All England Official Transcripts (1997-2008)
R v Chaaban
Criminal evidence and procedure – Case management – Refusal of application for adjournment – Judicial control of timetable – Fairness of trial.
¬† EWCA Crim 1012
(Transcript: Smith Bernal)
¬†COURT OF APPEAL (CRIMINAL DIVISION)
¬†JUDGE LJ, GRIGSON J, JUDGE STEPHENS QC (Sitting as a Judge of the CACD)
¬†20 MARCH 2003
¬†20 MARCH 2003
P Rose for the Appellant
A Haycroft for the Crown
¬†(reading the judgment of the court):
¬† The appellant is a family man of previous good character, in his early forties. On 25 May 2001 in the Crown Court at Middlesex Guildhall before His Honour Judge Blacksell QC and a jury, the appellant was convicted of blackmail. He was sentenced to six years’ imprisonment. His co-accused, Kevin Lindon Muhammed changed his plea at the latest possible stage to guilty of blackmail. He was sentenced to four years’ imprisonment. The appellant appeals against conviction and sentence with leave of the single judge.
¬† The appeal against conviction is founded in part on criticisms of the trial judge’s handling of the case, and quite separately, on the basis of fresh evidence coming to light after conviction, from the prison in which the co-accused and the appellant himself were serving their sentences. Before examining these matters more closely we must briefly summarise the essential facts.
¬† This was a classic case of blackmail with a real victim, a widow, living in London supported by her family, who became involved in a sexual relationship. Given her culture and background the family would have been horrified if they had discovered the relationship with the co-accused, Muhammed. The consequences to her would have been extremely unpleasant. For her, therefore, exposure would have been catastrophic.
¬† The appellant worked for the victim. He was regarded as a confidante. His wife was regarded by the victim as a friend. Through the appellant, though the precise circumstances of the introduction are of no great importance, the victim was introduced to the co-accused. He was a security man and at one time, at any rate, acted as a bodyguard. For the reasons already given the affair required the exercise of the greatest possible discretion.
¬† In March 2000 the victim handed the co-accused ¬£25,000 in cash, part of a withdrawal of ¬£31,000 from her account on 2 March. She believed that he needed the money in connection with court proceedings. Later on, unknown of course to her, a video recording was made of their sexual activities at the hotel where they met on 10th and 14 September 2000. Subsequently the victim was sent a copy of the tape which was made, together with a letter demanding ¬£750,000.
¬† The Crown’s case was that the appellant and Muhammed were jointly involved in this plot to blackmail. The appellant’s case was that he was in fear of his co-accused; such part as he had played in this incident was entirely innocent; he had been acting as a go-between, but he was certainly not involved in the criminal part of the enterprise created by the co-accused.
¬† Taking the matter in a little more detail. The evidence of the victim relating to the blackmail letter was that she was told to hand the money to the appellant. The letter threatened disclosure if she did not comply. She called upon the appellant’s wife, and then the appellant for help. According to her the appellant discouraged her from calling the police. In due course the appellant handed her a package which he said had come from the co-accused – that is of course the victim’s former lover. Inside, apart from a video, there was an article, in effect a mock up of a well-known Sunday newspaper. She wanted to tell her family and the police, but the appellant, according to her, refused to take her to the police, telling her not to go as the paparazzi would be involved and the situation would become worse. She eventually did go to the police. She gave them everything she had. When she gave it to them, according to her evidence, all the various different envelopes and papers and packages had been opened. She thought she had opened the package containing the video tape. She also believed that the appellant had touched various items and indeed everything that she had touched herself.
¬† It is not irrelevant that none of the contacts were being made directly by the co-accused. Everything that he was doing was done through the appellant, and it was the appellant who was communicating to the victim saying things like, “this was the way the co-accused wanted it done.”
¬† There was an occasion when the victim’s daughter was at home in early October when a man arrived at the house, possibly she thought a mini-cab driver, and handed over two bulky envelopes, one was addressed to her and the other she put on her mother’s bed. She too gave evidence that the appellant had told her mother that the police should not be involved. She said that she heard him say to her mother that she should pay to have it sorted out. She also said that the appellant pointed out that if she did not pay, his, the appellant’s, son would be killed.
