSTICE HOLROYDE:

[1]On 11th May 2017, after a short trial in the Crown Court at Croydon, this appellant, Fahad Eisa, was convicted by a jury of offences of theft and fraud. On the following day the Recorder, who had presided over the trial, sentenced him for the fraud to a term of 6 months' imprisonment suspended for 24 months, with a requirement to perform 90 hours’ unpaid work. The Recorder imposed no separate penalty for the offence of theft.

[2]Mr Eisa applied for leave to appeal against his conviction and against his sentence. His applications have been referred to the Full Court by the Registrar.

[3]The facts of the case can be very simply stated. Mr Stephen Boateng is the proprietor of a business which, amongst other things, leases cars for use as taxis. His evidence was that in May 2015 he leased such a car to Mr Eisa for £120 per week. In September of that year it was necessary to renew the licence permitting that car to be used for the purposes of a taxi. Mr Boateng provided Mr Eisa with the V5 logbook document, which Mr Eisa would need in order to be able to complete the formalities of renewing the licence.

[4]The prosecution case was that the appellant Mr Eisa then retained the V5, changed the ownership details, forged Mr Boateng's signature and posted the document to the DVLA in order, successfully, to register himself as the owner and keeper of the vehicle. It was further alleged by the prosecution that Mr Boateng's signature was later forged on a handwritten document which purported to be a receipt evidencing an agreement by Mr Boateng to sell the car to the appellant for £3,500.

[5]Mr Boateng reported the matter to the police. When arrested and interviewed the appellant's account was that he had agreed to buy the car for £3,500. He had already paid £3000, the final payment of £500 having been delayed only because Mr Boateng had not yet completed some repair work which he had agreed to carry out. The appellant denied that he had forged Mr Boateng's signature on the V5 document, saying that Mr Boateng had signed that document in his, the appellant's presence. In the first interview under caution the appellant did not mention the existence of a receipt; he did however refer to it in a second interview at a later date.

[6]The indictment charged the appellant in count 1 with theft of the motor vehicle, the registration number of which was particularised. Count 2 charged him with fraud, the particulars being that between 31st August and 10th October 2015 he had committed fraud:

"... in that, dishonestly and intending thereby to make a gain for himself, or to cause loss to another, or to expose another to risk of loss, he made a false representation to the DVLA which was false and which he knew was or might be untrue or misleading, namely that a motor vehicle [registration details given] had been sold or transferred to him."

[7]Prosecuting counsel very sensibly amended those particulars before the matter went to the jury, so as to make it plain that the allegation here was of an intention on the part of the appellant to make a gain for himself.

[8]At trial the prosecution called an expert handwriting witness. She compared reference signatures of Mr Boateng with the signatures on the V5 document and the handwritten receipt. Her expert opinion in relation to those two documents differed. As to the V5 document, she said that her findings provided very strong support for the proposition that it had been signed by someone other than Mr Boateng and weak support for the proposition that it had been signed by Mr Eisa. As for the handwritten receipt, her opinion was that she was unable to determine whether the signature on that document was a genuine signature by Mr Boateng or was a simulation of his signature, using a model signature with similar features. In that latter regard, it was part of the prosecution case to show that a document genuinely signed by Mr Boateng was in the possession of the appellant, so that a specimen of the signature was available to be copied.

[9]The appellant gave evidence in his own defence. His evidence was consistent with the account he had given in interview. He said that Mr Boateng had signed both the contentious documents. In addition, he called his partner as witness. She said that she had provided the appellant with £1,000 towards the purchase price of the car.

[10]The case therefore turned on disputed issues of fact as between Mr Boateng and the appellant, in particular as to the signatures on the two contentious documents.

[11]In discussions with counsel prior to closing speeches and summing-up the Recorder considered the matters of law which were to be dealt with in the summing-up. It was agreed between prosecution and defence counsel that a direction regarding inferences from silence, pursuant to section 34 of the Criminal Justice and Public Order Act 1994, was appropriate only in relation to the failure by the appellant to mention the existence of the receipt when he made a prepared statement at the time of his first interview. It should be noted that in that regard the appellant in his evidence had given an explanation of why he had failed to mention that document at that stage. One of the concerns of defence counsel was that in the later interview there had been an amplification of other matters which had been mentioned only briefly when the appellant was first questioned.

[12]It seems to us that this was, in essence, a very straightforward case. Part 25 of the Criminal Procedure Rules includes, at rule 25.14, provisions in relation to the giving of directions to the jury in a jury trial. Of particular relevance to the present case are these sections of that rule:

"(2) The court must give the jury directions about the relevant law at any time at which to do so will assist jurors to evaluate the evidence.

(c) direct the jury to retire to consider its verdict …"

For present purposes we need not read any more of that rule.

