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The wrong directions to a jury meant that this particular tout got lucky.
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R v Anjum
Criminal evidence and procedure – Trial – Summing up – Direction to jury – Lies direction – Appropriateness.
[2003] EWCA Crim 493, (Transcript: Smith Bernal)
COURT OF APPEAL (CRIMINAL DIVISION)
AULD LJ, GAGE, CRANE JJ
6 FEBRUARY 2003
T Cleeve for the Appellant
H Davies for the Crown
Registrar of Criminal Appeals; Crown Prosecution Service
GRAY J
(reading the judgment of the court): [1] This is an appeal against conviction brought with the leave of the single judge by Mohammed Anjum. He was convicted after a three day trial in the Crown Court at Kingston on 20 April 2001 of an offence of indecent assault on a female. For that offence he was sentenced by Her Honour Judge Wakefield to three years' imprisonment. If his appeal against conviction is unsuccessful, the appellant seeks leave to appeal that sentence. The question whether such leave be granted was referred to the Full Court by the single judge.
[2] Reverting to the appeal against conviction, the ground on which the single judge granted leave was that the direction given to the jury by the judge as to the lies allegedly told by the appellant in interview was deficient and wrong. Other grounds were originally relied on, but the judge did not give leave in relation to them and they are not pursued before the Court today.
[3] The judge gave that leave on 20 September 2001. Shortly afterwards solicitors acting for the appellant sought leave to adduce fresh evidence from a Mr Dilshad Khan. We decided to postpone dealing with that application until after we had heard argument on the ground for which leave has been given.
[4] The facts of this case were as follows. Shortly after 8 o'clock in the evening on 16 October 2000 the complainant, who we will refer to as MR, who was then aged 18, arrived at Heathrow Airport from Northern Ireland where her family lived. She was at the time a student at college in Twickenham and needed a cab to take her there. Her evidence was that on arrival she telephoned a cab hire firm called Bhats Cabs of Whitham but was told there would be a half hour wait. She gave her name and destination to the controller. Records from the cab firm were produced at the trial. They confirmed that at 20.49 hours a call had been received from a customer named “R” at Heathrow to go to Twickenham. The controller said that he told the customer that the cab would be a blue estate car. His evidence was that none of the firm's drivers was using a white Peugeot car that night. Between 35 and 40 minutes after her original call MR telephoned again to be told that the cab would be arriving soon.
[5] Five minutes after that a Peugeot car draw up. It was white and not blue, but as no one approached it MR assumed it must be for her. According to her evidence she volunteered her name, R, and the driver said “yes”. She then said “college” to which he also replied “yes”. MR also said that she said to the driver that she thought the cab was going to be a blue one. The driver, according to her evidence, replied that there had been a change. In cross-examination MR agreed that she had not mentioned the discussion about the colour of the cabs in her statement to the police on 17 October, the day after the incident. The cab set off.
[6] After a few minutes, according to the evidence of MR, the driver put his hand on her leg and asked about her family. He then asked her where she was travelling to and asked her to indicate her destination on an atlas which he produced. MR said that she was shocked that he should be asking her this information since she had already provided it to the minicab company. Her evidence was that the driver's English was very poor.
[7] When the cab had to stop at traffic lights, the driver tried to kiss MR. She told him to leave her alone. She said that he also rubbed her leg and touched her breast over her clothing. She tried to get out of the car but was unable to find a car handle. Her evidence was that she had repeatedly told the driver to stop touching her and to let her out. She gave evidence that she was very frightened.
[8] She said she asked the driver why he had no identification or radio, and that his reply was that the radio was broken. At this point he stopped the car again and started to rub MR around her vagina; this was also over her clothes. She swore at him. This time, according to her evidence, she succeeded in getting out of the car, taking her bags from the back of the cab with her. The cab then drove off. It was common ground at the trial that no money had in fact changed hands.
[9] MR did not know where she was. Fortunately two boys were nearby. She gave her mobile phone to one of them and asked him to call Bhats Cabs. This call was logged at just after 10 o'clock. The boys then walked her to Twickenham station. MR telephoned her mother on the way. The mother's evidence was that her daughter had sounded deeply distressed.
