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Cite as: [2015] EWCA Crim 1617

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Neutral Citation Number: [2015] EWCA Crim 1617
No. 2014/05267/B2

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL
30th July 2015

B e f o r e :

LADY JUSTICE SHARP DBE
MR JUSTICE OPENSHAW
and
HIS HONOUR JUDGE PEGDEN QC
(Sitting as a Judge of the Court of Appeal Criminal Division

____________________

R E G I N A
- v -
MAJID KHAN ASHIQ

____________________

Computer Aided Transcription by
Wordwave International Ltd trading as DTI
165 Fleet Street, London EC4A 2DY
Telephone No: 020 7404 1400; Fax No 020 7404 1424
(Official Shorthand Writers to the Court)

____________________

Miss A Levitt QC appeared on behalf of the Appellant
Mr S Wilshire appeared on behalf of the Crown

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Thursday 30th July 2015

    LADY JUSTICE SHARP:

  1. This is an appeal against conviction and sentence brought with the leave of the single judge.
  2. On 13th October 2014, following a trial in the Crown Court at St Albans before His Honour Judge Plumstead and a jury, the appellant was convicted of conspiracy to blackmail (count 1). He was sentenced to seven years' imprisonment.
  3. A co-accused, Lyndon Hudson, was acquitted on count 1. He had pleaded guilty, after the jury were sworn, to one count of transferring criminal property (count 2), for which he was sentenced to 18 month's imprisonment. In addition, he was sentenced to a consecutive term of nine months' imprisonment for breach of a suspended sentence order imposed on 7th February 2013 for possessing a prohibited weapon.
  4. Four grounds of appeal were advanced before the single judge by Miss Levitt QC (who was not trial counsel). These were: (1) the judge failed to direct the jury as to the mens rea required for conspiracy to blackmail; (2) the judge failed to sum up the defence case adequately or at all; (3) the judge reversed the burden of proof by directing the jury that it was for the appellant to satisfy them that the demand was not unwarranted; and (4) the judge failed to give the jury any direction as to how to approach the conspiracy in the event that they were unsure of the alleged co-conspirator's guilt.
  5. The single judge granted leave in the following terms:
  6. "1. I do not consider that the judge's direction relating to executory intention was inadequate but the [appellant] can argue that the direction relating to 'unwarranted' was misleading and did not adequately reflect the terms of section 21(1) of the Theft Act nor properly reflect the burden of proof."

    In our view, leave to appeal has therefore been granted on ground 3 alone, though Miss Levitt expresses her intention to renew her application on all grounds refused.