¬† The victim’s driver also spoke to the appellant about these matters. He said that they should tell the police. According to his evidence the appellant said that this would magnify things. It was “only a simple matter”. The driver appreciated that the appellant and the co-accused Muhammed were friends so he suggested that they should all meet. To his surprise the appellant said that he did not know how to contact the co-accused, nor did he have his address. They communicated via a pager. Pagers and telephone calls have some importance, as we shall see later in the judgment. After a good deal of such discussion, which the driver insisted had taken place with the appellant, he and the victim decided that the police should be contacted without the appellant being told. The appellant in his evidence denied that any such discussion had taken place. Indeed far from him discouraging attendance on the police, according to his account, he advised the victim and her daughter that the police should be informed. Their evidence, when these points were put to them, was adamant to the contrary. If the jury disbelieved the appellant’s evidence about his attitude to the police, then they were entitled to conclude that for a confidante or friend his attitude was extremely odd, unless he may in some way have been involved.
¬† In circumstances to which we shall come later in the judgment, having pleaded guilty immediately before the trial was due to take place, Kevin Muhammed, the co-accused, gave evidence for the Crown. He explained how he had been an acquaintance of the appellant, and how he had met the victim. She knew that he was a married man but they spoke together of marriage. He said that the appellant acted as some sort of chaperone. There came a time when he and the victim started to argue. He suggested that there was some business he could help the victim with. The precise details are unimportant but he said that he received ¬£25,000 from the victim. According to his evidence, denied later by the appellant, he gave half of this sum of money to the appellant. He understood from him that the appellant had a sick nephew who was in need of medical treatment and had to be flown from the Lebanon to Switzerland. Then, again according to the co-accused’s account, he began to think that the victim might be, to use the colloquialism, two-timing him. He spoke about this to the appellant. The appellant confirmed his fears. The victim in fact denied that she had associated with any other men. Returning to the co-accused’s account, he said that they both, that is he and the appellant, decided that the victim should be taught a lesson. According to Muhammed the idea came from the appellant and he went along with it. The appellant also had some grievance of his own about pay.
¬† Muhammed described the occasion when he and the appellant bought a laptop. According to him, the co-accused typed the letters but they were in effect jointly compiled. At first the intention was to ask for ¬£250,000, but according to this evidence it was the appellant’s idea to increase it to ¬£750,000. The letters, he said, were prepared before the video was made. He also maintained that it was the appellant who set up the equipment for making the video. They shared the cost of the purchase of an alarm clock camera from a shop called Spymaster. The details of how the video were made and what is shown on it are obviously irrelevant to this judgment. The tape was edited at the flat of the appellant’s brother. Something like half an hour of what are usually described as “highlights” were made and three copies were made. The appellant, he said, kept two. The first tape and a letter were sent to the victim. He denied that he had sent anything to the daughter or to the complainant. He said that thereafter he made contact with the appellant by pager. He said the letter ‘Z’ was used to identify the appellant. He said that that too was the appellant’s idea. He assumed that the money would be split equally and he added that they did not take precautions to avoid fingerprints.
¬† He was of course rigorously cross-examined about the circumstances in which he had come to change his plea at the very last moment. He agreed that he had lied to the police throughout the interviewing process and the police investigation. Nevertheless, he insisted that he had been involved with the appellant and so far as he was concerned he wanted to teach the victim a lesson because she had lied to him.
 ¬†There were a number of other matters of evidence on which the Crown relied. First, the pager contact record subsequently examined showed references to this man Z and indeed an instruction for the appellant to call Z immediately from a phone box. The critical dates, it will be remembered, when sexual intercourse was videoed, were 10th and 14 September. Prior to 11 September there was no record of telephone calls from the appellant to the co-accused. Afterwards there were frequent calls: 29 telephone calls from the appellant’s home to the co-accused’s home or the home of the co-accused’s parents, at all hours from 11 September to 5 October, and significantly between 1 October and 6 October, and on the timing, often immediately after the receipt of a pager massage from Z.
¬† Second, when the appellant was arrested on 11 October evidence was admitted, despite objection by counsel for the appellant, that ¬£12,500 in cash in heat-sealed packets of ¬£50 notes was found at the appellant’s home hidden beneath a wardrobe. This cash had come from the victim’s bank account. She said that she gave ¬£25,000 to the co-accused, and the appellant agreeed that she had indeed told him that she had done so. It was the co-accused who said that he had given ¬£12,500 to the appellant. The appellant denied it, and gave a number of explanations of the source of this money. In his evidence, he said that it represented, in effect, the repayment of loans from him to the victim. She herself denied that she had borrowed money from him, but she did agree that on separate occasions she had given him sums of money which had nothing whatever to do with blackmail or pressure, ¬£5,000, ¬£5,000 and ¬£2,000.
