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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 >> Khan & Ors v R  EWCA Crim 531 (14 March 2008)
Cite as:  2 Cr App R 13,  Crim LR 641,  2 Cr App Rep 13,  EWCA Crim 531,  3 All ER 502
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200706245B3, 200705902B4, 200704358D2, 200702269B3
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Keen QC at Sheffield Crown Court (Khan T20067477, Hanif T2006 7398 and Younas T20067477)
His Honour Judge Thorn at Hull Crown Court (Michael Arshad Khan) T20060430
His Honour Judge Darwall-Smith at Bristol Crown Court (Lewthwaite) T20077206
His Honour Judge Roberts at Liverpool Crown Court (Hill)T20067853 and T20061512
His Honour Judge Mott at Worcester Crown Court (Cross) T20057171
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
SIR IGOR JUDGE PRESIDENT OF THE QUEENS BENCH DIVISION
THE HONOURABLE MR JUSTICE SILBER
| Bakish Alla Khan and Others
|- and -
Mr D.F Hughes for the appellant Bakish Alla Khan
Mr M. George for the appellant Hanif
Mr H. Spooner for the applicant Younas
Mr S. Green for the applicant Michael Arshad Khan
Mr I. Halliday for the applicant Lewthwaite
Mr W. Rickarby for the applicant Cross
Mr A. Vollenweider for the applicant Hill
Hearing dates : 29 and 30 January 2008
Crown Copyright ©
Lord Phillips of Worth Matravers CJ :
"1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."
"40…according to the constant case law of the Convention organs, the existence of impartiality must be determined according to a subjective test, namely, on the basis of a personal conviction of a particular judge in a given case – personal impartiality being assumed until there is proof to the contrary.
41. In addition, an objective test must be applied. It must be ascertained whether sufficient guarantees exist to exclude any legitimate doubt in this respect. Even appearances may be important: what is at stake is the confidence which the court must inspire in the accused in criminal proceedings and what is decisive is whether the applicant's fear as to lack of impartiality can be regarded as objectively justifiable." Gregory v United Kingdom (1997) 25 EHRR 577 at p. 587."
"…it is not merely of some importance but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" R v Sussex Justices, ex p. McCarthy  1KB 256 at p. 259 per Lord Hewart CJ."
"Even a guilty defendant is entitled to be tried by an impartial tribunal and the consequence is inescapable" per Lord Bingham of Cornhill in R v Abdrokof and another; R v Williamson  UKHL 37 at paragraph 27.
"…we are unable to envisage any circumstance in which, an Article 8 breach having arisen from want of independence and impartiality in the tribunal, it would be possible to conclude that the conviction is safe" per Rose LJ, Vice-President in R v Dundon  EWCA Crim 621.
i) Would the fair minded observer consider that partiality of the juror to the witness may have caused the jury to accept the evidence of that witness? If so
ii) Would the fair minded observer consider that this may have affected the outcome of the trial?"
If the answer to both questions is in the affirmative, then the trial will not have the appearance of fairness. If the answer to the first or the second question is in the negative, then the partiality of the juror to the witness will not have affected the safety of the verdict and there will be no reason to consider the trial unfair.
"…the question of impartiality, actual or perceived, has to be judged from the very moment when the judge or tribunal becomes first seized of the case. It is a question which, at least in the case of perceived impartiality, stands apart from any question that may be raised about the character, quality of effect of any decision which he takes or acts which he performs in the proceedings." Per Lord Hope of Craighead in Millar v Dickson  1 WLR 1615 at paragraph 63
"A final decision in any given case about the fairness of the trial where unfairness consisting of bias is alleged can only be made on examination of the facts of the trial as a whole after its conclusion…" per Lord Carswell in Abdroikof at paragraph 69.
"It was not a case which turned on a contest between the evidence of the police and that of the appellant, and it would have been hard to suggest that the case was one in which unconscious prejudice, even if present, would have been likely to operate to the disadvantage of the appellant."(Paragraph 23)
In these circumstances Lord Bingham concluded "not without unease" that the appeal should be dismissed.
"Here there was a crucial dispute on the evidence between the appellant and the police sergeant, and the sergeant and the juror, although not personally known to each other, shared the same local service background. In this context the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions. The second appellant was not tried by a tribunal which was and appeared to be impartial." (paragraph 26).
It followed that the second appeal had to be allowed.
"There was no particular link between the court and the station where the police juror served. No important issue turned upon a conflict between police and defence evidence and there was no closer link between the police witnesses and the police juror than that they had all served in the Metropolitan Police."(Paragraph 54).
"…there are two factors which make the connection between the police and prosecution too close for comfort. One is that the victim of the alleged crime was himself a police officer and the case depended to some extent on his evidence of how the accused was searched and what was said at the time. The officers were serving in the same borough at the time of the trial although not in the same police station. Another is that the juror was posted to a police station which committed its cases to the Crown Court where the case was tried. Officers in his station will have had regular dealings with the CPS conducting prosecutions in the same court."(Paragraph 53)
In view of these considerations she agreed that the appeal should be allowed.
