R v Kalia

     [1974] EWCA Crim J1125-1

No. 4481/C/73

IN THE COURT OF APPEAL

Thursday, 21st November 1974Friday, 22nd November 1974Monday, 25th November 1974

Lord Justice Roskill

Regina

v.

Daya Kalia

Jagan Nath Kalia

Surinder Singh Bhuller

Harinder Singh Sahi

Joginder Singh Sidhu

Ramlok Sharma

and Balbir Chandra Sharma

(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London, WC2R 3AT. Telephone Number: 01-583 4121. Shorthand Writers to the Court.)

 

Mr. B. RODWELL appeared on behalf of Appellants Daya Kalia and Jagan Nath Kalia.

MISS A.M. TURKAN appeared on behalf of Applicants Bhuller and Sahi.

Mr. J. YAHUDA appeared on behalf of Applicants Sidhu, Ramlok Sharma and Balbir Sharma.

Mr. M. SAYERS and MR. C. MITCHELL appeared on behalf of the Crown.

JUDGMENT

(as approved by Judge)

 

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Thursday, 21st November, 1974.

 

LORD JUSTICE ROSKILL: In view of the size of the documentation of these appeals and applications and of the facts that there are a large number of appellants and applicants and that the trial – this is a matter to which the Court will have to advert later – lasted 69 days, the Court proposes, exceptionally, to deal with these appeals and applications, so far as it conveniently can, point by point rather than by appellant or applicant after appellant or applicant. Moreover, a number of the points are common to the different cases. We do not therefore propose in this judgment to go in any detail into the background of the trial.

The first point that has been argued this morning on behalf of the two appellants, Daya Kalia and Jagan Nath Kalia (who are not – I repeat, not – husband and wife but brother and sister-in-law, Daya being the wife of a man named Kedar Nath Kalia, whose name played a prominent part in this long trial), is that the learned trial Judge, Judge Abdela, was wrong in refusing the application for an order that the two appellants be tried separately from the rest of those charged in this indictment.

It is necessary to say that the indictment, so far as presently concerns the two appellants (they obtained leave to appeal against their convictions from Mr. Justice Forbes), contained two counts of conspiracy. The first count alleged conspiracy to contravene section 4(3)(a) of the Commonwealth Immigration Act 1962, and the second alleged conspiracy to contravene section 4(1)(d) of the same Act.

The purpose of these two alleged conspiracies can be summarised in this way. Count 1 was an alleged conspiracy to get a number of intending illegal immigrants into this country through Manchester Airport, disguised as musicians carrying musical instruments which, it seems, none of them was able to play, by making false representations as to the true facts as to their status, including that they were musicians coming into this country to fulfil professional engagements which had already been arranged for them here. As I say, it was a conspiracy to

 

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get them through the immigration controls and into this country by false representations. It allegedly involved people who were in this country at what one might call the receiving or reception end, and people outside this country at what one might call the Indian end.

The second count can he conveniently summarised by saying it was an alleged conspiracy to enable those people who, once they got in here illegally in furtherance of the conspiracy in count 1, thereafter to remain in this country in breach of the conditions attaching to the entry which they had secured by the fraudulent means as alleged in count 1. In other words count 1 was to get them in and count 2 was to keep them in when they got here.

It follows from what I have already said that the prisoners really fell into twogroups, those seeking entry and those who it was alleged had arranged the illegal entry. The two Kalias were among those who, it was alleged, arranged the illegal entry and wore involved in the United Kingdom getting the immigrant through the controls. Mrs. Kalia and her husband Kedar Nath Kalia had been living together in Coventry. At the time of the trial Kedar Nath Kalia (I want to say as little as possible about him, as he was not charged and may still have to face charges if he comes back to this country) had gone back to India. Of course it is trite law that there cannot be a conspiracy between a wife (Daya Kalia) and a husband (Kedar Nath Kalia), although there could be a conspiracy between any of the other accused and the appellant Jagan Nath Kalia.

It has been argued (as it was argued by Mr. Rodwell in the court below) that there should have been a separate trial for the Kalias because the alleged illegal immigrants had all made statements, which were vigorously challenged at the trial, implicating them. I say no more about them for the moment. But everybody knew that they were going to be challenged as having been improperly obtained.

The original application to sever the trial of the Kalias from the others was made by Mr. Rodwell at the beginning of the trial and before the Judge had ruled at the end of a trial within a trial held to determine the admissibility of some of these

 

[1974] EWCA Crim J1125-1  4

statements by the alleged illegal immigrants. Those statements (which were confessions) contained a massive amount of evidence, if they were properly obtained and were true, that Kedar Nath Kalia was a conspirator. These confessions were, at the beginning of the trial, no evidence whatsoever against the Kalias, though it is right to say (although Mr. Rodwell sought to argue the opposite), there was some other evidence against these two appellants.

What was said was that, once the jury heard, as they ultimately did hear, all this evidence from these illegal immigrants (challenged though it was), there was a serious risk of what is sometimes called in conspiracies a “brushing off” of that which was not evidence against these two appellants on to them, which no summing-up, however fair and however clear, could prevent. Mr. Rodwell argued, as he submitted to the trial Judge, that the only way of avoiding that risk was for separate trials to be ordered. He conceded that the question of ordering separate trials was a matter for the trial Judge’s discretion, and accepted that this Court will rarely interfere with an exercise of that discretion.

But it is said here that the learned Judge exercised his discretion upon a wrong principle, because he did not properly take into account, at the time when this submission was made and before of course he could know whether or not these confessions would be admitted in evidence at the trial, their prejudicial effect (if admitted) against the two Kalias.

Of course this problem frequently arises in conspiracy cases. It is a problem of which any judge of experience, like the trial Judge in the present case, is well aware. In the view of this Court, at the time at which he gave his ruling, he was well justified in exercising his discretion in the way in which he did, and for this reason. It was of the essence of the prosecution case that there were two separate conspiracies in which all the accused and others were involved. It really was impossible in those circumstances to separate the trial of these two appellants on these two conspiracy counts from the trial of the other accused. The learned Judge in his summing-up did his best to make absolutely plain what evidence was and

 

[1974] EWCA Crim J1125-1  5

what was not admissible against certain of the accused. At the time he gave his ruling we think he was quite justified in ruling as he did.

It was said further that he ought to have reviewed this ruling some seven days later after the trial within a trial and after his decision to admit this evidence. It is only fair to the trial Judge to say, as Mr. Rodwell admitted, that the application to sever was not then renewed. The learned Judge cannot be blamed for not reviewing his decision if the application was not renewed, and it is a little harsh to blame him for not reviewing his earlier ruling when he was not invited so to do.

In the result Mr. Rodwell’s first ground of appeal regarding the Kalias must fail.

We have also heard argument from Mr. Yahuda on behalf of Sidhu and the two Sharmas, that both counts of the indictment and particularly count 1, were bad in law. The main ground upon which this argument was advanced at the trial before the learned Judge, over a regrettably long period of time, was that the counts infringed the principles laid down by the Court of Criminal Appeal in  Barnett35 Criminal Appeal Reports 37 . That was a case where the Crown had charged a number of persons with conspiracy to contravene section 1 of the Auction (Bidding Agreements) Act 1927. It is to be observed that that statute made a summary offence an agreement to organise a ring of bidders. It was therefore the making of such an agreement which was the summary offence created by that statute. The Crown in that case, notwithstanding the provisions of the statute which made that offence as a summary offence, charged conspiracy to infringe the Act. That conspiracy charge was held to be bad. That decision has been distinguished in a number of later cases to which it is not necessary to refer.

Although this submission was put forward in the grounds of appeal, Mr. Yahuda did not pursue it before us. On the contrary he expressly abandoned it. This Court feels bound to observe with regret that it only received the amended grounds of appeal at 3.20 yesterday afternoon, and that document does not expressly

 

[1974] EWCA Crim J1125-1  6

abandon this ground. At .the most It only impliedly does so. If Mr. Yahuda was going to abandon the point, the Court ought to have been informed of his intention in advance, as the point had been taken at the trial and renewed in the original grounds.

However, Mr. Yahuda in this Court substituted an alternative argument. It must be emphasised that when applications are made for leave to appeal, this Court is entitled to have, and requires to have in advance the grounds of appeal. Proper compliance with the rules of this Court regarding giving or amending grounds of appeal is essential. Master Thompson’s book contains all the relevant information as to the circumstances in which this Court will allow counsel to vary or amend grounds of appeal and the time within which that should be done. To have new grounds advanced at the 59th minute of the 23rd hour is unsatisfactory in the extreme. It involves a waste of time and does not extend to the Court the courtesy to which it is entitled.

