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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Luttrell & Ors, R v  EWCA Crim 1344 (28 May 2004)
Cite as:  EWCA Crim 1344
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200301899/C2, 200301949/C2, 200301957/C2
200302112 C2, 200302141/C2, 200304052/C2
COURT OF APPEAL (CRIMINAL DIVISION)
London, WC2A 2LL
B e f o r e :
(THE RIGHT HONOURABLE LORD JUSTICE ROSE)
Mr Justice Andrew Smith
Mr Justice Fulford
Gerrard Francis LUTTRELL
Rajinder Singh JHEETA
Nicholas BEAGLEY (AKA RICHARDSON)
Rajesh Vijay KESHWALA
Jagdev Singh SHERGIL
Manjinder Singh DHALIWAL
David Sydney HAMBERGER
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr G Cockings appeared on behalf of Jheeta
Mr A Turton appeared on behalf of Beagley(Aka Richardson)
Mr J N Davies appeared on behalf of Keshwala
Mr P Katz QC & Mr M Khamisa appeared on behalf of Sahota
Mr J Guthrie QC appeared on behalf of Dawson
Mr P Griffiths QC appeared on behalf of Hamberger
Mr S C Russell-Flint QC & Miss H Norton & Miss C Laing appeared on behalf of the Crown
Crown Copyright ©
The Vice President:
"[Expert witnesses'] duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert. "
i) whether a special warning was necessary in relation to the potential dangers of this evidence;
ii) if a special warning was called for, its terms and content; and
iii) the sufficiency of the directions given.
"I feel that it is best to direct you, even if you accept Miss Rees' evidence, the safe course for you is to use her evidence as confirmation only in accordance with what Professor Summerfield said seeing the absence of objective testing since 1998. That means that you should not use Miss Rees' evidence, even if you accept it, as the primary basis for a finding of guilt in the case of Mr Luttrell. That is not in any way, you understand, to cast aspersions on Miss Rees' skill or accuracy, it is simply that having regard to the absence of up-to-date testing and in the light of Professor Campbell's views as well as Professor Summerfields it may be unsafe to rely on that sort of evidence for proof on its own of a criminal offence. And as already mentioned, of course, what one has to bear in mind, as I said before, is that forensic lip reading is very much in its infancy so it is better to be safe than sorry".
That was a cautious and wise direction in this case. But we comment, in passing, that such a direction will not in our judgment be necessary in by any means all cases where the prosecution rely on lip reading evidence. It is highly unlikely that lip reading evidence will ever stand alone because, unless there is other evidence, it is unlikely that a video recording will ever have been made. But there is in our judgment no reason in principle why lip-reading evidence should not establish a prima facie case. The usual principles will apply in this regard, and the judge will need to consider the strengths and weaknesses of the evidence, particularly in the light of the matters that we have set out above. As we have already indicated, the directions will be fact dependent..
"If you are sure that Miss Rees did spontaneously come up with the word "Raj" and that she is right, then that clearly contradicts Mr Luttrell's sworn assertion that he knew no Raj, had never come across a person called Raj and did not use that word in conversation then or at all. It would demonstrate, if that be right, a knowledge of Raj Sohata that Mr Luttrell has been at pains in court to deny, and so long as you are satisfied that there is no innocent explanation for what in those circumstances must be a lie, then that is capable of being evidence going to confirm guilt. If, on the other hand, you are not sure that the word Raj was used, whether it be by a mistake or in some way unwittingly or otherwise being suggested to Miss Rees, being put into her mind, if you think that is or may be the case, then that would presuppose serious unreliability in Miss Rees's transcript. If that is your conclusion, you should ignore the lip reading evidence altogether, since, frankly, there would be no way you could be sure of any other part of that transcript. So that may be an approach which appeals to you, or it may not, members of the jury. It is merely my suggestion and I make absolutely clear that the directions I gave you at the outset in regard to this expert evidence holds good and it is a matter entirely for you what you make of it at the end of the day".