[10] When she returned to her college, MR told a friend and another resident from her block what had happened. They accompanied her to the police station. They gave evidence as to her evident distress, as did a woman police officer from the station. MR gave a description of the driver.
[11] The case for the appellant at the trial was that he did not admit that he had been the cab driver involved. Alternatively, as was put to MR in cross-examination, she had fabricated the whole incident and what had really occurred was that there had been a dispute between the two of them about the fare which was payable. That was suggested to be the motive for the false complaint. MR denied this in her evidence and said that there had been no discussion about the fare. She also denied the suggestion that the driver had physically pulled her out of his cab.
[12] After MR had reported the incident, two police officers drove to Heathrow Airport in an unmarked vehicle. There they saw a white Peugeot car. The driver was the appellant, Mr Anjum. He was arrested. When cautioned, he made no reply.
[13] MR also said in her evidence at trial that she was 90% sure that the tie that had been produced to her had been the one worn by the driver who had assaulted her. That tie had been taken from the appellant by the police officers. MR gave evidence that she recognised the white Peugeot car as well as the atlas which the police had also recovered from the car being driven by the appellant.
[14] In interview, the day after his arrest, the appellant said that he worked as a minicab driver for A1 Cars. He said he did not have a radio on his car but relied on a mobile phone to communicate. He said he had an English language atlas in his car. He also said that the passenger had called the base of A1 Cars and that he, the appellant, had gone to their premises and had been instructed by the controller to take a passenger from Heathrow Airport to Twickenham. He said that he did not know the name of the controller at A1 Cars, but that he was a new one.
[15] So the appellant was making plain by his answers in interview that he went to Heathrow that evening because he had been prebooked. He had not gone to Heathrow on spec, nor was he simply touting for business. The appellant also said in interview that the company that had instructed him to go to Heathrow was A1 Cars.
[16] The appellant gave evidence at the trial. He told the jury that he had been in the United Kingdom for five years and prior to October 2000 had been a minicab driver for about eight months. He had worked for A1 Cars for about five months and for Metro Cars, another minicab company, for about two months. He had been using a friend's white Peugeot at the relevant time.
[17] He said that on the evening of 16 October he had gone to A1 Cars and by chance had there met the Metro Cars controller who had asked him to do a job from Heathrow to Twickenham for a female passenger. The controller gave him a docket which was produced in evidence at the trial and said that the passenger would have a black bag and that the fare would be £13.
[18] His evidence was that at Heathrow a lady approached him and confirmed that she was going to Twickenham. He did not recognise the complainant as being the passenger he had taken from Heathrow to Twickenham on that evening. The appellant confirmed to the passenger that he was going to Twickenham. He had marked the route on the map and did not talk to her, he said, as he drove. The appellant's evidence was that he had not stopped on the way, except at traffic lights.
[19] At Twickenham he stopped and asked her to look at the map to show him where to go. They were about “ten steps” away, he said, from the railway station. She looked at the map and told him where to go, but, said the appellant, the lady made him go from one place to another because she did not appear to know the way and was wasting his time. He said he told her “Time waste. More money. £20, £15”. He said that her answer was that she usually paid £8, to which he said “Controller £13”. The appellant said that the passenger had replied that she would pay £8, whereupon he told her to get out of the car, but she did not move. The appellant testified that he then got out and put her luggage on the pavement. He was upset and dragged her out of the car. She was laughing, according to the appellant's evidence. This was the only time he had touched her.
[20] Asked why he had not mentioned Metro Cars when interviewed by the police, the appellant explained that he was a regular driver for A1 Cars and only drove part-time for Metro Cars. He accepted that he had not told the police that he had dragged the passenger out of the car. He said that during the interview he had been upset and confused. He had found the docket given to him by the controller later on when he was cleaning the car.
[21] In the course of his cross-examination the appellant denied that he had gone to Heathrow on the off chance of finding a fare without going through a controller. He said that he could not read the atlas but would get help from other drivers and use his mobile phone if he was lost. He said that the reason why he had not previously mentioned the conversation about charging between £15 and £20 for the fare was that he had not been asked about it. The passenger had not told him she was going to the college. He said had he not taken the £8 off her because although she was holding the money she was not prepared to pay.