What is now said is that the language of the two conspiracy counts in this indictment was defective. I have already pointed out this trial took 69 days at the Central Criminal Court. From beginning to end not one single word was said in support of this submission. Now, on the first day of this application it is sought to put this point forward. In the view of this Court there is absolutely nothing in it. These two counts were perfectly adequately framed.

It is sought to be said that it ought to have been alleged that all these persons conspired with those of them who deceived the immigration officer. The language of count 1 shows, and the case was clearly opened on the basis, that the charge was that all these persons conspired together and with other persons by malting to the immigration officer statements which they knew to be false as to the status of those of the accused who are named in the indictment. That was made absolutely plain to the jury.

Pressed by the Court to say why this point was not taken earlier, Mr. Yahuda said he only thought about it a few days ago. If so, it is a pity he did not indicate it to the Court before yesterday. I ventured to remind him what was said in this Court by Mr. Justice Fenton Atkinson (as he then was) in  Simmonds and others  51 Criminal Appeal Reports 316 at page 331.

 

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The Court consisted of Lord Justice Sachs, Mr. Justice Fenton Atkinson and Mr. Justice James (as ha then was). I will read again, so that it is on record, that passage from the judgment of Mr. Justice Fenton Atkinson: “The proper time for such a point to he taken is on motion to quash the indictment before plea, but at that stage this novel point appears to have escaped the attention of five leading counsel and seven junior counsel, and five firms of solicitors representing the accused, and it was not until the thirty-seventh day of the hearing (just two months after the trial started) that Mr. Muir Hunter first raised the matter having, as he explained to the judge, fallen over it one night in the dark. He concedes that he can quote no direct authority in support of his submission and was constrained to agree that, if he is right, the criminal courts of this country have proceeded on a mistaken view of the law for over 100 years.” Mr. Yahuda, notwithstanding this point – if it can he so described – was missed by everybody at the trial, the Crown, the defence and the Judge, appears equally suddenly, to have stumbled upon it. It is a thoroughly bad point. There is nothing in it. We formally give leave for the point to be taken, but reject it. That ground of appeal fails.

Miss Turkan put forward an argument seeking to make use of the original ground of attack upon this count. She referred to section 4(3)(a) of the Act. That subsection reads thus: “If any person – (a) makes or causes to be made to any immigration officer or other person lawfully acting in the execution of this Part of this Act, any return, statement or representation which he knows to be false or does not believe to be true; or (b) refuses or fails to produce or furnish to any such officer or person any document or information which he is required to produce or furnish to that officer or person under this Part of this Act, or otherwise obstructs any such officer or person in the exercise of his functions thereunder; or (c) without lawful authority, alters any voucher or other document issued or made under or for the purposes of this Part of this Act, or uses for the purposes of this Part of this Act, or has in his possession for such use, any forged or altered voucher, passport or other document, he shall be guilty of an offence.”

 

[1974] EWCA Crim J1125-1  8

 

The argument is this. If you have two persons, one of whom causes a false representation to be made and the other of whom makes the false representation, they are without doubt guilty of acting together in concert, and it is that act of, agreeing so to act in concert together which is the summary offence created by the subsection so as to make the present charge of conspiracy impossible because of the principles laid down in  Barnett ‘s case. With respect, that argument is unsound. It is unsound for this reason. Subsection (3) does not create an offence of agreeing to do something. It is creating separate offences according to whether an individual makes a false statement or causes someone else to make a false statement. If one person makes a false statement and another causes that person to make that false statement, then each is committing a separate summary offence. But any agreement that these offences shall be committed is not itself a summary offence.

Accordingly, the  Barnett  principle has no application and that point must also fail.

I can in this judgment take grounds 2 and 4 of Mrs. Kalia’s grounds of appeal and ground 5 of Jagan Nath Kalia’s grounds of appeal and deal with them, I hope quite shortly, together.

Ground 2 of Mrs. Kalia’s grounds of appeal is the learned Judge erred in ruling there was some evidence to go to the jury that this appellant conspired with someone other than her husband Kedar Nath Kalia. Ground 5 of Jagan Nath Kalia’s grounds of appeal is that the learned Judge erred in telling the jury that it had been proved that Kedar Nath Kalia was a co-conspirator.

It is true that it was a part – and I stress the indefinite article ‘a’ – of the Crown case that Mrs. Kalia’s husband, Kedar Nath Kalia, who was in India at the time of the trial, played a very important part in the alleged conspiracies. But proof of that fact was not an essential part of the Crown’s case. Indeed, as I have pointed out this morning, Kedar’s name is not mentioned in count 1 or in count 2 of the indictment. One has therefore to look at the state of the evidence, as it was at the close of the case for the prosecution.

Mr. Rodwell said that at that time there was no, or

 

[1974] EWCA Crim J1125-1  9

alternatively no admissible, or in the further alternative very little, evidence that Kedar Nath Kalia was a conspirator. I want to say as little about this as I can. It is plain that the learned Judge summed this case up on the basis that the jury might very well think that Kedar Nath Kalia was a conspirator. But that is not the point. The point is whether there was evidence to go to the jury of Mrs. Kalia having conspired with anybody other than her husband, because, as the learned Judge pointed out, quite rightly, both at the beginning of his summing-up and again very much at a later stage when he was dealing with the case for and against Mrs. Kalia on what was the fourth day of the summing-up, it is trite law that a husband cannot conspire with his wife, nor of course a wife with her husband. One must therefore look at the position as it was at the close of the case for the prosecution and see what, if any, evidence there then was, fit to go to the jury that she had conspired with someone other than her husband.

The Crown case was that that evidence really fell into two parts. First, the evidence of certain telephone calls that were made, and secondly, certain evidence of what I may broadly call knowledge of what was going on.

When at the trial Mr. Sayers for the Crown was replying to the submission of no case to go to the jury, he said: “What the prosecution have to go for now is, as I say, to find something which links her with all this evidence that I have referred to, with her husband in arranging the whole thing and one has to look somewhere for a chink where she is agreeing with some other person – and it only has to be one person – outside.” He went on “Your lordship I think will find that immediately after she was cautioned, ‘I believe that just as you helped your husband with his other legitimate business enterprises, you also helped your husband with this group.’ Her answer is signi-ficant: ‘I made some telephone calls for him to arrange their reception by their families.'” That is a quotation of an answer given to a police officer. It is agreed in this Court, so far as that officer’s evidence in chief is concerned that it can be taken that it was given as it appears in his statement. Mr. Sayers went on: “Here, my Lord, you have her acting – and,

 

[1974] EWCA Crim J1125-1  10

“of course, it cannot be argued that she is acting – as his agent: she is contacting directly with other conspirators for the reception of these illegal immigrants ….”.

One therefore turns to see exactly what the position was on the evidence, as it then stood on the police officer’s statement. Mr. Rodwell referred to a number of passages, particularly at pages 120 and 121, which I will not read beyond pointing out that at page 121, there is this question and answer: “What was Mr. Kapani doing with this man?” Mr. Kapani was a gentleman who, if I may use the phrase, skips across the fringes of this case. Mrs. Kalia replied “He brought him to the house. She was then asked “Why did he bring him to the house?” and her answer was “For advice.” She was then asked “Who was going to advise them?” and her answer was “I don’t know.”

Another passage is at the bottom of page 124. The Officer asked Mrs. Kalia “In 1968, in October, on the 25th of October, the day that your husband did not ring you as he normally does, 12 men flew into the United Kingdom in the guise of musicians and entertainers. Your husband organised and arranged that group’s arrival. I believe you knew that group was coming.” She answered “Yes”. The officer asked “Where did they arrive?” and she replied “At Manchester.” The officerthen said “As I understand it your husband came with them and that is why he didn’t phone you, because he came in at Manchester.”, she answered “He didn’t phone me.” The officer asked “Who arranged the sponsorship from the address at 93 Warley Road, Hayes?” and her answer was ” ‘K’ arranged it.” She was then asked “Do you know who is Ram Krishan Sharma?” and she replied “I don’t know.” The officer said “When that group arrived at Manchester on the 25th of October 1968, I believe you knew that they were not musicians but that you knew they were all illegal immigrants.” and she replied “Yes.” She was cautioned and then the officer said: “I believe that just as you helped your husband with his other legitimate business enterprises, you also helped your husband with this group.” and she replied “I made some telephone calls for him to arrange their reception by their families.” She was asked “Who did you telephone?” and she made no reply. She was asked “When did you telephone?” and she made no reply.