[13]In the present case directions of law could have been briefly given. Little needed to be said about the legal ingredients of the two offences charged. There was scope, after appropriate discussions with counsel, to assist the jury by identifying respects in which it was agreed between the prosecution and defence that, if the jury were sure of certain facts, the defendant would have been proved guilty of one or both offences, and that if the jury were unsure of his guilt they must acquit. Similarly the direction as to inference from silence could have been focused with sole reference to the one failure on which the prosecution relied. As to the facts, the issues between the prosecution and defence were stark and the jury could have been reminded of them in very brief terms.

[14]The grounds of appeal against conviction are that unhappily the learned Recorder failed adequately to direct the jury as to the law or properly to summarise the evidence. On behalf of the appellant Mr Scouller submits that the convictions are unsafe because the summing-up did not enable the jury properly to understand the issues which they had to resolve.

[15]Mr Cooke, responding to the appeal, submits that this was a short and straightforward case, that the Recorder said all that was required of him and that he directed the jury in sufficiently clear terms for the convictions to be safe.

[16]The grounds of appeal against sentence are that on a proper application of the Sentencing Guideline these offences either failed to cross the custody threshold or, if they did so, merited only a very short suspended sentence.

[17]We are grateful to Mr Scouller and to Mr Cooke, who have appeared before this court as they did below, for their very helpful written and oral submissions. We have sought their assistance on the specific question of whether the transcript of the summing-up is, to the best of their recollection, an accurate rendition of that which the Recorder said. They have confirmed that it is indeed accurate.

[18]In view of the conclusion to which we have come in relation to the appeal against conviction, we propose to give our reasons for our decision briefly. This was, as we have said, a straightforward and short trial in which the issues for the jury's determination could clearly be identified. We therefore see force in Mr Cooke's submission that the jury could not have been in any doubt as to the issues which they had to decide and properly decided those issues in favour of the prosecution. Nonetheless there are, in our judgment, at least three reasons why the convictions cannot be regarded as safe.

[19]First, with all respect to the Recorder, his directions as to law were insufficient. Initially he said nothing at all about the legal ingredients of the offences charged in the indictment. He did not indicate to the jury any respect in which it was common ground that a particular finding of fact would suffice to determine a finding of guilt on a particular charge. Instead he simply said this at page 4H of the transcript:

"Now, we have got the indictment. There is no particular point (unless anybody would want to have that) to look at it again; but I think it is relatively straight-forward. You have got an exhibit sheet and you have seen that already several times ..."

[20]As to the question of inference from silence, in contrast to what both counsel had submitted to him before closing speeches and summing-up began, the Recorder gave a direction in the following unhelpful terms:

"There may be the element here that you feel that something was mentioned and not mentioned because it was going to be looked at at a later stage. These are things sometimes quite dangerous about it. You have got to look at it from the point of view: what was said? He has given an answer to the questions, effectively, that have been put forward. But the fact of the matter is, if you feel that he has not given answers now, in evidence, then you look at it from the point of view that you may decide that those points were untrue because they have been invented to support his defence. But you may only draw that conclusion if you are satisfied of three things. The prosecution case being presented at the time was such that it called for an answer. He could reasonably have been expected to mention the matters he now relies on at the time he was interviewed and the only sensible reason for not raising those matters is that he had not yet thought of them. The defence invite you not to draw any adverse conclusion from any silence. They say that he did not tell the police about certain matters because he said enough what he thought. If that is right -- fine. That is perfectly acceptable. But you have to look at that and see whether or not you take it as an explanation of innocence. In those circumstances it would not provide any support for the prosecution case."

[21]At the conclusion of the summing-up both counsel were understandably concerned. In the absence of the jury they addressed the Recorder. They courteously endeavoured to assist him with certain aspects of his summing-up. He accepted their submissions.

[22]When the jury were called back in, however, the learned Recorder gave further directions which, we regret to say, did not assist the jury. As to the legal ingredients of offences the Recorder at page 13H said this:

"Thank you, members of the jury. Just a couple of things to clarify. Remember when, you are looking at count 1 and count 2, essentially for somebody who is going to be a thief or a fraudster, look at the elements of it. It is wrong to dishonestly appropriate goods of another unless you are going to get it back. In short, it is not if it is just a loan or anything like that. So dishonestly appropriating the goods of another person is a better way, perhaps, to look at it from the point of view of both theft and fraud on count 1 and count 2. It is shorthand. But the fact of the matter is if you go through it -- for example, stole a motor vehicle naming a Volkswagen Passat, etcetera, etcetera belonging to Stephen Boateng, you will look at it any way from the point of view that that is what the allegation is. Therefore, the allegation, if made sure, would be wrong. The same as well with the fraud. Committed fraud. We all know what fraud is, in that dishonestly and intending thereby to make a gain for himself he made a false representation to the DVLA, which was false. It is (inaudible), but never mind, namely that a motor vehicle named Volkswagen Passat etcetera, etcetera had been sold or transferred to him in breach of Section 2. The point is, Mr Boateng says, well that is not right; and Mr Eisa says, well that is right. So look at it from that point of view. Dishonest appropriation."