  7. The facts which gave rise to the conspiracy charge were these. In November 2012 Mr Imran Malik advertised his Lamborghini for sale in Autotrader. At some point the co-defendant Hudson agreed to buy it for 95,000. Mr Malik agreed to meet Hudson in Watford. This meeting took place on 14th March 2013 in the XFS Chicken Shop in Watford. Mr Malik had expected most of the money to be transferred into his account by electronic transfer. But Hudson, who had with him a man called Weekes, had brought the 95,000 or thereabouts in a holdall. Mr Malik was told by Hudson that the car would be put into the name of a car dealer specialist called Shak, who ran a company called Shak's Specialist Cars.
  8. Mr Malik said that, in order to check that the cash was genuine, he wanted to pay the money into a bank before handing over the Lamborghini. He, Hudson and Weekes went to Barclays Bank in Watford to do so. When they arrived at the bank, Hudson stayed outside because he had some concerns about the presence of cameras. The staff became suspicious about the provenance of such a large sum of cash. The police were called. When they arrived they arrested the three men, seized Mr Malik's telephones, the money and the Lamborghini.
  9. The men later met at the train station after their release in the early hours of the morning. They agreed to complete the deal when their goods were returned to them.
  10. Mr Malik's Lamborghini was eventually returned to him on 19th April 2013. However, the cash was not returned to Hudson on the ground that it was criminal property which Hudson was trying to launder by buying the Lamborghini. This formed the basis of count 2 against Hudson.
  11. Before the car was returned to him, Mr Malik received a series of calls demanding that the car be handed over as he had been paid for it. It was the Crown's case that these were steps taken by Hudson and those acting on his behalf, including the appellant, to get back the money or its equivalent, namely, the Lamborghini.
  12. Towards the end of March 2013 Mr Malik's phone was returned to him by the police. He had some missed calls. He called the number back and discovered that they were from Shak. Mr Malik explained to Shak that he was trying to establish to the police that the car was his. Shak said that Hudson was trying to do the same in relation to the cash.
  13. On 3rd April 2013 Mr Malik received a Facebook message from a company called Swift Car Hire. It asked him to give the company a call, which he did. He spoke to a man called Ali about the failed car sale. Ali proposed a meeting between Mr Malik and Hudson. Mr Malik said that there was no need for a meeting.
  14. On 14th April 2013, at about 9pm, Mr Malik received a call from a man calling himself Lex. Mr Malik thought this was, in fact, Hudson. Lex appeared to be under the impression that Mr Malik's car had been returned to him and explained in a forceful manner that Mr Malik had been given the cash and that the car was now Hudson's. Lex said that if Mr Malik was not willing to negotiate he would send some of his friends round to see Mr Malik. This was, according to the Crown, a demand made with menaces and was adduced as evidence to support the conspiracy charge against both defendants. The call was made from a number ending 529, and there was cogent evidence linking that number to Hudson.
  15. After the call ended, Mr Malik immediately rang his solicitor for advice. He told him that he had received threatening calls. The solicitor advised him to record any subsequent calls. While he was speaking to his solicitor on the phone, Mr Malik received another call. This he recorded and immediately afterwards rang his solicitor to tell him that he had done so.
  16. A short time later, Mr Malik contacted the police and handed to them a recording of the call. The recording was played to the jury at the appellant's trial and they had a transcript of what was said. An analysis of phone records showed that this call had come from a number ending 400. At trial cogent evidence was given linking this number to the appellant. The call was made by a man who described himself as Pakistani and who made it clear that he was calling on behalf of Lex. During the course of the conversation the man told Mr Malik that he should hand the car over. Mr Malik disputed this. The call ended with what the prosecution described, and Mr Malik certainly perceived, as a veiled threat about people "coming to see" Mr Malik and "coming to get whatever we have to get". To give the flavour of the call, we set out the following short extract:
  17. "MALE CALLER: my pal just called you, yeah? I think you just, I think we're everyone's jumping up and down brother. There's no problem whatsoever, yeah, I think you've been talking to some of my friends over there who have been trying to get you to meet us, yeah.
    MALE CALLER: Has anyone from Luton tried to get in touch with you some of our friends?
    MR MALIK: Well, not really, Lex, Lex, not really, Lex just rang me telling me that he's threatening me and he's gonna bring people down and et cetera, et cetera. So I think that's quite childish. No, I'm sorry, well no, but I'd rather have Lex back on the phone again and sort of let's discuss it again because I'm not really happy the way that he just threatened me. It's not my fault he brought down cash and I did the right thing by going, going to the bank with the money which anybody else would and of course his, and he told me afterwards that yeah he's got nothing to hide et cetera, et cetera, but I don't understand now why he's ringing me up trying to threaten me, trying to get my car off of me for free. I'm not gonna give my car for free.