 

[1974] EWCA Crim J1125-1  11

 

The officer then asked “Were these telephone calls made by you in order that these men could he met at the airport when they landed?”, and the answer was “Yes.” She was then asked “What else did you do to help your husband?” and she replied “That was all.” Then she was told she was going to be charged.

Now the sole question at the close of the case for the prosecution, was whether there was any evidence upon which the Judge could leave the conspiracy charges to the jury. In the view of each member of this Court, it was not for the Judge to say whether these answers to the police were true or not, whether they were given or not. The officer said they were given. On the footing these answers were given, it cannot be gainsaid there was evidence to go to the jury. Therefore that part of the submission fails. The Crown did not depend upon whether there was any proof of participation in this conspiracy by Kedar Nath Kalia.

The other point on this part of the case turns on the way the learned Judge summed up the case against Mrs. Kalia. He summed up the case against her last. The relevant passages are in Volume 13 of the transcript. At page 3 he observed that this was a very close knit family association. Complaint has been made that he did not refer to an answer which Mr. Rodwell extracted from a police officer at Volume II C at page 57, as to the practice of Indian families in general. There was no reason why the Judge should have referred to every answer that was given in cross-examination; this case would never have come to an end had he done so. As Lord Justice James pointed out, anyway it is a rather double edged point. A close-knit family may keep things to themselves, If they were not a close-knit family, they would not keep things to themselves. The very fact that they were close-knit may lead to the irresistible conclusion that each member of the family, so far from being ignorant of what others were doing, knew perfectly well what was going on.

The main complaint on this part of the summing-up (as we see it, the learned Judge in Volume 13 summed up this part of the case perfectly accurately), is that the Judge introduced into this part of the summing-up certain evidence that had been

 

[1974] EWCA Crim J1125-1  12

given by a police officer of a statement made by Sidhu (and later denied by Sidhu in the witness box) of what had passed between Sidhu and Mrs. Kalia. It is clear that the learned Judge summed up that evidence, which was not evidence against Mrs. Kalia, in this part of the case. This at first sight caused this Court some anxiety. But when one reads the passage, it is clear why the Judge did what he did. Having referred to it at page 17, he said “That was the evidence, you recall, of Police Constable Kenth in relation to Sidhu and having read out to you what the officer said took place in evidence, members of the jury, I must remind you that you have got to remember, if you accept that evidence, that that evidence is evidence against Sidhu alone.” He went on to remind the jury what the law was.

Although at first sight this does appear to be out of place, it is only fair to the learned Judge to say that what he was doing was placing before the jury at one and the same part of the summing-up what the totality of the evidence was in relation to these alleged conversations. He did so whilst reminding the jury that of course they must not take what Sidhu said to the police officer as in any shape or form evidence against Mrs. Kalia. Accordingly there is nothing in that ground of appeal.

The result is grounds 2 and 4 fail and ground 5 of Jagan Nath Kalia also fails.

The second ground of appeal on behalf of Jagan Nath Kalia is worded in this way in the notice of appeal: “The learned Judge erred in ruling that the evidence of P.C. Reeves and Mr. (formerly D/S) McKee of alleged admissions made by this appellant on 27th April 1972 be left to the Jury, in that: (1) These officers never informed the appellant of the nature of their enquiries. (2) Those officers did not inform the appellant that their enquiries might concern him. (3) Despite the fact that the police suspected that this appellant might have been involved in the offence they were investigating they did not caution him at the proper stage of the interview. (4) That because of the lack of information as set out in (1) and (2) above and the lack of caution as in (3) above this appellant’s answers were not voluntary.”

 

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The relevant evidence in chief of Mr. McKee, who I will treat as the material witness, can be found on pages 212 and 213 of the depositions. A lot of questions were asked of Jagan Kalia and he was not cautioned before they were asked. I need not read them all, but starting towards the bottom of page 212, the officer asked “A group of people came over in 1968?” and he replied: “Yes.” The next question “What did you do?” and he replied “What do you mean?” The officer asked “How did you help your brother?” and he replied “With the promotion.” The officer said “Yes.” and he replied “I only helped him.” The officer then asked “How did you help?” and the answer was “I made some of the arrangements for him.” He was then asked “When was that?” and he made no reply. The officer then asked “What arrangements did you make for him? Did you know they were not real musicians?” and he replied “Yes I knew that, Kedar Nath arranged it in. India.” The officer then said “You are arrested on suspicion of conspiring with other people to contravene the Immigration Acts.” The officer then cautioned him and the appellant said “I didn’t get any money, I met them at the Airport.” The officer asked “What airport was that?” and he replied “It was Manchester Airport.” The officer then asked “Where is Kedar now?” and he replied “If I knew I would tell you.” It is conceded that the two officers never informed Jagan Kalia either of the nature of the inquiries or that their inquiries might concern him.

This matter now arises in a very curious way; indeed so far as each member of this Court is concerned in a way which is unprecedented. There was, as I said earlier, a long trial within a trial in which the veracity, integrity and reputation of three police officers was severely attacked. It is not necessary to go into that at this juncture. There was no attack upon the police by Mr. Rodwell on behalf of this appellant. Therefore no attempt was made by Mr. Rodwell in the course of the trial within a trial to exclude this evidence either on the basis of alleged breach of the Judges’ Rules, or on the basis that it was not voluntary.

Mr. Rodwell, when pressed by this Court to say why he had not taken part in the trial within a trial on this issue, said

 

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he did not think he would have obtained the necessary factual foundation by questioning the officers concerned to enable him to argue that there had been a breach of the Judges’ Rules. The whole of this evidence therefore went in without any objection.

There was considerable cross-examination when the officers concerned were in the witness box before the jury. But at the close of the case for the prosecution, Mr. Rodwell in a submission, which occupies many pages of transcript, sought at that belated stage to persuade the Judge to exclude that evidence – already given. Since it was the only evidence against Jagan, he asked the Judge to withdraw the case from the jury on the ground that the statements in those answers were not voluntary. He said “My Lord, before those sentences”, referring we think to the answers which I have just read, “are left to the jury your Lordship has to be satisfied, in my respectful submission, that the statements therein contained were properly obtained by the police and that they were voluntary and, my Lord, I attack that aspect of the prosecution’s evidence. My Lord, accepting for the moment that every word was said, if your Lordship comes to the conclusion that they were not properly obtained, that is to say that there was a breach of the Judges. Rules, and in addition to there being a breach of the Judges’ Rules your Lordship also concludes that the prosecution have not established that they were truly voluntary, then, of course, in my respectful submission your Lordship ought not to leave them to the jury.”

Pausing there for a moment, ever since  Palmer ‘s case, it has been the rule that questions of voluntariness are matters for the Judge and not for the jury, save when voluntariness bears on the truth or otherwise of the alleged statement upon which prosecution seek to rely. Secondly, it is axiomatic that the question whether or not there has been a breach of the Judges’ Rules is a question to be ruled upon by the Judge and not a question to be decided upon by the jury.

No member of this Court has ever heard of a submission designed to persuade the Judge to withdraw a case from the jury on the ground that the evidence relied on by the Crown

 

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has been obtained in alleged breach of the Judges’ Rules, where that evidence has been admitted without objection, and where there has been ample opportunity in a trial within a trial for proper objection to be taken, and that opportunity-has not been taken.

It is theoretically open to Mr. Rodwell, though he has not framed his grounds of appeal in this way (but treating him as having done so) to say that at the end of the cross-examination of the police officers, as a result of the answers they gave, the evidence was so unsatisfactory that no weight should be attached to it and that accordingly, following the principles in  Young ‘s case, the Judge ought then to have withdrawn the case. But nobody can say that was the position here. Indeed in his own submission to the learned Judge, Mr. Rodwell found himself compelled, in order to lay the foundation for his argument, which he singularly failed to do by questioning the witness, to say that Mr. McKee had given an answer which was in Mr. Rodwell’s phrase “patently untrue”.

The question whether or not an answer is true was a matter for the jury and not a matter for the Judge. If the evidence was of so tenuous a character that no jury could properly convict upon it, then it was the duty of the Judge to withdraw the case. But to allow this evidence to go before the jury and then at that late stage to seek to have it excluded on the ground that it was not voluntary and that there had been some breach of the Judges’ Rules, seems to this Court to be entirely wrong. In point of fact the jury, quite obviously in the light of the Judge’s direction, believed the police officer and disbelieved Jagan. But that is not the point. The point is whether ground 2 discloses any ground of appeal. In the view of each member of this Court it does not. It follows that that ground must also fail.