[23]As to his direction in relation to inference from failure to mention facts the Recorder at page 14E said this:

"Just a matter for clarification, when I was noting the interviews and so on, you must look on the interviews and what the defendant said in the police station and so on. The real point, and the only point actually on this, is that he did not say at the early stage he had mentioned a receipt. But he did later. So that is a relatively straight-forward matter. We have discussed that, so that should be entirely fine."

The jury were then invited to retire again. Counsel rightly felt that they could do no more. So the jury were left to consider their verdicts.

[24]Those directions of law are, as we have said, plainly insufficient. They were expressed in terms which cannot greatly have assisted the jury, and may indeed have confused them; and a number of important aspects of the necessary directions were omitted. Mr Scouller points to particular concerns that the jury may have misunderstood that they simply had to consider whether at some stage in the relevant events Mr Eisa had done something dishonest. He further expresses concern that the jury may have misunderstood that the fact that the appellant in his first interview did not say as much as he later said in a second interview, was a failure in relation to which an adverse inference could be drawn.

[25]The second reason why we do not feel these convictions can stand is that, again with respect to the learned Recorder, his summing-up as to the facts was so diffuse and unstructured that the jury could not realistically be expected to have derived any assistance from it. As we have indicated, the important facts could perfectly properly have been summed up extremely briefly. But it was necessary, in compliance with the Criminal Procedure Rule which we have quoted above, to assist the jury by reminding them of the features of the evidence which were key to their decisions on the relevant issues, and to do so in clear terms.

[26]We regret to say that this did not happen. By way of example, we quote the following passage from page 5B of the transcript in which the Recorder reminded them about the two contentious documents:

"The agreement. You must look at it from the point of view of your assessment. It is, of course, for example, page 9, 26th October 2015 -- there seems to be some sort of either confusion or other approach on this because, of course, there are other dates. Whether or not those dates are very important in the case is a point for you. But does it assess yourself -- the dates there? We have seen all those dates. When you look through it, it is a different date here and a different date there and all the rest of it. Are the dates relevant? The fact of the matter is you consider that; and you also have to look at it in the context of what is happening here. You will see on page 10 of the VQ5 there is the Metropolitan Police Station and the keeper details, etcetera."

[27]Thirdly, we are troubled by the manner in which the Recorder reminded the jury of the handwriting evidence. As we have indicated, the expert witness had expressed differing opinions about the disputed signature on each of the two contentious documents. The jury were not reminded of the terms of her evidence at all. They were instead given what was with respect a confused version of the standard direction about expert witnesses. But the Recorder then went on, having emphasised that the expert witnesses evidence was only part of the evidence in the case, to say this:

"It is a matter for you to look at the reference signatures of Stephen Boateng and Fahad Eisa. I think I can easily rely on you to look at that."

[28]It seems to us that that part of the summing-up was at least capable of being understood by the jury as an indication to them that they were at liberty to play the part of experts themselves, and to form their own opinions about a comparison of the reference and the disputed signatures. Counsel have confirmed in their oral submissions today that it had been no part of the case for either the prosecution or the defence to suggest that such an approach could or should be adopted. To consider directing the jury about such an approach would be to enter on very dangerous territory. If it could properly be done at all, which we doubt, it would have required the most careful direction. This is perhaps an illustration of one of the submissions which Mr Scouller made to us, that there was no clear indication to the jury of which parts of the summing-up constituted directions which they were bound to obey, and which part constituted reminders of evidence about which they were free to make their own decisions.

[29]In those circumstances and for those reasons, we are bound to conclude that these convictions are unsafe. We do so notwithstanding our ready agreement with Mr Cooke that this was a straightforward case in which the issues could and should have been made clear. But for the reasons which we have summarised, and which we do not think it right to amplify further, we cannot be satisfied that the jury were safely left to consider the important issues.

[30]It follows that these convictions must be quashed. The application for leave to appeal against sentence therefore falls away. We should record that from a reading of the papers our very provisional view was that it seemed unlikely that any arguable grounds of appeal against sentence would be made out. But we have not heard submissions upon it, in view of the conclusion which we have reached about the convictions, and we therefore say no more in relation to sentence.

[31]In those circumstances, we grant leave to appeal against conviction, we allow the appeal and we quash the convictions.

[32]Mr Cooke, where does that take us?

[33]MR COOKE: I am instructed not to ask for a retrial.

LORD JUSTICE HOLROYDE: We can, I think, understand why that may be so. Thank you both. We are, I repeat, grateful to you for the help you have given this court, and we have endeavoured to make clear in our judgment that we feel you did all you properly could do in awkward circumstances in the court below.