¬† Next, again contrary to a submission from counsel for the appellant, evidence was put before the jury from the sales manager at Spymaster. He sold a Bush Alarm Clock Camera on 31 August. It was the only such camera he sold between 20 August and 9 September. The sale was made to two men of Middle Eastern appearance. One was the co-accused Muhammed, who said that the appellant was the man with him at the time of purchase. The manager gave evidence that he explained how the equipment worked. He was paid just under ¬£450 in cash for the equipment. He gave a description of the two men but he did not, nor could he, identify either man. There was no identification parade. The evidence was produced at a late stage, after the co-accused had pleaded guilty and made a statement for the prosecution. Until then the police had no knowledge of the acquisition of the camera. The potential significance of this evidence was that it coincided with the co-accused’s evidence of where and in what circumstances the equipment was bought, and that he was not alone but the two men were together when the purchase took place.
¬† Next, there was an issue which assumed considerable significance in the course of and in particular before the start of the trial, the arrival of the video tape in a bulky envelope which was handed to the police. The police said the envelope was secure at that time. DC Thomas, opened it from the bottom end and inside he found a video cassette together with a newspaper cutting. These items were sent for scientific testing. A palmprint from the appellant was found on the side of the video. There was an issue therefore about whether the envelope had indeed been sealed throughout or opened at any stage. If it had been opened and the appellant may have handled the video innocently, his palmprint was deprived of significance. At trial the defence was able to point to a body of evidence, including the victim’s own evidence, that the envelope containing the video was opened by the officer in her presence, and that the appellant had, as it was put, “handled everything” – the everything of course included the video. A great debate developed before trial about the expert evidence.
¬† Finally in this summary, the appellant certainly lied to the police in interview. He lied in relation to two significant points: he lied about the ¬£12,500 found at his home under the wardrobe. On arrest, before the money was found, he said that there was no such sum of money in the house. Then he said that it belonged to his children and had come from the Lebanon; then that it was money from independent sources for serious dentistry he needed; then that the victim had given him a large sum of money to fund the funeral arrangements for his mother. His account at trial has already been narrated. He also lied about his ability to contact the co-accused and denied knowing his telephone number.
¬† The defendant himself gave evidence. He told the jury that he felt very bad about what had happened to the victim. He himself would not do and he had not done any such thing to her. He knew about the relationship between the victim and the co-accused. He said that there was a time when they were madly in love but they had arguments. As to the package he had nothing to do with it. He had not been to the hotel where the filming took place. He had not been present when the camera was purchased. He had indeed read the letters but that was at the request of the victim, and he touched everything that she showed him, and told the police that he had done, and that explained his palmprint on the video cassette. He knew nothing about computers. He had no laptop himself. He did not help Kevin Muhammed write letters. Indeed in effect everything that the co-accused said about the transaction was false. It was true that he had paid bills for the victim from time to time and she repaid the debts, giving him the money in a sealed bag. She was kind and looked after him. He had not explained to the police about the money because he was frightened and confused by what had happened. The police turned him and twisted him upside down, and so in his confusion he was unable to give them the help he would otherwise have given them. Certainly, it was not the co‚ÄĎaccused who had given him any money and the way in which he was confused by the police explained any inaccuracies or inconsistencies. He told the jury that he had received a threat against his own family. The victim told him not to worry about it, she would sort it all out with the co-accused. He also said that she did not want to go to the police, she did not want this story to see the light of day. He had never watched the video; he had never been involved in any reconstruction of film and he had not been involved in the filming. He said that it was coincidence that he had been telephoned on 11 September by his co-accused in the early hours to find out where the victim was. In effect, therefore, this was a clear unequivocal denial of any involvement in the blackmail.
¬† The appellant’s wife gave evidence. She said that she had been shown the blackmail letter by the victim. She told her to report it. On 6 October an envelope had come through their door minutes after they got in. It was opened by her son. The appellant had thrown the original envelope away. Inside was a tape and the Sunday newspaper mock up, but no letter. The only letter she had seen was the first one which the victim said that she had received.
¬† There was evidence of the appellant’s good character and the defence of course relied on it, and pointed out that the victim might have been mistaken about the money she had given the appellant.