Friday, 22nd November, 1974.

 

LORD JUSTICE ROSKILL: Mr. Yahuda has linked together the main part of his argument on grounds 2 and 2(b) in so far as those two grounds complain of alleged misdirections on points of law.

 

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If we follow the first of these submissions correctly, it is that at the bottom of page 7 and the top of page 8 of Volume 10 of the summing-up (that is right at the outset of, the learned Judge’s three and a half days’ summing-up), when explaining to the jury that acts done by one conspirator in furtherance of the conspiracy are evidence against all the conspirators, but acts done by one conspirator individually, by which he clearly meant not in furtherance of the conspiracy, are evidence only against the perpetrator of that particular act, the learned Judge did not adequately define the limits of time within which that doctrine applies. He did not, for example say, that any confession made to the police, if proved to the satisfaction of the jury to have been made by an individual alleged conspirator, was evidence only against that conspirator, and not evidence against others.

It is true that at that point in the summing-up the learned Judge did not in terms put any limit upon the period of time to which that to which he was referring, related. But it is clear from what he was saying that he was distinguishing between acts done during the conspiracy and in furtherance of it and acts done outside the period of the conspiracy personally, as he put it, and not in furtherance of the conspiracy. If there was any doubt in anybody’s mind about it, it must have been removed by what appears at the bottom of page 8, when he told the jury in the plainest terms, repeating it very much later in the summing-up – on the third day – that a statement made to the police by an accused person in the absence of the other accused is evidence only against the maker. There is nothing in that point.

The other point covered by ground 2(b) is that the learned Judge is alleged to have told the jury that if they convicted upon count 1, they must automatically convict upon count 2. This is said to be based upon a passage at the top of page 8:, “And you have to deal with each count in this conspiracy quite separately as well, although obviously, having regard to certain allegations, there is necessarily an overlap as between count 1 and count 2. If, for example, you were quite sure in your minds that one or other of the first five defendants had entered in the way it is alleged, then clearly, they entered not wishing

 

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to be discovered and they must have agreed – must they not? – it would follow, I think, automatically there hut it is a matter for you, it would follow that they wished to stay and would therefore be in contravention of any condition that might well have been imposed upon them. As I say, in relation to each count of conspiracy in this indictment you must be quite sure in relation to each person charged that that person has conspired with another guilty person in relation to that conspiracy.”

In the view of each member of this Court that is not– and I stress the word ‘not’ – a direction that if they convict on count 1, they must also convict on count 2. On the contrary, all the Judge was saying there was that there was inevitably a certain amount of overlap, and that there might well be cases in which conviction on count 1 must logically be followed by conviction on count 2. But it did not follow by any means automatically.

If there was any doubt about what the Judge meant, the passage at the bottom of page 10 and the top of page 11 made crystal clear what he had in mind. I would add that it could not have been thought by anybody that the Judge was suggesting to the jury automatic conviction on court 2 if they convicted on count 1 because – this does not apply to Mr. Yahuda’s clients, but to Mr. Rodwell’s client Jagan Kalia – in the case of Jagan, the Judge in terms directed the jury that they were to acquit him, because there was insufficient evidence against him on count 2. That is quite inconsistent of course with the suggestion that the Judge was telling the jury that conviction on count 2 must follow automatically from conviction on count 1.

For these reasons Mr. Yahuda’s ground 2 must fail. That also covers the comparable grounds in Miss Turkan’s grounds of appeal.

In addition to the arguments on alleged misdirections on law in ground 2, with which we have already dealt, it is sought to be asserted, though no particulars were given in the amended grounds of appeal, that the learned Judge was guilty of certain misdirections of fact. First it was alleged that he ought to have told the jury to consider which of the various stories regarding the applicant Sidhu was correct. Sidhu’s main defence – and he put forward, as the learned Judge pointed out, four

 

[1974] EWCA Crim J1125-1  18

versions of it at different times – was that he had come in by boat. His main defence, upon which hours were spent at cross-examination at the Central Criminal Court, was that certain admissions had been exacted from him by torture by certain police officers at Southall Police Station. The jury, by their verdict, quite plainly disbelieved every word of that defence.

The important thing from Sidhu’s point of view was, if he had come in by boat, then as the law stood, following the decision of the House of Lords in  Bhagwan , he would not have been guilty of any offence. Right at the beginning of the summing-up the learned Judge, in most admirably lucid terms, explained to the jury what the significance of the so called ‘boat defence’ or ‘Bhagwan gap’ was. It must therefore have been perfectly obvious to the jury why those of the applicants who were seeking to run the ‘boat defence’ were doing so. If they had come in by boat, indeed if they might have come by boat, and not, as was alleged against them, through Manchester Airport, then the charges of conspiracy against them on count 1 and count 2 must of necessity fail, because they could not have been participants in the conspiracies charged.

As I have already said, it is perfectly obvious the jury disbelieved Sidhu’s defence. It is now solemnly sought to be said that the Judge ought to have left to the jury possible alternative defences, notwithstanding the jury disbelieved Sidhu’s story about torture and notwithstanding they disbelieved his defence that he had come in by boat. That argument would suggest that witnesses can give evidence in the alternative. There was no obligation upon the Judge to put forward anything of that kind.

It is also said, and the Court has listened to this for twenty minutes this afternoon with regret, that the learned Judge was guilty of a non-direction in relation to certain coincidences in certain birthdays. This was pressed upon us though no particulars were given in the grounds of appeal. In fact the learned Judge mentioned the point and mentioned it twice. The Court is indebted to Miss Turkan for drawing our attention to the most important references which appear at

 

[1974] EWCA Crim J1125-1  19

Day 10, page 31 and Day 4 at page 44 where this point is mentioned in terms.

There is nothing whatsoever in this ground of appeal, and it is rejected.

Monday, 25th November, 1974.

 

LORD JUSTICE ROSKILL: The fifth ground upon which application for leave to appeal is sought by Balbir Chandra Sharma reads thus: “His lordship”, that is His Honour Judge Abdela, “disallowed cross-examination on His Honour Judge Grant’s ruling in the case of  Regina -v- Bhoohe  (unreported) to the detriment of truth end justice and the vitiation of the whole trial.” It is not plain what those rhetorical words add to the ground if it is otherwise a good ground. This point, if good, might have availed Sidhu. Though it was not taken on his behalf, we agreed that Sidhu’s grounds should be treated as if they included it. Miss Turkan has not sought to advance any separate argument in support of this ground which is in her notice of appeal.

I confess to having had, and this goes for each member of the Court, considerable difficulty in following what it is of which complaint is sought to be made. At an early stage of the argument, Mr. Yahuda expressly disclaimed any wish to have cross-examined the police officer concerned, Kenth, upon what one might call conventional lines, namely in order to support that on a previous occasion his evidence had been disbelieved, or if not positively disbelieved, at least not accepted. He said that would have been unfair, but that what he was seeking to develop was a line of cross-examination designed to show that the complaints he wished to make against Mr. Kenth and Mr. Chaudry (the interpreter) had also been made in an earlier case tried before Judge Grant at the Old Bailey. We have been supplied with a transcript of the ruling of Judge Grant in that case, dated 26th March 1973.

It seems that the learned Judge in the present case was asked to rule upon this matter in advance, without any specific question being actually put to Mr. Kenth. If Mr. Yahuda chose thus to invite the Judge’s ruling and the learned Judge was

 

[1974] EWCA Crim J1125-1  20

prepared helpfully to give it, there was no reason why it should not have been done in that way. But of course the result is this Court is left in considerable doubt what the question was which Mr. Yahuda claims he was prevented from asking. We pressed him strongly to tell us what his question would have been if the Judge had ruled otherwise. Although I may be quoting him inaccurately, as I wrote it down it was this: ‘Is it not a fact that Judge Grant had previously expressed the view that he could not accept your evidence, even though he was not affirmatively saying that you were lying?’

As Mr. Justice May pointed out, when Mr. Quadri, who appeared at the trial though he does not appear in this Court, was cross-examining Kenth, in Volume 2C at page 6, he did ask almost this identical question without objection either from the Crown or the Judge. He said “I think I can leave the matter this way: is it right that in that case, where there was an inconsistency between you and the other officer, the evidence of the other officer was preferred to that of yourself? A. (after a pause) No, Sir, I don’t agree with you there.”