[22] A witness named Mrs Jamila Goyara was called to give evidence on behalf of the appellant. She was a controller at Metro Cars and said that the appellant had worked as a driver for that firm for about two months. Her evidence was that the records of the firm for the material time were no longer available, but that she could describe every booking without reference to any document. Her evidence was that at about 9.30pm on 16 October she had received a call from a man called John requesting a cab for his girlfriend at Heathrow. The caller described the passenger as wearing a blue coat and with a black bag. She confirmed that the exhibited docket was made out by her. She said that she met the appellant outside the cab office and had booked him to do the job. She gave him the docket and he left. At 10.30 the appellant telephoned her to say that the passenger had only been prepared to pay £8 and he had told her to leave the vehicle.
[23] Although it may not have been put to her in cross-examination that she was lying, as we understand it the prosecution case at the trial was that Mrs Goyara's evidence was false.
[24] A statement was also read from the owner of the firm A1 Cars, who said that the appellant had not been working for that firm or been given a job by that firm on 16 October.
[25] Finally in regard to the facts of the case, there was a formal admission, about which the jury were told at the trial, that in the Magistrates' Court counsel for the appellant had told the court that the appellant had been working for Metro Cars and not A1 Cars on the night in question.
[26] The summing-up of Her Honour Judge Wakefield included the following passage which is said on behalf of the appellant to be a misdirection:
“Secondly, the question of prebooking may be relevant in relation to what evidence of the defendant you accept. If you believe the evidence of the defendant as to his being at Heathrow, prebooked by his minicab firm, by Metro Cars, that he went there to collect a lady on whose behalf a phone call had been made and a booking made, then that may help you to decide whether he is telling you the truth on other matters. Conversely, if you disbelieve his evidence as to his being there for a prebooked fare, that is to say if you are of the view that he has lied to you about that, then, of course, that may assist you in determining whether you can accept his evidence on other matters. So it is a matter for you as to how you approach the question of prebooking.”
[27] It is submitted by Mr Cleeve, who has presented this appeal on behalf of the appellant, that the “other matters” referred to by the judge must have been intended to refer to the account given by the appellant of what happened in the course of the journey in the cab. No complaint is made about the first part of the passage quoted, where the judge was indicating to the jury that if they believed the appellant about how he came to be at Heathrow that would suggest that he was or might be telling the truth about what happened on the journey, that is that there was no assault but rather an argument about the fare. But in regard to the latter part of the passage which we have quoted, starting with the word “conversely”, Mr Cleeve submits that the judge was, in effect, directing the jury that if they concluded that the appellant was lying about the reason for his being at Heathrow that might assist them on the issue whether the appellant was telling the truth about what he said had taken place, or rather not taken place, during the journey itself. In other words, said Mr Cleeve, the judge was directing the jury that they could use what were said to be the appellant's lies as evidence supporting the conclusion that he was guilty. Mr Cleeve contends that in those circumstances a Lucas direction should have been given.
[28] In support of that contention he relies on Burge and Pegg [1996] 1 Cr App R 163. He argues firstly that the direction failed to make clear to the jury that no lie could support the prosecution case unless the jury was sure that the appellant had not lied for an innocent reason, and, secondly, that the jury should have been told that an innocent man may tell a lie to bolster a genuine defence. Mr Cleeve submits, further, that the judge should have directed the attention of the jury specifically to what was said by the prosecution to be the lie told by the appellant, namely that he had been sent to Heathrow by Metro Cars, as opposed to A1 Cars as he had claimed in interview. He adds that the judge should also have made clear to the jury that it was the prosecution case that the appellant was lying when he said he had been prebooked to collect a fare at the airport and that he was not touting for a fare.
[29] A further criticism was made of the passage in the summing-up which we have quoted, that the inclusion of the words “if you believe the evidence of the defendant” might have been understood by the jury as, in effect, imposing some burden of proof on the appellant in relation to the question whether he had been prebooked to go to the airport.