¬† The judge summed the case up to the jury. The jury retired, and in due course returned the guilty verdict.
¬† We can now come to the criticisms made in support of the appeal. First, we must deal with the criticisms which arise from the way in which the judge managed the trial: in particular the refusal by the judge to allow a defence application for an adjournment and the imposition by the judge of a timetable on the trial. This, it was argued led to a sense that everything was being rushed.
¬† The essential facts of these matters can be described fairly shortly. On 20 April 2001 when the trial was due to start on 30 April, notice of further evidence was given by the Crown in the form of a statement made by an expert witness on 29 March. That expert witness suggested that the envelope containing the video appeared not previously to have been opened, but she made clear that she could not exclude the possibility that it had. That went to the issue: how had the appellant’s print been deposited on the video itself?
¬† The statement of DC Thomas asserted that he had not opened the envelope in the usual way, but had opened it from the bottom. Primary and secondary disclosure was provided in advance of the trial. The defence attended New Scotland Yard to review all the unused material on 5 April, and a defence expert attended at New Scotland Yard on 2nd and 23 April. We have heard no evidence from or about him. The defence statement was not served until 17 April, and on 27 April the defence asked for further disclosure on the basis that it was not fully satisfied about that part of the process. So far as that issue was concerned, further disclosure was subsequently provided but it appears, so far as we understand it, to have been peripheral – certainly peripheral to the issues in this appeal. At the same time as the request for further disclosure, the defence indicated that it would require further time to obtain its own report on the state of the envelope. An extension was granted until 8 May.
 ¬†On 8 May the Crown applied for part of the case to be heard in private – that of course related to the identity of the victim of blackmail, and so on – at a time when both defendants were pleading not guilty. The co-accused was in custody, where he had been for some seven months or so. The appellant was on bail.
¬† On the 8 May, the defence sought an adjournement. They wanted to instruct experts, both on handwriting issues, and the sealed envelope. The judge queried why they needed any expert. The Crown was not alleging that any relevant handwriting had come from the appellant. As to that, counsel for the defence said that she wanted to prove the point positively that there was nothing in the appellant’s handwriting. That did not seem to the judge, nor does it seems to us, to take the matter any further. The application for the adjournment then turned to the issue of the sealed envelope – not so much in the context that the palmprint needed to be examined, but simply because if the envelope may have been opened that would help explain how the video had been touched by the appellant.
¬† In his interview he had advanced a number of possible explanations, including that the victim may have replaced and re-sealed the video in a new envelope. Be that as it may, the judge was told that the Crown’s expert had herself pulled back the flap of the envelope. With that information he questioned how another expert could tell whether the envelope had been opened not once, but more than once. In other words the envelope could never be restored to the condition in which it was when the Crown’s expert received it. That led to brief references, not pursued, to abuse of process. The judge was then told that the defence had instructed an expert, a Mr Brown, who needed two weeks from the previous Friday to conduct his examination. The envelope itself was at Lambeth. The judge wanted to understand why, if this was necessary at all, arrangements could not be made for him to look at the envelope immediately, and why the arrangements could not be made while the trial was underway, as it would be some time before the Crown’s expert gave evidence.
¬† It is not possible to summarise the lengthy debate that went on during this application for an adjournment. In the end the judge ruled: first, the issue to which this expert evidence was directed was not whether it was the appellant’s print on the video but how it came to be present; second, the Crown’s expert did not exclude the possibility that the envelope had been opened and re-sealed before she received it; third, the envelope had already been opened by her so that it was not in the same condition as it was when she had received it. He therefore did not think that the trial should be delayed any further. The application was refused. The judge suggested, however, that if they wished, the defence could get their expert to the laboratory and produce the evidence at an appropriate time in the trial. In short, therefore, he left that point open.
¬† We now come to 9 May, when the co-accused pleaded guilty. As already indicated, this was a plea tendered at the very last minute. The Crown said that they would wish to call him as a witness, if the co‚ÄĎaccused were willing, as he was. An appropriate notice of further evidence was served. The judge decided that the trial should be adjourned until 14 May, to start on that day, but without the attendance of any witnesses. Counsel renewed her application for a longer adjournment for the expert evidence from Mr Brown to be produced. The judge again refused the application for an adjournment, as it was put to him “for at least a few weeks or two weeks.”