That was a legitimate question, properly put as to credit. As every advocate known – it is elementary evidence law – if you cross-examine as to credit, you are generally speaking bound by the answer that the witness gives. Mr. Quadri on page 7 of Volume 2C tried to go further. Mr. Watling for the Crown intervened. It might have been better if he had intervened a question or two earlier. But very fairly he allowed the questioning to continue until he was forced to intervene, and the learned Judge, absolutely rightly, then stopped the further line of cross-examination as inconsistent with the ruling which he had previously given on 16th July.

We have been supplied by Mr. Sayers for the Crown with a transcript of that ruling of the learned Judge, in which he said “As I see the situation in this case, because one officer, that is Police Constable Kenth, was involved in the case of  Bhoohe , and has given evidence which was not in accord, or was inconsistent, with other evidence given in that case, it has led to this particular discussion here. Insofar as Police Constable Kenth’s credibility is to be tested in this case as

 

[1974] EWCA Crim J1125-1  21

“a witness, it can certainly be put to him that he has been inconsistent with other evidence on other occasions: it remains at that as far as I see it, but, so far as  Bhoohe ‘s case is concerned, it is quite irrelevant to these issues, and that is as far as the matter goes.” That ruling was absolutely right, although Mr. Quadri regrettably later tried to go outside it. But he at least asked one question which was the proper question. We have no doubt if Mr. Yahuda wanted to ask that question, he would have been allowed to do so. If he wanted to go further, he would not have been allowed to do so, and that would be entirely right. This ground of appeal fails.

In ground 4 of Ramlok Sharma’s amended grounds of appeal it is said that his conviction was unsafe and unsatisfactory. It is to be recalled, since it is now some time since the hearing of these appeals and applications started, that Ramlok Shanna, though originally indicted on both conspiracy counts, was convicted only on the second count. He was acquitted on the first count. It will also be recalled that the second count, as I ventured to say earlier, is a count concerned with the alleged unlawful agreement to keep in this country those who had previously unlawfully arrived in furtherance of the conspiracy charged in count 1.

Mr. Yahuda has conceded many times in the last half hour that there was suspicion. That seems to each member of this Court to be indeed an understatement. That there was suspicion in abundance is palpably obvious. But the real question which the jury had to decide was whether, having heard the evidence for the Crown, and having heard Ramlok Sharma in the witness box, there was any lingering or lurking doubt in their minds that Ramlok Sharma was involved in the second conspiracy, or whether he was not merely in it but in it, if I may be forgiven the colloquialism, up to the neck.

There is no suggestion here that the learned Judge was guilty of misdirection or non-direction. Indeed there could not possibly be such a suggestion. In Volume 12 of the summing-up, page 19, he started to deal with the case for and against Ramlok Sharma, and from page 19 down to page 30 he

 

[1974] EWCA Crim J1125-1  22

dealt with the ease for the Crown, from page 30 onwards both before and after the mid-day adjournment of that day, he dealt with the defence. It is difficult to conceive of a more fair and balanced summing-up.

We do not find it necessary to go through it at any length. The prosecution alleged that Ramlok Sharma was a collector of black money from illegal immigrants, including some of those involved in these conspiracies, and was concerned in sending money to India to pay the agents in India involved in the Indian end of this conspiracy, to bring Indians unlawfully into this country.

Mr. Yahuda has accepted that this man was, on the most favourable view of him, guilty of many breaches of the Exchange Control Regulations. He was not charged with these, and we say nothing about them. That is quite irrelevant. The question here is (breaches or no breaches of the Exchange Control Regulations), was this man engaged and engaged up to the hilt in financing the operation of getting these immigrants and others into this country?

At his house were number of letters found variously addressed “Ramesh Esq.”, “Mr. M.R. Sharma”, “Mr. R. Sharma”, “J.D. Sharma” and “Ehri R. Sharma”. In answer to questions by Sergeant McKee, Ramlok Sharma admitted that these were all one person. In addition a telegram was found in his homo with the name “Ramshkumar” which the Crown alleged was a signal in code from India that the black money had been received. Furthermore, and the Judge dealt with this at some length at page 27 of Volume 12, three cheques totalling £302 were found which were due to be sent to “your man, your correspondent”. There were also found slightly ambiguous letters from Balbir Sharma to this applicant that “they will get the article between 10 and 15 October”. The Crown contended that there were constantly in this correspondence oblique references made to payments to agents, especially in relation to a cheque of £33.7.0d which was sent by Balbir Sharma to Ramlok Sharma, a somewhat curious sum.

The learned Judge dealt with all this, and he dealt at great

 

[1974] EWCA Crim J1125-1  23

length with the defence. To say in these circumstances that, once the jury had heard this evidence and had disbelieved Ramlok Sharma’s evidence of his innocence and non-participation in any conspiracy, this verdict can he said to he unsafe and unsatisfactory is almost irresponsible. There was overwhelming evidence, once the jury accepted the prosecution evidence, as they plainly did, and rejected the evidence for the defence. This ground of appeal also fails.

Miss Turkan has taken as the first ground on behalf of her two clients, Sahi and Bhuller, ground 12 of Sahi and ground 13 of Bhuller. We can deal with these matters most simply by reading ground 13, “That the learned trial Judge failed to direct the jury that the letter allegedly written by Kalia to Sharma was no evidence against the appellant.”

There is a good deal ofbackground to this, which it is necessary to state if the point, such as it is, is to be understood. When the defendant V.K. Sharma, known at the trial by his first name Vijay, was giving evidence, his counsel sought to ask him questions in chief about a certain letter. It soon emerged that the letter was not available and the learned Judge properly refused to allow counsel to lead in chief secondary evidence, without first having explained its absence. Regrettably some 30 pages or so of transcript were then spent pursuing this matter, some of this in the absence of the jury and some of it in the presence of the jury. In the end the learned Judge, after another trial within a trial, allowed secondary evidence to be given of this letter, notwithstanding objections on behalf of Mrs. Kalia by Mr. Rodwell.

The relevance of the letter is not readily apparent. It was apparently a letter written by Kedar to K.K. Sharma which was opened by Vijay Sharma’s wife and shown to him by her and read by him. He said that he then arranged for that letter to be collected at K.K. Sharma’s place of employment. Its contents were apparently relied upon showing Vijay Sharma’s state of mind at the time when the letter was shown to him in those remarkable circumstances. Not the least remarkable feature about the whole of this episode was the astonishing detail which Mrs. Sharma, when called as a witness, claimed to remember of the contents of this letter.

 

[1974] EWCA Crim J1125-1  24

 

However that may be, secondary evidence was allowed to be given of its contents.

The Judge dealt with this in Volume 12 of the summing-up, pages 12 to 18, when he was summing up the case against Vijay Sharma who was acquitted. He dealt with it again at Volume 13 when he was dealing with the case against Mrs. Kalia.

It is said, and as a fact it is true, that the learned Judge never said in terms that the letter, the secondary evidence which had been given in this way, was only evidence in the case so far as concerned Vijay Sharma. He did not. It might perhaps have been better if he did. But it is really such a fantastically fringe point upon which so much time was unnecessarily taken, that we do not think the learned Judge is to be criticised in any shape or form for not havingdealt with that letter in its context as relevant to and only to Vijay Sharma’s defence. He dealt with it perfectly properly as regards Mr. Kalia, and Mr. Rodwell for Mrs. Kalia rightly did not take any point on this.

The next point taken concerns Bhuller only. It arises in connection with Exhibits 150 and 151 and is in Bhuller’s grounds of appeal. The Judge dealt with this at Bay 11, pages 50 to 55. This is really one of the most remarkable features of the whole case. When Bhuller was interviewed by Mr. Reeves, he put forward in the first instance what I have referred to in giving one of the many Judgments last week, the ‘boat defence’. He denied that he had been one of the party which had come through Manchester Airport. He apparently said he could not remember when he first came into this country, but later on he admitted that he knew K.K. Sharma and that he had travelled by air as part of the party. At his trial, without giving any proper notice of alibi, he produced these two letters, Exhibits 150 and 151, which he alleged were addressed to him on 3rd January 1968, at an address in Southall. That date is well before the arrival of this party of alleged musicians at Manchester Airport.