[30] Mr Davies for the Crown points out, as is accepted, that the judge was not asked to give a Lucas direction, nor, says Mr Davies, was he expecting her to give one. He says, correctly, that he made clear to the jury in his closing speech that the question which minicab firm the appellant was working for was not a central issue for them to decide. Mr Davies argues that the lies as to the name of the minicab company and as to the fact of the prebooking were an intrinsic part of what he says was the dishonest account given by the appellant of his encounter with MR on the evening in question. It was, therefore, he maintains, not necessary in the circumstances to give a Lucas direction.
[31] In the alternative, if a Lucas direction was required, Mr Davies submits that the judge was entitled to tailor it to meet the particular requirements of the case and to reflect the limited significance which, on behalf of the prosecution, he had attached to it. This, he submits, is in effect what the judge did. He draws attention to what the judge said before the passage quoted earlier. The judge had said this:
“Of course, the resolution of that issue [by which she was referring to the prebooking issue] will not determine the question whether or not an indecent assault occurred once MR had got into car. That is, of course, if you are satisfied that it was MR who was the defendant's passenger that night, and that is still of course not admitted, it is potentially an issue for you there.
What is the relevance of question whether the passenger was prebooked and that is why the defendant was at Heathrow, or whether he simply went to tout for business? You may think that issue has relevance in two possible ways. Firstly, you may think (and it is entirely a matter for you) that it is less likely that a minicab driver would commit an offence of the sort alleged against a passenger who had been or who he thought had been booked for the journey through a minicab company for whom he worked. You may think it less likely it would have occurred in those circumstances than such an offence would be committed by a driver who had merely picked up an unknown and unrecorded passenger. It is a matter for you as to whether you think it relevant on that issue.”
The judge then went on to give the direction which we have quoted earlier.
[32] Mr Davies asserts that in the passage which we have just read the judge was in effect giving a Lucas direction suitably tailored to meet the facts of the case. Finally, even if the direction given was (contrary to his primary case) required, and was either not given or was deficient, Mr Davies contends that on the totality of the evidence the only reasonable and proper verdict would have been one of guilty so that the conviction cannot be said to be unsafe; in support he cites the case of Stirland [1994] AC 315.
[33] We deal, first, with the point made by Mr Cleeve that by what she said at p 6C the judge was, or might have been understood by the jury to be, directing them that some burden of proof lay on the appellant in relation at least to the question whether, as he claimed, he had been prebooked to go to Heathrow Airport. We recognise that there is some force in that criticism. But that passage has to be read in conjunction with the impeccable direction given by the judge on burden of proof at p 7F. If this criticism of the summing-up stood alone, we would not have disturbed the conviction.
[34] But there is the further, as it appears to us, crucial question whether this was a case where a Lucas direction was required. We readily accept, as is apparent from Burge and Pegg, that a Lucas direction is not required in every case just because a defendant gives evidence controverting evidence given by prosecution witnesses. In Burge and Pegg the Court said:
“. . . the point we wish to make is that a Lucas direction is not required in every case in which a defendant gives evidence, even if he gives evidence about a number of matters, and the jury may conclude in relation to some matters at least that he has been telling lies. The warning is only required if there is a danger that they may regard that conclusion as probative of his guilt of the offence which they are considering. In Goodway this Court cited, with approval, the New Zealand case of Dehar [1969] NZ LR 763, in which the court said:
'How far a direction is necessary will depend upon circumstances. There may be cases ... where the rejection of the explanation given by the accused almost necessarily leaves the jury with no choice but to convict as a matter of logic..'
Again the emphasis is ours. Adapting the words used by Professor Birch in the Criminal Law Review [1994] Crim LR 683, our view is that the direction on lies approved in Goodway comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused: in effect, using it as an implied admission of guilt. Normally prosecuting counsel will have identified and sought to prove a particular lie on the material issue which is alleged to be explicable only on the basis of a consciousness of guilt on the defendant's part. This is, as Professor Birch says, a very specific prosecution tactic, quite distinct from the run of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that insofar as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false.”
[35] The Court in Burge and Pegg went on to indicate four circumstances where a Lucas direction is usually required:
“There are four such circumstances but they may overlap:
1. Where the defence relies on an alibi.
2. Where the judge considers it desirable or necessary to suggest that the jury should look for support or corroboration of one piece of evidence from other evidence in the case, and amongst that other evidence draws attention to lies told, or allegedly told, by the defendant.