The direction which the judge had earlier given appears at page 3C of the same volume:
"Expert evidence is permitted in a criminal trial to provide you with information and opinion which is within the witness's expertise but which is likely to be outside your experience and knowledge. It is by no means unusual for expert evidence to be called, although it is fair to say, as you will have gathered from the evidence in this case, lip reading evidence is, at least as far as the court is concerned, a newish area of expertise and is fairly unusual. It is important that you should see this expert evidence in its proper prospective, which is that it is before you as part of the evidence as a whole to assist you in regard to one particular aspect, namely what was said at the meeting on 23rd May. A witness called as an expert is entitled to express an opinion and you are entitled, and would no doubt wish, to have regard to that evidence and to the opinions expressed by the experts when coming to your own conclusions. You should bear in mind that if, having given the matter careful consideration, you do not accept the evidence of the experts or any of them you do not have to act upon it. It is for you to decide whose evidence and whose opinions you accept, if any. You should remember that this evidence relates only to part of the case and whilst it may be of assistance to you in reaching a verdict you must reach your verdict having considered all the evidence".
"As the evidence showed, you were tough negotiators, and not much was in general knocked off the true market value. There was, of course, the VAT element on top. Such was the high price that you obtained that innocent and respectable businessmen were able to purchase in good faith and then found themselves in possession of, or having sold on stolen goods.
In effect, there was a fully organised, sophisticated and professional business, run on commercial lines with a sham company, fraudulent invoices, a warehouse and place of business, and even an accountant. Dishonest activities were muddled in with honest dealings and the operation might never have been uncovered had it not been for resourceful and skilled surveillance by the police."
"I have considered the papers in your case and your grounds of appeal and have decided that your application must be refused. I accept that on a plea of guilty 10 years was a severe sentence. But the judge (who had a detailed knowledge of the case) took the view that you were the prime mover in a conspiracy involving the handling of goods worth £7 million. He was satisfied that you or someone acting for you was the liaison with the primary criminals who carried out the armed and other robberies. As your counsel accepts, most of the aggravating factors mentioned in Webbe were present in your case. The judge was in my view justified in saying that you merited a sentence near the maximum. You were entitled to credit for your plea of guilty. But you instructed your legal advisors to take PII and other points including a Newton hearing whether "offence 9" was a genuine robbery (as it was found to be). In the circumstances I do not think you were entitled to the full discount. All in all I am not persuaded that your sentence was manifestly excessive."
THE VICE PRESIDENT: For the reasons given in the judgment handed down the appeal of Dawson and Hamberger in relation to conviction are allowed and their convictions quashed. The appeal of Luttrell against conviction is dismissed. Beagley's renewed application in relation to conviction is refused and the renewed applications of all defendants, in relation to sentence are refused. As to the retrial of Dawson and Hamberger, paragraph 75 gives certain directions subject to possible submissions to the contrary. Are there any submissions to the contrary?
MR GUTHRIE: Not on behalf of Dawson.
MR GRIFFITHS: Nor on behalf of Hamberger.
MISS LAING: Nor on behalf of the Crown, my Lord.
THE VICE PRESIDENT: Everyone is content that the retrial take place at Lewis Crown Court. There is no reason why it should not. The other direction we give, for everybody's benefit, that the new indictment be preferred within 28 days and the defendants will be re-arraigned within 28 days thereafter. We shall make a representation order for leading and junior counsel and solicitors for each of the defendants. Then Mr Gutherie, you have an application for bail?
THE VICE PRESIDENT: Very well, we shall grant bail to Dawson on condition that he resides at 18 Marlow Road, Worthing. That he does not contact Crown witnesses or make any attempt to do so, and that he surrenders his passport, if indeed he has not already done so. Similarly, in relation to Hamberger, we shall grant him bail on condition that he resides at 22 Woodbridge Road, Barking; that he does not contact or seek to contact the Crown witnesses and that he surrenders his passport, if he has not already done so. Is there anything else? Thank you. We shall rise and reconstitute.