The Crown, however, pointed out the letters had exceedingly unclear post marks, and had been produced by Bhuller for the first time at the trial. They had not been shown to any police

 

[1974] EWCA Crim J1125-1  25

officer, nor had they been produced at any of the earlier court hearings. In those circumstances the prosecution could not investigate their authenticity. The comment was legitimately made that the stamp on one of the letters from India had not been issued at the date on which it was purported to be posted. In those circumstances the Crown suggested the letter had been sent to some obscure post office in India and fraudulently franked with an earlier date.

In addition the applicant gave evidence at the trial that he had arrived by boat in December 1967. It is a little curious in those circumstances that he had written a letter of complaint about his alleged maltreatment by the police, part of which read: “Unfortunately there are four other persons arrested on different dates very recently by Southall police who also entered this Country avoiding the immigration authorities, according to them, in 1968 as I did.”

Though the learned Judge might well have been justified in refusing to allow some of the evidence on this part of the case on behalf of this defendant, he allowed it to be given. Not surprisingly the jury rejected the whole of this as a pack of lies, and there is no possible ground of complaint as to what the learned Judge did.

As a last point Miss Turkan sought to rely, though other counsel had not done so, upon the allegation that the notice provisions of the Commonwealth Immigration Act had not been complied with. Quite clearly the stamping of the passport with the word “employment” was a proper notice. Nothing whatever arise; upon this point. All her clients’ grounds of appeal therefore fail.

These are two appeals and five applications for leave to appeal by defendants convicted after a 69-day trial at 3.50 in the morning of Tuesday, 2nd October 1973, before Judge Abdela and a jury at the Central Criminal Court. The charges against them were, so far as presently relevant, charges of conspiracy. The papers in this case are voluminous. The Court has had to consider over 2000 pages of transcript and nearly 3000 pages altogether of documents. That is an aspect of the

 

[1974] EWCA Crim J1125-1  26

case to which we shall return later on, and upon which we shall require to hear counsel.

Owing to the size of the case, owing to the massive number of points which purported to be taken in the various notices of appeals, now fortunately much reduced – let it be said at once, many of these were points which ought never to have been taken – we thought it right to deal with these appeals and applications point by point rather than by appellants or applicants. Accordingly as must have been noticeable to those who have listened, we have already disposed of the great bulk of the points by a series of short judgments which I have on Thursday and Friday.

Two serious points only remain. Both immediately concern Mr. Rodwell’s clients. One is that in the case of his male client, Jagan Nath Kalia, the summing-up of the learned Judge was deficient to the point of serious inadequacy. The second concerns not only his clients, but also Mr. Yahuda’s and Miss Turkan’s clients. It has become known as the ‘tired jury’ point.

It is necessary, since this will be the main judgment on these appeals and applications, to say a few words about the background. We have already indicated that there were two conspiracy charges, count 1,a conspiracy to get these immigrants into this country illegally at Manchester Airport and count 2, conspiring to keep them in this country by enabling them to fail to comply with the conditions imposed when they entered, which allowed them to remain for not less than one month and not more than three months.

Mrs. Kalia was convicted on both counts, by a majority verdict on count 1. Jagan Kalia was convicted on count 1 only and acquitted on count 2. Bhuller, Miss Turkan’s client, was convicted on both counts. Sahi was convicted on both counts and so was Sidhu. Ramlok Sharma was convicted on count 2 but acquitted on count lo Balbir Sharma was convicted on both counts.

It is necessary to say a word or two about the background. The Crown case was that on 25th October 1968 a group of twelve Indians purporting to be musicians, arrived at Manchester Airport. They were apparently carrying a remarkable variety of musical instruments, few, if any, of which any of those in the party had

 

[1974] EWCA Crim J1125-1  27

ever played in their lives or were in fact able to play. They had entry certificates and passports, and they were allowed, as I have already mentioned, entry for no less than one nor more than three months.

The Crown case was that Bhuller, Sahi and Sidhu and Balbir Sharma were among that party. It was also alleged Mrs. Kalia – and her brother-in-law, Mr. Jagan Kalia, were among those who had organised their entry. They were in this country all the time. The Crown also alleged that one of the main conspirators, if not the ring leader, had been Mrs. Kalia’s husband, Kedar Nath Kalia, who was not before the Court, and of whom I shall not say very much, because if he ever returns to England, it may well be that he may have, however belatedly, to stand his trial on these conspiracy charges. It was also alleged that Ramlok Sharma, one of the present applicants, was involved in the reception of this party.

The background of this case was that, with the intention of making fraudulent representations to the High Commission office in Bombay in order to induce the grant of these permits and certificates and the endorsement of their passports allowing entry into this country, a number of these Indians arrived on 23rd October at the Bombay office of the High Commission. That is two days before their arrival here. They had with them a completed application form for an entry certificate, an agreement between the Central Administrative Council and a Mr. Ram Krishan Sharma of Hayes, Middlesex for the running of a musical tour to Britain, a brochure or purported brochure publicising it and a number of airline tickets issued by Alitalia (leaving on 24th October and returning on 18th November),and a contract between the Regional Passport Office and the Immigration Office on the one hand and their sponsor, Ram Krishan Sharma, and the passengers on the other hand, showing the supposed financial security of this party. On the strength of all this this party got permits and got into England.

The case was really a very simple one. We will not go through it in any detail. The case for the Crown was the two Kalias now sitting in the dock were involved, as was Ramlok Sharma, in organising the entry and in keeping these people here after they had got in, and that the others entered illegally

 

[1974] EWCA Crim J1125-1  28

in the way I have described. The greater part of the Crown case depended upon alleged statements – they can properly be called confessions – allegedly made to the police when some of these people were first interviewed. The essential issue for the jury was, did they accept the police evidence or did they accept the denials of the various defendants? If they accepted the police evidence, the evidence against all the accused was quite overwhelming. If they had doubt about it, then of course they should acquit. If they were convinced that the defence was true, equally they should acquit. But that would have involved not only the fraudulent taking of statements by the police, but also in the case of at least one of these accused, accepting as true most serious charges of brutality at Southall by police officers trying to obtain confessions from innocent people.

The learned Judge summed this case up over a period of some three and a half days. This Court desires in the warmest terms to commend the summing-up of the learned Judge. It started on what must have been the 65th day or thereabouts of this trial and ended on the 69th day. It is very difficult, at the end of a long case, to keep any summing-up in perspective, orderly and clear and to hold the jury’s attention.

But, however good it may have been in its balance and in its fairness, when it came to deal with Jagan Kalia, the learned Judge, for once, fell below his overall standard. It is said that the summing-up was not only incomplete and that there were non-directions, but that it was positively unfair in that it did not deal with the case for the Crown against this man, it did not deal fully with this man’s defence, but was devoted for some fifteen pages or so merely to attacking this man’s credibility, and saying that his story could not possibly be true. It is only fair to the learned Judge to point out that this part of the summing-up came right at the end of the third day. If the learned Judge was guilty of inadequacy, we have no doubt it could be amply accounted for by the fatigue which he must have by that time been feeling. This Court has, however, to say, with respect and regret, that in this respect alone this part of the summing-up is somewhat sketchy and deficient. The reason was no doubt the reason which I have just indicated, sheer fatigue.

 

[1974] EWCA Crim J1125-1  29

 

But having said that, one can understand why the learned Judge dealt with this as he did, because the point was very short indeed. As I have said, if the evidence of the police officers was to be believed, they had got a complete confession from this man. We have not got a transcript of Mr. Reeves’ (the police officer) evidence in chief. But it is agreed that we can take it that it was given at the trial as it is set out in the statement which was before the magistrates in the committal proceedings. The relevant passages appear at pages 74 and 75 of the depositions. I am not going to read them all. At page 75 the questions and answers run thus: “Sgt. McKee said: ‘How did you help your brother?’ He (Jagan Kalia) said: ‘With the promotions’. Sgt. McKee said: ‘Yes’. He said: ‘I only helped him.’ Sgt. McKee said: ‘How did you help?’ He said ‘I made some of the arrangements for him.’ Sgt. McKee said: ‘What arrangements did you make for him? Did you know they were not real musicians?’ He said ‘Yes I knew that, Kedar Nath arranged it in India.’ Sgt. McKee said: ‘You are arrested on suspicion of conspiring with other people to contravene the. Immigration Acts.'” and he was then cautioned. The defence was a complete denial that any such confession was made. That simple matter was the issue which the jury had to decide, aye or nay, had the Crown proved that this confession was made.