    MALE CALLER: police, that's entirely up to you, but you know what, it's not a nice thing when you say 'Oh, we're going to police' you know what I mean.
    MR MALIK: What do you mean, it's not a nice thing?
    MALE CALLER: We don't have anything to do with snitches, brother, d'yah understand, yeah?
    MALE CALLER: I've got a bro, I've got family in Watford, yeah. I've not threatened you, I've not sent nobody to see you yet.
    MR MALIK: See me yet?
    MALE CALLER: See you yet.
    MR MALIK: Okay, which means
    MALE CALLER: I'm not threatening you brother, I'm not threatening you. I'm giving you a promise. Okay. Let's just leave it at that. You get whoever you want from London. You do whatever you have to do, brother, 'cos we're gonna come to get whatever we have to get. Hope you are recording now, because I've been, I've tried
    ANOTHER MALE VOICE: Ah, man, you didn't have to record that, man."
    (emphasis added)
  18. The prosecution case was that this was a call clearly designed to follow on from the call made moments before by Lex and intended to reinforce the demand made with menaces for Mr Malik to make good Hudson's loss.
  19. On 25th April 2013, Mr Malik's friend, Mr Ahmad was at the XFS Chicken Shop in Watford when he received a visit from three large men, one of whom said: "Hello mate, you know what this is about. It's about the hundred grand, about the Lamborghini. This isn't going to go away." Mr Ahmad was given a phone number. After making reference to Mr Ahmad's family and knowing where they all lived, the men left. CCTV footage of this visit was later handed to the police.
  20. Mr Malik was subsequently given the phone number by Mr Ahmad. He telephoned it and recorded what was said. This recording, too, was later handed to the police. A male could be heard telling Mr Malik that the people who had lost their money wanted it back. He appeared to think that the money had gone to Mr Ahmad. The man talked about the debt having been passed on and that people had been watching Mr Malik and Mr Ahmad for several weeks.
  21. Mr Malik arranged to meet the people he had spoken to and he did so the following day at Bar Lula's in Brent. At this meeting, which Mr Malik managed to part-record, he was told that the people he had met had bought the debt owned by Mr Malik for 50,000. Mr Malik said that the men were very aggressive and told him that he was lucky not to have been shot. Mr Malik was given until midday the following day (26th April) to find the 50,000.
  22. The following morning Mr Malik went to the police. He handed over the recordings we have mentioned.
  23. Hudson was arrested the next day. He claimed that he had told a lot of people what had happened and that someone else must have tried to get the money out of Mr Malik.
  24. The appellant was arrested on 5th June 2013. He refused to speak. He remained entirely silent during a second interview on 15th August 2013. The prosecution said that this was because he did not want any comparison to be made between his voice and that to be found on the recording of the 14th April 2013 call.
  25. The appellant's Defence Case Statement was not much more informative. It made no admissions as to the prosecution's case. It denied that the appellant had conspired to blackmail Mr Malik. It denied that the appellant had any knowledge of Ali or Swift Cars. It denied that he had any part in arranging a meeting between Mr Malik and others at Bar Lula's; but it was silent about the call of 14th April 2013, except to indicate that objection would be taken to the voice analyst the prosecution intended to call to prove that the call had been made by the appellant. In fact, no admission was made that the appellant had made the 14th April call until partway through the prosecution case, and some time after Mr Malik had given his evidence. The admission was made through the appellant's counsel and confirmed by a signed admission dated 6th October 2014.
  26. Further, although Hudson gave evidence in his own defence (in which he denied making a call on 14th April but said that it had been made by Lex Weekes, and also denied knowing that the appellant had made any call) the appellant himself did not give evidence. Thus, at its highest, the appellant's case could only be that he accepted making the call, but he provided no explanation for his doing so or the context in which the call was made.
  27. Miss Levitt has drafted grounds of appeal and a skeleton argument in support which sets out in considerable detail the case for the appellant on this appeal. We consider the points made in it are accurately summarised in the grounds to which we have already referred. They need little amplification. It is to those grounds we now turn.
  28. We deal first with ground 3. During the course of his summing-up the judge said:
  29. " the law provides that even if you have reasonable grounds for making a demand you have to be able to persuade people that the use of menaces is a proper method of reinforcing that demand. So even if the people in this case were entitled to expect money or a car from [the complainant], they could only justify that if they could persuade you that the demand was one which was proper to enforce with menaces."
  30. Section 21(1) of the Theft Act 1968 provides as follows:
  31. "A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief
    (a) that he has reasonable grounds for making the demand; and
    (b) that the use of the menaces is a proper means of reinforcing the demand."