"…the police sergeant who was the alleged victim and whose evidence was relevant shared the same local service background as, and was as a result the 'brother officer' of, the policeman on the jury. Further the juror was posted to a station which committed its cases to the Crown Court of trial…Absent such considerations, I do not agree that it follows that a police officer is disqualified as a juror, even in a case of significant conflict between a police witness and a defendant." (Paragraph 83).
"It is in my opinion clear that justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long serving employee of the prosecutor"
"It is inconceivable that the Director of Public Prosecutions could sit as a juror in a case prosecuted by the CPS, irrespective of whether or not he had been personally involved in the decision to prosecute. There would be no objection to his sitting in a case prosecuted by some other person or authority. The same must apply to a CPS lawyer, who is employed to decide upon whether or not to prosecute and to conduct the prosecutions decided upon. Whether the same would apply to other CPS employees, whose role in the prosecution process or whose connection with the organisation is rather more peripheral, is a separate question which does not arise here. One could imagine that it might not apply to temporary to short term employees in junior positions unless the prosecution were brought by the office in which they served. There would, of course, be no objection to CPS lawyers or other employees serving on juries in prosecutions brought by other persons or authorities. This view is consistent with Parliament's lifting the ban upon members of the DPP's staff serving on juries, while leaving intact the common law and Convention rules against bias."
This passage speaks for itself.
The appeals against conviction of Bakish Allah Khan and Ilyas Hanif
The applications of Bakish Khan and Younas for permission to appeal against sentence
"You, Younas, Bakish Khan and Niaz Khan, were running an operation in this city, wholesaling that drug in large quantities. You are a classic criminal gang, using a variety of what you hoped were untraceable telephones, being in possession, some of you, of very large sums of money and there being traces of the drugs about your various items of property.
The offence that actually led to your apprehension namely the transmission of the six kilos of heroin, forms only a part of the offence that you have committed and you must understand that you are being sentenced for what was happening throughout August."
"You put in a scandalously ludicrous basis of plea and persisted with it before me, although at least you held back from giving evidence about it. That means that you have sacrificed any credit to which you are entitled."
Two issues arise. What credit should Younas have received but for his 'ludicrous' basis of plea and should he have lost the whole of that credit as a result of the basis of plea.
The application for permission to appeal against conviction of Martin Lewthwaite.
The application for permission to appeal against conviction of Michael Ashad Khan
"The next matter I want to mention members of the jury, is the defendant's character. You know that he is a man of no previous convictions and no caution, and you, as a matter of common sense, can take that in the defendant's favour. It works two ways, that a person of no previous convictions should clearly be regarded as being a less likely person to be disposed to acting in the way that is alleged here as compared with a convicted fraudster; and, secondly, a man of no previous convictions can be regarded as being someone whose word is more likely to be true than anybody with previous convictions, for instance, for offences of dishonesty. Those are important points of make in favour of the defendant. He has, in fact, gone further than that because he, in his evidence, has told you that he is, in effect, a pillar of the community, that he is a committed Christian and he relies on his faith as being a reason why he would not lie, that he has been a socially contributive member of society and, indeed, he has had caused to be read to you the statements of character from two Church of England clergymen. So not only is the Defence case that he is a man of no previous conviction, it is positively that he is a good person who is reliable, honest and trustworthy, and Mr. Green submits that he passes any test with flying colours as to honesty, decency and integrity.
Well, members of the jury, you know in this case - - and you will have to bear this in mind for what weight, if any, it is to you - - it cannot be ignored, however, that his defendant got into trouble in the very first place by starting a civil action in which his opponents alleged that he had concealed a secret profit which, indeed, the defendant admits, and the result was that he has become a bankrupt, and a bankrupt where the litigation that went against him - - because the allegation seemed to be proved true according to the county court record, albeit only on the proof of the balance of probabilities - - led to a judgment debt against him of £95,000, and a total bankruptcy shortfall of unsecured liabilities of just short of half a million pounds. Well, the defendant has chosen to rely upon not only his lack of previous convictions but also his good moral character, if I can put it that way. All I have to do is say: but it does not end there; you may, at least, have to consider the other aspects of this case in forming whatever view it is - - and whatever view it is, is a matter exclusively for you - - to consider as against his claims of piety and social commitment."
Michael Arshad Khan's application for permission to appeal against sentence
"I have had the opportunity to watch you and hear you during the course of his five day trial. It is perfectly clear to me that you are a completely cynical and plausible fraudster."
The judge went on to refer to the applicant's
"…deceitful and lying accounts, which varied from time to time, and shows just how persistent you were in carrying through what effectively were frauds upon your creditors."
The application for permission to appeal against conviction of Roy Andrew Cross
"It is submitted that in this case there is a real danger that the applicant did not have a fair trial by reason of knowledge that Mr Pepper may have had of Cross. As a senior prison officer serving in the same prison he may have had access to all kinds of information about Mr Cross to his detriment which he could have communicated to the rest of the jury."
The application for permission to appeal against conviction of Stanley James Hill