3. Where the prosecution seek to show that something said, either in or out of the court, in relation to a separate and distinct issue was a lie, and to rely on that lie as evidence of guilt in relation to the charge that is sought to be proved.
4. Where although the prosecution have not adopted the approach to which we have just referred, the judge reasonably envisages that there is a real danger that the jury may do so.”
[36] The case for the appellant is that this case falls within the second and fourth of Kennedy LJ's categories in Burge and Pegg.
[37] As we have already mentioned, the judge was not asked to give a Lucas direction. In Burge and Pegg Kennedy LJ said this:
“Further, the judge should, of course, be assisted by counsel in identifying cases where a direction is called for. In particular, this court is unlikely to be persuaded, in cases allegedly falling under number four above, that there was a real danger that the jury would treat a particular lie as evidence of guilt if defence counsel at the trial has not alerted the judge to that danger and asked him to consider whether a direction should be given to meet it.”
[38] Mr Cleeve agrees in hindsight that he should have raised the question of a Lucas direction with the judge. The fact that he did not do so cannot, in our judgment, in the circumstances of this case, debar the appellant from arguing this his conviction is unsafe by reason of the absence of such a conviction.
[39] We have come to the conclusion that this was a case where a Lucas direction was required. We cannot accept the submission on behalf of the prosecution that the issue whether the appellant had been booked in advance by Metro Cars to pick up a passenger at Heathrow was, as Mr Davies puts it, an intrinsic part of the case against the appellant so as to render a Lucas direction unnecessary. The prebooking issue was collateral in the sense that the indecent assault could have taken place even if the appellant was telling the truth when he said that he had been prebooked.
[40] Mr Davies has urged on us that he played down at trial the significance of the issue for which, if any, minicab company the appellant was working on the night in question. But it is incontrovertible that this issue was put to the jury. In his closing speech Mr Davies said this:
“. . . you may care to think, well, on the same date the prosecution had the evidence of Mr Sharif [he was proprietor of A1 Cars] that contrary to what Mr Anjum claimed in interview, he had not been working for A1 Cars at all that night. So, another cab company has to be invented. This isn't the central issue for you, of course, whether he was working for a cab company or not. It does nothing to add to the credibility of his account.”
[41] No doubt something was made of this point in cross-examination. Moreover, the learned judge in the passage at p 6 of the summing-up, which we have quoted, was clearly leaving open to the jury the possibility of using the lies admittedly told in interview by the appellant, as a buttress for the conclusion that he was lying when he denied assaulting MR.
[42] The reality of this case appears to us to have been that the prosecution was inviting the jury to treat the fact that, as it was alleged, the appellant had lied in interview about the identity of the cab company which had booked him, and had lied in interview and in evidence that he was not at Heathrow Airport on spec, as being additional reasons for doubting his claim not to have assaulted MR. It would be natural for the jury, when trying to resolve the conflict of evidence as to what took place in the cab, to look at peripheral evidence, such as whether the appellant was telling the truth in his interview. That is the classic situation where a Lucas direction is required in order to caution the jury against inferring guilt from lies. In our judgment this was a case where a Lucas direction should have been given.
[43] We are not persuaded that in the passages we have quoted from the summing-up the judge can be said to have given to the jury a tailored Lucas direction of the kind contemplated in Burge and Pegg. The essential point about which the jury needed to be warned was that an innocent defendant may tell lies in order to improve upon a genuine defence. We accept that the judge told the jury that the resolution of the prebooking issue would not determine whether or not an indecent assault took place and that she said no more than that the prebooking issue “may” be relevant to what evidence of the appellant was accepted. But that appears to us to fall short of the assistance which was required for the jury to know how to approach the claim that the appellant had told lies.
[44] There remains the question whether, despite the omission to give the Lucas direction which we consider was required, whether the conviction can nonetheless be upheld. As to that we find ourselves unable to say that, on the assumption that a Lucas direction had been given, the only proper and reasonable verdict would have been one of guilty. That is the test laid down in Stirling and in our judgment it is not satisfied here.
[45] Such being our conclusion on the ground of appeal for which the single judge gave leave, it is unnecessary for us to address the question of fresh evidence. This appeal is allowed for the reasons which we have given.
Appeal allowed
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