¬† By 14 May the statement of the co-accused had been served as further evidence, together with an appropriate notice from the shop manager where the camera had been bought. Counsel complained of the late service of this material and of the difficulties it caused for her and her client, who, she said, could not be expected to provide an alibi for an incident which had taken place so long ago. The judge ruled that the evidence was admissible. The judge also returned to the issue of the expert evidence, Mr Brown, saying that he had understood that Mr Brown would be reporting at any moment. But counsel simply said that the report was not available “as yet”. Nothing was said to suggest any particular difficulty which had been encountered by or with Mr Brown. The trial then proceeded. We were told that Mr Brown’s attention was focused on the bottom flap of the envelope – that is the flap which DC Thomas had said all along that he had opened. Quite how far this investigation could take anyone, if anywhere at all, remains unclear to us. It was, in our view, quite irrelevant to any explanation for the presence of the appellant’s print whether the envelope had been opened at the top or the bottom flap. In the result the evidence of the Crown’s expert was read to the jury. She was not cross-examined.
¬† A number of other points were taken about the management of the case by the judge. One particular aspect of concern arose from the fact that the judge made clear that he expected the case to proceed expeditiously, and that it should conclude by not later than 25 May. In fact the jury retired on 23 May and returned their verdict on 24 May. Generally, however, it was submitted to us by counsel that the impression was left that convenience and speed were treated as having higher importance than the fairness of the trial. She told us that the appellant and his family were concerned and unsettled by what they felt was a sense of rush. That said, our attention has not been drawn to any material which the defence wanted to draw to the court’s attention but could not because of the pressure of time, nor to any features of the evidence where proper examination and deployment was unreasonably obstructed or circumscribed.
¬† The judge gave a number of further rulings, which we will deal with generally, relating to the use of screens to hide the victim not from the jury nor, as we understand it, from counsel, nor indeed in the end, as we understand it, from the appellant. There was also a point raised in argument about the state of mind of the appellant during the case which led counsel to see the judge in chambers to express her concerns about it. Another point related to the judge’s decision that the appellant did not require an interpreter.
¬† As to screens, in the end that point was not pursued. We understand the anxiety expressed by counsel about her client’s frame of mind. There was, however, no evidence produced to the judge to suggest that the appellant was unfit to stand his trial, or that there was any particular problem which meant that he could not properly attend to what was going on, or give evidence, if he was choosing to do so, in a sensible way, uninhibited by strains and tensions any way worse than those which face every defendant giving evidence at his own trial. As to the absence of an interpreter, one was apparently available, but was not in the end used. We have read the transcript of the evidence given by the appellant. We cannot discern from his answers that he lacked comprehension of English or was unfamiliar with its use. No application was made to us for an interpreter to be used during the course of the appeal.
¬† We can now turn to the grounds of appeal arising from the judge’s management of the case. The trial judge has always been responsible for managing the trial. That is one of his most important functions. To perform it he has to be alert to the needs of everyone involved in the case. That obviously includes, but it is not limited to, the interests of the defendant. It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting. Finally, the judge should not overlook the community’s interest that justice should be done without unnecessary delay. A fair balance has to be struck between all these interests.
¬† Virtually any adjournment produces inconvenience for someone. What used to be described as an adjournment culture, if it ever existed, is a thing of the past. Adjournments have to be justified. If at all possible, they must be avoided. Proper case preparation is required from both sides. When asked to consider an adjournment, the judge must closely scrutinise the application, and, unless satisfied that it is indeed necessary and justified, should refuse it. The decision whether to adjourn or not is preeminently a decision for the trial judge. Sitting in this court we should not, indeed we must not, interfere with it unless it can be demonstrated that the decision to refuse an adjournment was wholly unreasonable and caused real as opposed to fanciful prejudice to the defendant, undermining the safety of the conviction. The contention that an adjournment should have been granted in this case is unsustainable. Where the basis of the application is, as it was here, that the defence needed time to make further speculative investigations which might reveal evidence of possible but unspecified benefit to the defence, we should not begin to consider interfering with the judge’s decision. We should add that, having examined all the material before the trial judge, we simply cannot imagine how the proper exercise of his discretion could have led him to any conclusion other than the one it did.
¬† We must also consider whether the case was somehow rushed, a submission which gives this court the opportunity to highlight a significant recent change, perhaps less heralded than it might have been, that nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence.