  32. It is right to say, as the prosecution accepts, that the direction given by the judge, if looked at in isolation, might have suggested that the appellant bore the burden of proving both limbs of section 21(1), that is, (a) and (b). Two points need to be made about this, however. First, it is well established in relation to the commission of the substantive defence that it is for the defendant to raise the issue of his belief, and that once the issue is raised, it is for the Crown to negative it before the jury can be sure that the demand was unwarranted. However, in our judgment, it is only necessary to give the jury a direction on the issue if there is a live issue raised before them, by evidence, as to whether a defendant did believe that he had reasonable grounds for making the demand and did believe that the use of menaces was the proper means for reinforcing it. See, for example, R v Harvey and Others (1981) 72 Cr App R 139, where, in giving the judgment of the court, Bingham J (as he then was) said as follows:
  33. "If it was necessary to give a direction on this aspect of the case at all (and in the absence of any evidence by the defendants as to their belief we cannot think that there was in reality any live issue concerning it) the jury should have been directed that the demand with menaces was not to be regarded as unwarranted unless the Crown satisfied them in respect of each defendant that the defendant did not make the demand with menaces in the genuine belief both (a) that he had had reasonable grounds for making the demand; and (b) that the use of the menaces was in the circumstances a proper (meaning for present purposes a lawful, and not a criminal) means of reinforcing the demand."
    (emphasis added)
  34. In the instant case there was no such live issue raised by the appellant on the evidence. As we have said, nothing was said in interview or in his Defence Case Statement about the call made by the appellant; nor did the appellant give evidence at trial. Miss Levitt, in her written argument set out, and in her oral argument referred to various passages in transcript of the cross-examination of Mr Malik. However, we take the view that the answers given by Mr Malik could not bite on the question as to what the appellant's subjective belief was or was not, and that they take the case on this issue no further. As we have recounted, at the stage at which Mr Malik was being cross-examined, no admissions had yet been made that the appellant had made the critical call. The position, therefore, was that no positive case was made at trial on this issue and there was no evidence given to support any positive case. In our view this must be borne in mind when considering the materiality of the judge's misdirection as to the safety of the appellant's conviction.
  35. Secondly, the passage from the summing-up on which Miss Levitt has focused her submissions should not be looked at in isolation because it was not given in isolation. It was part of a summing-up in which the judge made clear to the jury on numerous occasions, and correctly, where the burden lay of proving the particular issues that were raised by the evidence, namely, on the prosecution: see, for example, volume I, pages 1G, 15B, 16D-E, and 16G-17A.
  36. In the circumstances we find unpersuasive the submission that the judge's direction to which we have referred renders the conviction unsafe.
  37. In her skeleton argument Miss Levitt made a further point which was that in the context of the judge's direction on the inference that could be drawn from the appellant's silence, the materiality of the judge's misdirection was reinforced. We do not agree. In our view, the judge's direction on the inference to be drawn from the appellant's silence was correct. It was given in conventional terms, and it does not support the submission that is made.
  38. As to the other grounds, in agreement of the single judge, we do not consider them to be arguable. Ground 1 asserts that the judge failed to give the jury a proper direction on the mens rea required for conspiracy to blackmail. As Miss Levitt accepted during the course of her submissions, if the court was not with her on ground 3, then this drew the sting of the complaint in relation to ground 1.
  39. But in any event, the argument advanced seems to us to be based, in part at least, on two premises which we do not accept, namely, as already indicated, that the judge was obliged to give the jury a direction on the section 21(1) (a) and (b) limbs when this was not a live issue at trial; and further, that the judge was obliged to direct the jury that an agreement entered into by the appellant specifically entailed an agreement to telephone Mr Malik.
  40. The short point is that the telephone call was evidence from which the jury were entitled to infer that the appellant had entered into a conspiracy to blackmail. They were also entitled to regard it as an overt act committed in pursuance of the conspiracy. When the summing-up is read as a whole, we do not accept, as is contended, that the jury could have been under the misapprehension that it would have been sufficient for the prosecution to prove that the appellant merely agreed to make an innocuous telephone call, but then lost his temper and went further than he had intended at the time he entered into an agreement to make the call, or that the jury may have been left with the impression that the appellant was guilty of conspiracy to blackmail merely because he had called the appellant to discuss a failed business deal (suggestions made by the appellant's counsel, but not supported by evidence).
  41. In our view, the jury were given a conventional and adequate direction on conspiracy and what the prosecution were required to prove.
  42. Ground 2 asserts that the judge failed to sum up the defence case adequately or at all. We do not consider that there is any arguable merit in this ground. In the absence of any evidence from the appellant at all, the high point of his case was his counsel's argument, and it was no more than that, as to what interpretation could be placed on the words which the jury had in transcript form, and could listen to. We have already made reference to that argument. The judge reminded the jury of it. He was not obliged to go further, in our view.