We have got the transcript of the whole of Jagan Kalia’s examination and cross-examination at the trial and we have read it. It cannot be said, without I hope making any harsh comments, that he fared well in the witness box. On a number of matters he was manifestly shown to be untruthful. The learned Judge was perfectly entitled to point this out in terms, and he did so. We would think it would have been better had the learned Judge read the passage I have just quoted and summarised this man’s defence more fully than he did. But he may well have thought (one does not know) that to elaborate could only operate to the disadvantage of this appellant. Accordingly he dealt with the matter as he did.

We agree that that part of the summing-up might have been fuller. It would have been better had it been so. But we cannot find in that passage any ground for saying that this misdirection

 

[1974] EWCA Crim J1125-1  30

or non-direction was such as would justify us in quashing Jagan Kalia’s conviction. That ground therefore must fail.

We turn to consider the ‘tired jury’ point, which is common to all appellants and applicants in this case. This is a matter of considerable general importance. On the 69th day of the trial the Judge renewed his summing-up at 10 o’clock in the morning and he continued to sum up until 12.20 when he then sent the jury out. There was, as Mr. Rodwell put it, so far as counsel were concerned, no further contact with the jury until 1.07 the following morning when the jury came back into Court, and the Judge, having sent for counsel, read the note he had received from the jury. I will read it in full, because Mr. Rodwell based much of his argument upon it: “Several members of the jury are feeling tired and require a break and in their present condition feel that they are unable to give a proper verdict on the remaining defendants.” Then the Judge interposed. “That is explained by the next sentence.” The note from the jury went on: “We are at present about 75 ½ of the way through our verdicts. We would appreciate advice on this point as we could continue for some hours.” That note was signed apparently by the foreman.

The learned Judge went on: “Mr. Foreman, unfortunately there are no facilities for accommodating you overnight, otherwise we would certainly have endeavoured to make arrangements for that, because, you see, once you are sworn as a jury to go and consider your verdict you have to remain together the whole time and to endeavour to come to a conclusions It is in very exceptional cases – believe me, this is almost becoming one – when a jury is kept overnight, where accommodation is provided, and that is normally what happens in, say, top security cases or something of that sort. Now believe me, everybody is very, very indebted to you for the obviously conscientious approach that you have been making to your consideration of the circumstances of this case and the individuals. Would I be right in assuming, Mr. Foreman, that you have now indeed arrived at conclusions in respect of certain defendants in respect of certain counts?” Certain discussion then took place and the learned Judge offered to take the verdicts at which by then they had arrived, but was stopped by the foreman. This is borne out by a passage at the top of page 26, where the

 

[1974] EWCA Crim J1125-1  31

Judge said “Would that be easy or would you rather keep that contained in your minds the whole time?”. The Judge then gave the jury, for the first time, a majority direction, some thirteen hours after they had gone out. We can readily understand why. He did not want to interrupt them earlier. He was under no obligation-to do so. It was a very long case. They appeared to be getting on happily. They had not come back. He then arranged for further refreshments. The jury went out again and came back and returned their verdicts at 3.50 in the morning, some fifteen hours or so after they had first gone out.

Let it be said at once that these were clearly highly perceptive verdicts. In one case there was a majority verdict. There were a number of acquittals, and the acquittals were in cases where the case for the Crown undoubtedly was much weaker than in the cases where the jury convicted. But the harsh fact is that the jury did not come back with their verdicts until 3.50 in the morning, which, so far as any member of this Court is aware, must be quite unprecedented in this day and age.

As a result of this matter being drawn to our attention, we were naturally disturbed and asked the Central Criminal Court for a report. We are indebted to those at that Court, who have supplied a report. That shows that unknown to counsel – there was no reason why this should have been known to them – from about 6 o’clock onwards in the evening after the jury had retired, the learned Judge became worried about the position, understandably. I will read the report. There is no secret about it: “They retired to consider their verdict at 12.20 p.m. on 1st October 1973 and had lunch in their room shortly after 1 p.m. and during the afternoon they had tea. At about 8 p.m. the Judge was very unhappy about the length of time they had been out considering their verdict and sent the duly sworn Bailiff in to see if he could help in any way and if they required refreshment. They requested a hot meal if possible (this was provided) and at the same time they indicated they required no help and were making progress. The Court Clerk and myself feel sure that refreshments were again provided between 8 p.m. and 1 a.m. and they were again asked if the Judge could help and

 

[1974] EWCA Crim J1125-1  32

reply was ‘we are making progress’. As a result, after a 3 month trial, the Judge felt very strongly there was nothing he should or could do to interfere with their deliberations. The record shows he had them back at 1.07 a.m. for majority directions. After that neither the Court Clerk nor myself have any recollection of the Jury being disturbed until they rang at just after 3.45 a.m. to say that they had agreed. When the Jury requested a hot meal at 8 p.m., Judge abdela and I discussed the possibility of providing some sleeping accommodation but having regard to the time of night we came to the conclusion that this was impossible ….”.

At the end the letter says: “Since this incident the Courts Administrator (Mr. Boyd) has given instructions that on long trials, if it appears, say about 4.30 p.m., the Jury will be unlikely to reach a verdict by 7 or 8 p.m., arrangements must be made immediately for hotel accommodation to be found for the Jury or at any rate sleeping accommodation to be provided.”

Mr. Rodwell, as I have already said, founded his submission upon the passage in the jury’s note to the Judge. He said if they were unable to come to a proper verdict in their condition at 1.07, a fortiori they remained even more unable so to do at 3.50. That is a complete non-sequitur. First of all the learned Judge gave them a majority direction, so that any disagreement within the majority rule allowed by law could be quickly resolved and no doubt it was. Secondly, they had some more refreshments at that point.

One has this further point, as I have already pointed out, that whey they did come back, their verdicts, if I may say so without presumption, were perceptive and sensible. It is quite wrong therefore to say that tired as they were, they were incapable of going on to the end.

Mr. Rodwell also said that because the Judge had summed up the case of the two Kalias last, the jury would have dealt with them last and that must therefore have been in the last 24¾ per cent of the time which was occupied. One does not know, and this Court is not prepared for one moment to speculate. The jury may well, the case for and against them having been summed

 

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up last and they allegedly being more or leas the ring leaders, have considered their cases first. We do not know and we are not prepared to speculate.

Mr. Sayers sought to justify what happened as a matter entirely for the Judge’s discretion. He argued that the learned Judge having exercised his discretion in the way in which he did, it was not open for Mr. Rodwell or anybody else to complain in this Court. We do not think that is the right approach. The learned Judge in an almost impossible situation did exercise his discretion properly. But the central question is whether, this situation having been allowed to arise, a verdict returned in those circumstances canbe allowed to stand or whether it ought not to be treated almost automatically, and notwithstanding the considerations that I have already mentioned, as unsafe and unsatisfactory?

We asked Mr. Rodwell what else the learned Judge could have done, since nobody had anticipated this eventuality and apparently no arrangements had been made for hotel accommodation. The best suggestion Mr. Rodwell could offer was the jury may have been locked in the cells of the Central Criminal Court for the night. That is hardly a suggestion which commends itself to this Court as a serious solution of an almost impossible problem. Nor could they have spent the night as it were bedded down in the jury room with no facilities of any kind for washing.

The truth is, of course, that with hindsight it is very easy to critise what happened. This Court is not prepared to criticise. No counsel had suggested in Court that this was a contingency which was likely to happen. The Judge was deeply disturbed and worried. What was he to do in those circumstances? This case had by then taken 69 days, which it ought not to have done. That is a matter with which we shall deal later. Was he to take the verdicts at which the jury had already arrived and then discharge the jury from giving the remainder? That seems an impossible situation, and would have resulted in what one could only describe as a “lucky dip”, which would have undoubtedly led to appeals to this Court by those who had the misfortune to be selected for this treatment. The other alternative would have been have discharged the jury and to have started the trial all over again.

 

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That is something which is too preposterous to be considered seriously.

The jury, as everyone agrees, displayed great care and thoroughness throughout this trial, and no doubt the tributes paid to them at the end by the learned Judge and by counsel were well justified. The learned Judge was placed in a position in which he had to do the best he could. He did the best he could. There was nothing else that he could do. This Court expresses the hope that this situation will never be allowed to recur. Having regard to what appears in the letter I have read, it seems clear that suitable arrangements are now made at the Central Criminal Court and that this situation will not recur. Unfortunate as it was, we cannot say that this situation automatically involves these verdicts being unsafe or unsatisfactory.