¬† In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary evenhandedness and flexibility as the interests of the justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does. We find that nothing in the criticisms of the way in which the judge dealt with the timetable, and nothing in the remaining complaints about his management of the case which would justify us interfering with the decisions made while exercising his discretion as the trial judge.
¬† We can now consider the criticisms made of the judge’s rulings and the single criticism of the summing-up. Two rulings are criticised: the first relating to the finding of ¬£12,500 in cash hidden under the wardrobe; the second relating to the evidence of the shop manager where the camera was bought.
¬† The relevance of the finding of the money was that it tended to confirm the co-accused’s evidence that he had provided the appellant with it. It also linked the appellant with the original source from which the co‚ÄĎaccused said it had come, that is the victim’s bank account. Sums of money like these are not normally shared, even between good friends. And this evidence served to demonstrate, if the jury accepted it, the existence of a very close financial relationship between the two men, or at any rate a relationship in which money was exchanged and indeed that the money that was exchanged had come from the victim. It was therefore relevant to the issue of whether there was a joint enterprise and to defeat any suggestion that such dealings between them would never have been in contemplation.
¬† As to the evidence from the camera shop, we shall not repeat the facts. This evidence tended to confirm that when the camera used for the purpose of making the blackmailing video was bought two, not one, men were present. Again, therefore, this evidence was consistent with the important fact that two men rather than the co-accused alone were involved. Given that the co-accused admitted that he was one of the two men and alleged that the second man was the appellant, it was relevant that the shop manager’s description fitted, without in any way coming close to being an identification, the appellant. It was not used for the purpose of identifying the appellant. The identification was made by the co-accused. It was therefore relevant to the Crown’s case that this was a joint enterprise involving two men.
¬† We acknowledge the particular problems caused by late service of this evidence. They were problems which could not have been anticipated. It did not, however, in the end, as we see it, introduce any undue difficulty for the appellant or his counsel, and the jury would have been well able to understand the evidential difficulties faced by the appellant if he were seeking to explain that rather than being with the co-accused at the time when the camera was bought, he was not elsewhere. In those circumstances, as the evidence was admissible, the judge was entitled to allow it to be put before the jury.
¬† The final issue relates to the single complaint based on the summing-up. The judge gave clear directions to the jury about the care with which they should approach the evidence of Kevin Muhammed. The complaint in essence is that he should have explained in greater detail the advantages which the co-accused might hope to gain by giving evidence for the Crown. The judge expressly warned the jury that the co-accused had or might have an interest of his own in giving evidence. He also pointed out to the jury that the co-accused was awaiting sentence, and that he would want to avoid the prosecution of anyone else who might have been involved with him and, in other words, seek to blame the appellant rather than the true participant. Those passages in the summing-up no doubt followed the submissions made to the jury by counsel for the appellant about the way in which the evidence of Kevin Muhammed should be treated. The judge did not say in terms that by giving evidence Muhammed would receive a discounted sentence. Counsel herself had addressed the jury on that basis. We recognise that some judges might have reinforced the point in the course of a summing-up, but in our judgment that was not a necessary ingredient here. The warning about the care with which the jury should approach this evidence was clear and unequivocal and sufficient.
¬† Those grounds of appeal therefore fail.
¬† We now come to the fresh evidence. At one time it was anticipated that three witnesses might be called before us on behalf of the appellant. In the result only Tazviana Bhebe was called. We heard his oral evidence de bene esse. This witness wrote a letter on 5 June 2001 to the solicitors acting for the appellant. It contained a narrative, sequential and orderly account of a conversation he had had with the co-accused in prison. The tone of the conversation is encapsulated early in the letter which begins:
Re: Statement G. CHAABAN.”
It sets out the name, date of birth and address of Mr Bhebe and explains that he is writing a statement because:
“today I spoke to Mr Kevin Muhammed in Wandsworth Prison (5/6/01) during our library attendance.
Mr Kevin Muhammed today said he had set up one George Chaaban in court by lying and perverting the course of justice. He mentioned he alone had concocted a plan to blackmail . . .”
The letter then goes on to describe what Muhammed said to the witness. It includes a reference to Mr Bhebe’s concern that an innocent man has been jailed and that a mockery has been made of the British Judicial System. What is more, he also recorded that he was told that Mr Muhammed was still in possession of the master tape and that he (Muhammed) had indicated that he would continue to blackmail and that his final words were “if need be he would chop the dumb bitch’s head off.” It was those last words that Mr Bhebe told us really triggered a huge anxiety about what he was told and caused him to send the letter.
