Iqbal v Director of Public Prosecutions [2004] EWHC 2567 (Admin)

Case No CO/3492/2004[2004] EWHC 2567 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 22 October 2004
Strand
London WC2
B E F O R E:
MR JUSTICE COLLINS
and
MR JUSTICE SILBER
Between
MOHAMMED IQBALClaimant-v-
Between
DIRECTOR OF PUBLIC PROSECUTIONSDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Reporting Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR FENHALLS (instructed by Messrs Pictons, Milton Keynes) appeared for CLAIMANTMR SINGER (instructed by the Crown Prosecution Service) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SILBER: Mohammed Iqbal appeals by way of case stated against a decision of the Thames Valley Justices sitting at the Milton Keynes Magistrates Court on 19th December 2003 by which they convicted the appellant of handling stolen goods in the form of a laptop computer.[2]The facts which were found by the magistrates, in so far as they are material to this application, are that P.C. Donohoe and P.C. Travers were on duty in Milton Keynes on the afternoon of 20th January when they stopped a red Escort car, which contained two males. The vehicle, which was owned by the appellant, had tried to avoid the officers and it was driven by the appellant with a Mr Naim as the front seat passenger. P.C. Donohoe found a laptop in a black case on the back seat of the car and both the appellant and Mr Naim said that the laptop computer belonged to the other when P.C. Donohoe questioned them about the ownership of it. During that questioning, the appellant had not been cautioned and the magistrates found that P.C. Donohoe did not form the suspicion that the laptop was stolen until the appellant and his passenger had each stated that it belonged to each other.[3]The appellant, at the time when the laptop computer was found to be missing, had been employed as a security guard at Daimler Chrysler, but there was no evidence to show in which of the sites in Milton Keynes, the appellant was based. The computer had been, according to the findings of the magistrates, taken from the Information Technology Division at the Linford Wood site of Daimler Chrysler before the office manager conducted a search for it. It was also shown that the security guard on duty at the site had a security swipe card and that that card was used during the early hours of the morning to gain access to both the Information Technology and the Insurance Divisions which had adjoining access, with free access from one to the other.[4]The magistrates also found the laptop stolen from Daimler Chrysler was in the possession of the appellant, who gave conflicting accounts to the police in two separate interviews as to how he acquired th laptop. The appellant did not give any evidence at his trial.[5]The questions which have been raised by the magistrate for the opinion of this court are:
"(a) Whether we were correct in admitting evidence of the pre-caution conversation at the roadside, during which the appellant and his passenger each told the police officers that the laptop computer found in the car belonged to the other? (b) Whether there was evidence on which we could find that the laptop computer had been stolen from Daimler Chrysler? (c) Whether, in all the circumstances, there was evidence on which we could find the appellant guilty of the offence of receiving stolen goods?"
[6]Mr Singer, who appears today as he did at the hearing before the magistrates for the respondent, accepts in relation to issue (b) that there was insufficient evidence to establish that the laptop found in the claimant's possession belonged to Daimler Chrysler. Thus by that concession that question has to be answered in the negative and I will not say any more about it.[7]Turning to the first question, the appellant's submissions are that the pre-caution conversation should not have been admitted under a combination of section 78 of the Police and Criminal Evidence Act and also the relevant Code of Practice. Section 78(1), as is widely known, enables a court to refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."[8]In order to show that it would be unfair to admit this evidence, Mr Mark Fenhalls, who appears for the appellant, points to Code C of the Codes of Practice which says at paragraph 10.1 "A person whom there are grounds to suspect of an offence, must be cautioned before any questions about an offence, or further questions if answers provide the grounds for suspicion, are put to them if either the suspect's answers or silence (ie failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in prosecution." In my view the need for a caution had not been triggered when P.C. Donohoe initially questioned the appellant because, as the magistrates explain, they formed the opinion that P.C. Donohoe did not form the suspicion that the laptop computer was stolen until the appellant and his passenger had each said it belonged to the other. The magistrates found that P.C. Donohoe was trying to establish the ownership of the laptop computer at that stage and there was no requirement for the appellant to be cautioned. In my view that was a correct finding that was open to them as he had found that P.C. Donohoe was questioning the appellant at the roadside before he had formed a suspicion.[9]That takes us on to the third question which was, as I have indicated, whether in all the circumstances there was evidence on which they could find the appellant guilty of the offence a receiving stolen goods. As I have already explained, it is accepted by the respondent that there was insufficient evidence to establish that the laptop found in the claimant's possession belonged to Daimler Chrysler. Mr Singer's response to that is that the ownership of the goods is irrelevant. He has drawn our attention to Rule 6(1) of Schedule I to the Indictment Acts 1915 which states that:
"The description of property in a count in an indictment shall be in ordinary language and such as to indicate with reasonable clearness the property referred to, and if the property is so described it shall not be necessary (except where required for the purpose of describing an offence depending on any special ownership of property or special value of property) to name the person to whom the property belongs or the value of the property."
He also relies on the decision of the Court of Appeal (Criminal Division) in R v Deakin [1972] 3 All ER 803 where on the facts of that particular case it was held that the averment of ownership was not a material averment.[10]In my view whether or not an assertion about the ownership of property is material will, for the purpose of applications like the one with which we are today concerned, depend on how the case has in fact been conducted below. It is clear from reading the Case Stated in this case that a fundamental feature of the case was the allegation that this laptop belonged to Daimler Chrysler. The respondents called the office manager of the Daimler Chrysler premises, Miss Cathy Schweizer, who gave evidence in relation to first the disappearance of a laptop and second the access which the appellant would have had to the places where the laptop was stored. Furthermore, when the police questioned the appellant, he was questioned at length about his duties as a security guard and what access he would have had to this particular computer. In other words, this was a case in which the ownership of the computer was an integral part of the prosecution case. It is not therefore surprising, in the light of the limited evidence showing that the computer found in the appellant's car belonged to Daimler Chrysler, that the solicitor then acting for the appellant made a submission of no case to answer and when unsuccessful on that resolved not to call his client. Any legal adviser at that stage would have been quite entitled to take the view that the prosecution was making an averment which was of importance to their case and which was that the computer belonged to Daimler Chrysler and second if he was satisfied that there was no admissible evidence that it was, it was perfectly correct for him not to call his client.[11]The suggestion is then made by Mr Singer that the ownership of the computer was immaterial. I do not agree because by relying as I have indicated in the way that the respondent did on Chrysler Daimler's ownership of the computer, the appellant would be seriously prejudiced if the conviction could now belatedly be upheld on the basis that this was a computer of a person unknown.[12]The first reason for that is, as I have indicated, that the appellant's legal advisers would have been quite entitled to advise him not to give evidence because the prosecution were relying on a material averment, namely the ownership of the computer in the hands of Daimler Chrysler, which they had been unable to prove. Second the prosecution invited the magistrates to draw an inference under section 35 of the Criminal Justice and Public Order Act 1994 from the failure of the appellant to give evidence. That section only comes into play if a case against the defendant is sufficiently strong. In my view that point had not been reached in this case because of the lack of evidence to show that the laptop belonged to Daimler Chrysler, which was, because of the way the prosecution presented the case, a material averment. The third reason why I consider that it would not be fair to look on this case as being one where the prosecution could succeed on the basis of an averment that this was a theft from persons unknown, is that the respondents in this case relied in front of the magistrates on the doctrine of recent possession. That doctrine entails proof that there had been a recent theft which in this case must have been from Daimler Chrysler but, as I have already indicated, there is no evidence on that. Thus, the magistrates would have been lulled, and in my view were lulled, into thinking that the doctrine of recent possession was relevant to this case, by reason of the theft from Daimler Chrysler, which was a view to which they were not entitled to come.[13]Thus in my view this is a case in which the magistrates could not have found the appellant guilty of the offence which was charged. Thus I answer the questions as follows: In answer to (a) whether we were correct in admitting evidence of the pre-caution evidence at the roadside during which the appellant and the passenger each told the police officers that the laptop found in the car belonged to the other, the answer must be "yes". The answer must be in the negative to the two remaining questions which were "(b) whether there was evidence on which we could find the laptop computer had been stolen from Daimler Chrysler; and (c) whether in all the circumstances there was evidence on which we could find the appellant guilty of the offences of receiving stolen goods". To that extent the appeal is allowed.

MR JUSTICE COLLINS: I agree.

[15]MR FENHALLS: My Lords, the appellant is publicly funded. There is no application.

MR JUSTICE COLLINS: You want an order out of central funds, do you not?

[17]MR FENHALLS: Yes, please. As I understand my Lords' position there is no question of any remittal?[18]MR JUSTICE COLLINS: No, we are allowing the appeal and the result of that will be that his conviction disappears.[19]MR FENHALLS: I am obliged, my Lord.

MR JUSTICE COLLINS: Was he fined?

[21]MR FENHALLS: He was given a community punishment order. I do not know how much or little he did.

MR JUSTICE COLLINS: Thank you both very much.