As I said at the beginning of this judgment, a massive number of points have been taken on behalf of the various appellants and applicants. None of them have any substance at all, except the points about non-direction in the case of Jagan Kalia with which we have already dealt and the ‘tired jury’ point. For the reasons we have given on Thursday and Friday and in one or two further short judgments this morning, the various grounds sought to be advanced all fail. For the reasons given in the judgment I have just given the two points of substance, the ‘tired jury’ point and the non-direction argument in the case of Jagan Kalia also fail. In the result therefore the appeals by Daya Kalia and Jagan Nath Kalia are dismissed, and the applications of Bhuller, Sahi, Sidhu, Ramlok Sharma and Balbir Sharma are refused.

(The Court heard submissions on sentence in respect of Daya Kalia and Jagan Nath Kalia)

 

LORD JUSTICE ROSKILL: We are now concerned only with the applications for leave to appeal by the two Kalias against their sentences. The learned Judge passed sentences of eighteen months’ imprisonment upon Daya Kalia on the two counts on which she was convicted, those two sentences to run concurrently. A sentence of eighteen months’ imprisonment was passed on Jagan Nath Kalia upon the single count, count 1, on which he was convicted.

 

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It has been urged upon us that however well merited these sentences were, we ought now, as an act of mercy, not require them to be served. I should explain that when these appellants were convicted, they at once started to serve their sentences. An application for bail was made to Mr. Justice Forbes. He granted that application. They have accordingly been out on bail for about a year. The reason why the hearing of these appeals has been so delayed is because of the time needed to prepare this enormous number of documents.

This Court desires to say as plainly as possible that where (exceptionally) intending appellants or applicants are released on bail and delay follows in the hearing of the appeal, that delay cannot and must not be relied upon, whenever the appeal or application fails, as a reason for their not being sent back to prison to serve their sentence. That is usually made plain when bail is granted, and it must be clearly understood that that is so. Wisely Mr. Rodwell did not seek to advance that argument.

The submission is that these two appellants were people of good character. Jagan is a sick man, and she is a mother of children. Her husband, who was said by the Crown to be the ring leader in this conspiracy, has disappeared to India, and in his own interests may be well advised not to return. The question therefore is whether simply as an act of mercy, and not because the learned Judge’s sentences erred in any way in principle, this Court should now suspend these sentences. After giving this the best consideration we can, and remembering also the ordeal that these two went through during this 69-day trial, we propose, quite exceptionally, to extend mercy to both of them.

Accordingly we shall deal with the matter thus. We shall grant leave to appeal against sentence, and treating this hearing as the hearing of the appeal, affirm the sentences of eighteen months on each (in the case of Mrs. Kalia concurrent on each count) but will suspend them for a period of two years from todays.

Now, Mrs. Kalia and Mr. Kalia, just listen to me for a moment. That means you will not go back to prison. You will be able to go back to Coventry, but if any time during the next two years either of you commits any other offence of any kind, you will

 

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be liable to have these eighteen months sentences activated, and in all probability they will be brought into effect consecutively with any other sentence that there may then be given to you. We think you have already learned your lesson. Never again, however much you are moved to try and help your own people, get yourselves involved in anything like this.

It is very distasteful to this Court to have to criticise counsel, but from time to time situations arise in which this Court would be failing in its duty if it did not do so. As Lord Justice James remarked, there are occasions in which it is easier and better that the criticism should come from this Court than from the trial Judge.

We have in this case been supplied with over 2000 pages of transcript. The reason why we had to have them was because the grounds of appeal were such that the Registrar, and indeed Mr. Justice Forbes, both thought it necessary for extensive transcripts to be ordered. As a result this Court in this case is in a very much better position than it might otherwise be, to assess why it was that the trial took 69 days, a fact which I am afraid we have already mentioned more than once.

There can be, we regret to say, no doubt that one reason why it took so long was because of the excessive time taken by certain counsel in cross-examination – not all counsel involved are present on this appeal, and it is only fair to say they have not been heard on this matter. I gave some figures a few moments ago, but I will repeat them, so that they are on record. They show the time that was taken. Kenth, a police officer, vitally involved, was cross-examined for 291 pages of transcript; Reeves, another police officer, was cross-examined for 180 pages of transcript; McKee, another police officer was cross-examined for 166 pages. Those figures do not include examination-in-chief nor the time occupied during the trial within the trial. In addition there were 161 pages of submissions at the close of the case for the prosecution.

Now, no one doubts for one single moment, and let this be said as clearly as possible, that nothing must be allowed to deter counsel from carrying out their instructions and doing their duty to their clients. But if I may borrow some language used in

 

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R. v. Simmonds and Others51 Criminal Appeal Reports 316 , by Mr. Justice Fenton Atkinson, as he then was, giving the judgment of the Court at page 326 of the report “Whilst in no way detracting from counsel’s duty to his client, he can and should exercise in the interests of justice as a whole a proper discretion so as not to prolong cases unnecessarily. It is no part of his duty to raise untenable points at length or to embark on lengthy cross-examination on matters that are not in truth in issue.” The learned Judge then went on to deal with the detail of that case.

It is worthwhile recalling, since this happened within the memory of some older, though not younger, members of the Bar, what was said in this Court and subsequently by the Lord Chancellor in the House of Lords in  Mechanical and General Invention Co. Ltd. and another v. Austin and Austin Motor Co. Ltd.1935. Appeal Cases 346 . That was a civil case and perhaps more latitude should be allowed to counsel in a criminal case. In this Court two leading counsel, both at the top of their profession, were severely criticised in these terms by the then Master of the Rolls, Lord Hanworth: “There remains one feature of this case upon which, in association with my colleagues, I desire to make serious comment – that is the cross-examination to which the leading actors on either side, Mr. Lehwess and Sir Herbert Austin, were subjected. Measured by the shorthand note, it appears that Mr. Lehwess’s examination occupied 80 pages; his cross-examination occupied 265. The examination of Sir Herbert Austin occupied 39 pages, and his cross-examination 148 pages. There is a tedious iteration in some of the questions asked, and prolonged emphasis is laid on some matters, trivial in relation to the main issues. Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness. We desire to say that in our opinion the cross-examination in the present case did not conform to the above conditions, and at times it failed to display that measure of courtesy to the witness which is by no means inconsistent with a skilful, yet powerful, cross-examination.” Those were Lord Hanworth’s words.

 

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In the House of Lords the Lord Chancellor, having cited those words, went on: “With that censure I agree, except that I cannot think it can he justly applied to the counsel who appears on behalf of the plaintiffs or to any of the counsel who appeared at the bar of your Lordship’s House. It is right to make due allowance for the irritation caused by the strain and stress of a long and complicated case, but a protracted and irrelevant cross-examination not only adds to the cost of litigation, but is a waste of public time. Such a cross-examination becomes indefensible when it is conducted, as it was in this case, without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law. It is not sufficient for the due administration of justice to have a learned, patient and impartial judge. Equally with him, the solicitors who prepare the case and the counsel who present it to the Court are taking part in the great task of doing justice between man and man.”

This Court has thought it right in the present case to remind those concerned that public funds are involved on a very large scale. As I mentioned earlier, the costs of this trial to the public in terms of fees are over £60,000. That makes no allowance for the Judge’s salary, the court time, staff time and all the rest of the expenses involved at the Central Criminal Court. It is not easy for a trial Judge to intervene where this sort of thing happens. If he does so, he is apt to be criticised in this Court for taking sides with one side or the other, depending on whether the protracted cross-examination is on behalf of the Crown or on behalf of the defence.

What we are saying, though of course in immediate relation to the present case, applies at all times. The trial Judge can and should do his utmost to restrain unnecessary, prolonged cross-examination, and this Court will unhesitatingly support him when he does, as Judge Abdela did with great courtesy, patience and skill in this case.

There is another weapon to hand of which perhaps it is right this Court should remind trial Judges both at the Central Criminal Court and elsewhere, namely that ultimately all questions of the sums to be disbursed from public funds in

 

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respect of fees are subject to taxation. If in any case the trial Judge is of the opinion that undue time has been taken, there is no reason why he should not – on the contrary, in the view of this Court he should – direct the taxing officer of the Court to reflect that fact in what is properly allowed on taxation.

More we will not say. Less, we cannot say. We would only hope that nothing like this in length will again be allowed to happen at the Central Criminal Court or elsewhere. We only want to repeat that it was no fault whatever of the trial Judge. He did his utmost to stop it.

NOTE

This Note is added to the transcript by leave of the Court. The numbers which have been added indicate the separate judgments which were successively delivered as the hearing of the appeals and applications progressed.

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