¬† Before this conversation he had never had any communication with Muhammed and he was adamant and remained adamant throughout his evidence that he had never ever spoken to the appellant. Understandably the letter itself said nothing about how it had been drawn to the attention of the appellant’s solicitors. But certainly it arrived by post at their offices. It seems to be common ground that it was posted from prison. The envelope is no longer available; it was misplaced or thrown away and we emphasise in recording those facts that we do not imply any wrongdoing by the solicitors who received the letter. The original letter itself was produced first of all to the Crown Prosecution Service, then to the police to investigate it and finally here in court.
¬† The significance of the evidence relating to the posting of the letter and its arrival at the offices of the solicitors for the appellant, is this: How did Mr Bhebe manage to identify the appellant’s solicitors? We know on the undisputed facts that for part of 5 June itself Mr Bhebe’s cell was the cell immediately next door to a cell which was occupied for part of that day by the appellant. Mr Bhebe’s cell for part of the day was C2-106 and the appellant’s cell, after moving from the hospital wing, was into C2-107. We also know that Mr Bhebe was discharged from prison on the following day. As we have already recorded, he denied any contact with the appellant. Therefore, the fact that the two men had not only been incarcerated in the same prison but for a time at least had been allocated cells which were adjacent to each other was nothing more than a coincidence. It was also a coincidence that it was on this particular day that according to Mr Bhebe’s account the co-accused quite spontaneously started to tell him how he had in effect achieved a perversion of the course of justice and threatened the victim of blackmail for which he was personally responsible.
¬† The problem with these coincidences, assuming that that is what they were, is that they have to be examined in the light of the critical question which we have already identified: who told Mr Bhebe the correct address to send his complaint? He himself said he was extremely disturbed by what he had heard, not only because the co-accused claimed to have set up the appellant, but because the account given to Mr Bhebe, fully set out in the letter, triggered off a profoundly disturbing memory of an incident in which he, Mr Bhebe, had been involved.
¬† In his statement to the appellant’s solicitors, Mr Bhebe narrated the conversation he had had with Mr Muhammed at the library. The statement then reads:
“I remember speaking the next day to Mr Muhammed and managed to find out who Mr Chaaban’s solicitors were. I think I then sent the letter to his solicitors. I cannot remember exactly the circumstances, it was quite a long time ago.”
¬† In his evidence to us at first Mr Bhebe said very much the same, with some additional embellishment that having reflected on what he had heard overnight, the next day while on exercise he approached the co-accused, who he described as a very boastful gentlemen, with the express purpose, not of course disclosed to the co-accused, of eliciting the identity of the solicitors for the appellant. He commented that the appellant’s solicitors “must have been useless”. Encouraged by that comment, according to Mr Bhebe, the co-accused said that their name was “Hendry’s”. With that information Mr Bhebe then looked up the name of solicitors in an appropriate publication and discovered that the actual name of the firm was Dexter Henry & Co., Brixton, and so he addressed the letter to them and posted it.
¬† The difficulty about this account of a crucial issue is already apparent from the judgment. This witness was discharged from prison on 6 June, that is on the day when he was supposed to have had this revealing conversation with the co-accused. Faced with this fact, after some hesitation and perhaps a little bluster, Mr Bhebe’s account changed rather dramatically. He had been given the name “Hendry’s” during the conversation on 5 June. He had looked up the solicitor’s name and address, and addressed and then posted the envelope himself that very day. There had been no conversations with the co-accused in the exercise yard. He had never spoken to him there. All this happened on 5 June in the same conversation. It was a conversation that had taken place while the two men were on library activity when a number of other people were round and about and, indeed, more than one person interrupted the conversation.
¬† We note that Mr Bhebe had given another account of the posting of this letter to DC Thomas. On 20 May 2002 outside Camberwell Magistrates Court, DC Thomas was investigating the account given in the letter to the appellant’s solicitors. We heard the evidence of DC Thomas on this issue. We preferred his evidence to that of the witness Mr Bhebe. We do not think it necessary or appropriate to set the matter out in detail, but we accepted that DC Thomas was told by Mr Bhebe that he had written the letter and given it to someone else to post for him to the solicitor. In other words, he had not, as he asserted more than once to us, posted it himself.