  43. Ground 4 asserts that the judge failed to direct the jury on the approach to conspiracy in the event that they were unsure of the co-conspirator's guilt. Miss Levitt submits that the prosecution case was that the co-accused Hudson and the appellant had conspired together, but that others were also involved. She says that there was copious evidence of Hudson's involvement in a conspiracy with others (other than the appellant), but that the converse was not the case. In particular, there was nothing to link the appellant with the events of 25th and 26th April 2013; that in those circumstances the conviction of the appellant, but the acquittal of Hudson, is "troubling"; and that the jury should have received a careful direction on the possibility of there being more than one conspiracy agreement.
  44. We think that this argument, though carefully and thoroughly mounted by Miss Levitt, as with the other grounds of appeal, is detached from the reality of the case before the jury. As Miss Levitt acknowledges, there was ample evidence that the complainant was the victim of a conspiracy to blackmail, and the central issue was whether the appellant was a party to it. The jury had the recording of the call, acknowledged late in the day to have been made by the appellant, and could make up their own minds about its meaning and import. They were entitled to conclude that it contained an unpleasant and veiled threat as the prosecution alleged, and that it had been made pursuant to an agreement to blackmail, not least because it was made by somebody who Mr Malik did not know, who did not identify himself, and because it followed directly on from the call made by Lex, about which the appellant acknowledged he knew during the course of the call itself. It was open to the jury to accept Hudson's evidence given from the witness box that the Lex call was not made by him but by Weekes. All that could be said about Hudson's acquittal on count 1 was that the jury were not sure that he was the person who made the Lex call, or was a party to a conspiracy. It did not follow, however, that the jury could not be sure that the call made by the appellant was not made pursuant to an agreement with persons unknown to blackmail Mr Malik.
  45. We think that the judge fairly set out for the jury the essential evidence and the law that had to be applied to that evidence. The one misdirection identified would not, in our judgment, have materially misled the jury in their task in what was a relatively straightforward case. It might have been the case that the appellant could have been charged with the substantive offence of blackmail, given the content of the telephone call, and it would certainly have been preferable had the jury been given simple written directions on the law and a route to verdict. Nonetheless, we are satisfied that the appellant's conviction is safe. This appeal against conviction is accordingly dismissed.
  46. We turn to the appeal against sentence. There are no guidelines for the offence of blackmail. It is, as Miss Levitt accepts, a very serious offence; it almost invariably results in a custodial sentence of some length.
  47. Miss Levitt has helpfully referred us to a number of decisions of this court which indicate that the range of sentences for such an offence is a fairly wide one: see, for example, Attorney General's Reference Nos. 92 and 93 of 2014 [2014] EWCA Crim 2713.
  48. Miss Levitt submits on the facts of this case that the following matters are material: the appellant was not the instigator of the offence; his role was limited to one phone call; the threats were implicit rather than explicit; there was no evidence of planning; no actual violence was used; the culpability of others involved was greater; the threats did not involve any payment; and the complainant (Mr Malik) could not be described as vulnerable.
  49. We think, however, that the judge was entitled to attach significant weight, as he did, to the appellant's previous convictions. There was a conviction in 2008 for conspiracy to pervert the course of justice. In broad terms, the appellant had tried to derail a murder prosecution by offering payment to a witness, for which the appellant was sentenced to five years' imprisonment. There was also a conviction in 2005 for using a false instrument, which involved providing false documentation to a magistrates' court.
  50. The judge said that the appellant's third conviction had some similarities: he had tried to deceive a court for his own purposes; he had tried to derail a prosecution for his own and other purposes (the defendant charged with murder was the appellant's brother); and he had tried to terrorise a hard-working man out of his money. The judge said that the appellant had put himself into the serious rank of professional criminals, and that his previous convictions were a seriously aggravating feature.
  51. We consider that the judge was entitled to take that view. We have borne in mind in this context the nature of the telephone call which the appellant made and the threats which it undoubtedly contained. The sentence was a severe one, but we are unable to say that it was either manifestly excessive or wrong in principle.
  52. Accordingly, the appeal against sentence is also dismissed.
  53. We should record our gratitude to Miss Levitt for her helpful written submissions, which were orally expanded upon before us today. Thank you very much.


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