¬† There were a number of other unsatisfactory features of Mr Bhebe’s evidence. We are not prepared to attach any great importance, indeed we attach none to the issue of whether he was able to describe Kevin Muhammed who came into court this morning so that we could look at him for ourselves. Descriptions of that kind are not always easy and we were not prepared to conclude from the description and our assessment of Mr Muhammed that any adverse inference should be drawn against Mr Bhebe’s credibility.
¬† There were however a number of other matters. His account of how he discovered that the name Hendry’s was in fact a description for Dexter Henry & Co, Brixton, seemed to us unconvincing. Next, we immediately acknowledge that Mr Bhebe is an intelligent, educated man. Nevertheless, given first the circumstances in which this conversation is supposed to have taken place, on library activity with others milling about; and secondly, the urgency with which the letter was apparently prepared and posted, there is a surprising formality and coherence about the letter itself. Next, the urgency itself is a little odd. Mr Bhebe was due to be released the next day. At that time he was a man of good character which cannot any longer be said of him. If he was given such alarming information it is surprising that he did not think to wait until the following day and perhaps at some at that rate go to the police or consult his own solicitor. We attach some weight to the question of going to the police. We quite understand that, if the only part of the letter had related to Muhammed’s account of a successful perversion of the course of justice, and Mr Bhebe himself had just come off crack cocaine and just been in court, he would have been in no mood to cooperate with the police. It is nevertheless significant that what he said triggered off his main anxiety about what he heard from Mr Muhammed was the threat that this woman’s head would be chopped off. If he took that seriously, as he was adamant that he did, then it is surprising that he never once chose to let the police know.
¬† Be that as it may, we have to form an overall view of the credibility of this witness. We can, having summarised some of the features of his evidence at, I am afraid, some length, summarise our conclusion briefly. The evidence that we heard from Mr Bhebe was not credible and was not capable of belief. It does not serve to undermine the safety of the conviction. No evidence was called from the two further witnesses whose names were included in the papers identified in the application, Mr McLean and Mr Takla. We therefore can make no observations about them.
¬† In summary, therefore, on the basis of the fresh evidence, there is nothing to undermine the safety of the conviction. Taking the grounds of appeal relating to the judicial conduct of the trial, his rulings during the trial, and his summing-up at the end of the evidence, no ground of appeal has been sustained. There is nothing therefore to lead to the conclusion that the conviction is unsafe. The appeal against conviction is therefore dismissed.
¬† We must now turn to sentence. This is a man of good character, well spoken of by a number of witnesses. We have had a good deal of information provided about the personal circumstances of his family and in particular the impact on his children of his present incarceration. We have of course given extremely anxious care to the medical evidence. We have therefore examined it in the context of the crime of which he is convicted.
¬† We think it possible to underestimate how very serious this case was. The blackmail plan was carefully thought through. The victim was targeted for two reasons: first, she was particularly vulnerable, and secondly, the amount which it was hoped might be extracted from her would be very great. So the stakes were very high and the impact on the victim must have been very great indeed. The position of the appellant is made worse by the fact that he was a man she trusted. We were addressed on the basis that it was the co-accused who prepared the film, plainly was responsible for the arrangements in relation to the hotel, and that he had sexual intercourse with this woman knowing perfectly well that he intended to use the very fact of their relationship to sustain the blackmail. But when the facts are more closely examined, the part played by the appellant too was integral to the plot. He was convicted of a joint enterprise. The case against him proceeded as a trial. He therefore lacked the mitigation of a guilty plea. It is true, and we acknowledge, that the co-defendant’s entitlement to a discount for his plea of guilty would have been at the lower end of the scale because he did not plead guilty until the very latest minute. On the other hand, his plea of guilty did at least spare the victim having to be asked questions or give evidence about the more intimate aspects of their sexual relationship, or indeed the very fact of it. But significantly in relation to the co-defendant, he gave evidence for the Crown. That is an additional feature entitling him to a further discount in sentence.
¬† We have examined this sentence in the light of the material available to us about the impact on the appellant’s children. We are of course concerned about them. But having reflected on this very serious case of blackmail, in our judgment the trial judge’s assessment of sentence and the distinction that he was prepared to draw between the co-defendant and the appellant were all ones for the proper exercise of his judgment. Our conclusion is that the sentence imposed on the appellant was neither manifestly excessive nor wrong in principle. Although we are acutely concerned about the state of his children, we cannot see any basis on which to interfere with the length of sentence.
¬† Accordingly, the appeal against sentence will also be dismissed.