Nazham & Anor, R v

On 7^th September 2000 in the Crown Court at Warwick (sitting at Birmingham) these two appellants pleaded guilty on re-arraignment to conspiracy to defraud. In November 2000 they were each sentenced to 3½ years imprisonment, and confiscation orders were made in the sum of £302,806.31 in the case of Hameed Nazham, and in the sum of £571,073.38 in the case of Murtaza Nazham. On 4^th June 2001 both appellants were released from prison. They had made complaints to the Police Complaints Authority, and they also complained to the Criminal Cases Review Commission. The Police Complaints Authority found no evidence of misconduct, and the Criminal Cases Review Commission was not at that stage prepared to act. On 14^th November 2001 the appellants served notice of appeal to this court, with grounds of appeal of their own composition. Leave to appeal was refused by the single judge, but on 1^st July 2003 the Full Court granted leave to appeal on one ground only, which related to a conversation which took place in the judge’s chambers on 5^th September 2000 before the change of plea. It is said that the conversation in chambers was irregular, and that when it was relayed to the appellants by their respective counsel it fettered their freedom of choice as to their plea.

We are therefore not concerned with the detail of the prosecution case. It can be explained in broad terms. Murtaza Nazham is now 40, and Hameed Nazham is 38 years of age. They lived at 14 Holbein Gardens, West Hunsbury, Northampton, and between 1992 and 1999 they were said to have defrauded financial institutions by using false names and giving false details to open accounts. To begin with an account would be properly conducted to improve credit rating, then the appellants would withdraw funds and not repay. They used 11 false names, and 24 addresses, and supplied bogus details of employment, identifying 5 companies as employers. The companies were said to operate from accommodation addresses, so the appellants could themselves respond to any enquiries that might be made. One of the companies was Rycon Technologies and money from that company was paid into the appellants’ bank accounts to make it appear that they received regular monthly salaries. That money was then repaid and recycled.

The appellants were arrested at 14 Holbein Gardens on 3^rd November 1999. It was expensively furnished, even though, as the prosecution contended, they had been unemployed for years. It contained computers which had on them material relating to the fraud. A key found at that address fitted 113 Windingbrook Lane, Collingtree, which was also expensively furnished and where there was a Mercedes motor car. When interviewed Murtaza Nazham made some limited admissions, but for present purposes nothing turns on that.

Over all the loss occasioned by the fraud was said to be of the order of £1½ million.

On 17^th February 2000 the case was committed to the Crown Court at Warwick for trial, and when the appellants were arraigned on 10^th March 2000 they pleaded not guilty. There were five further preliminary hearings between then and 5^th September 2000, on which date the case was listed for trial. Judge Coates was to be the trial judge, and there was at that time difficulty with the accommodation at Warwick, so the court was sitting at Birmingham.

In this appeal Mr Dein QC and Ms Nicola Howard appear for both appellants. They did not appear in the Crown Court, where the appellants had separate solicitors and separate counsel. Mr Michael Latham appeared for Hameed Nazham and Ms Elizabeth Norman appeared for Murtaza Nazham. It is common ground that following a discussion with the judge in chambers on 5^th September 2000, in the presence of a shorthand writer, both the defence counsel reported back to their respective clients, who then changed their pleas. Mr Dein submits that they did so because of the pressure put upon them, which deprived them of their freedom of choice. If that is right then it is clear from the authorities that we must treat the pleas of guilty as nullities, and decide whether or not to send the matter back for trial.

But Mr Keeling for the Crown, who did not appear below, submits that before we reach that conclusion we must consider carefully the available evidence as to what transpired in chambers, and what the appellants were told about what had transpired, so as to enable us to reach a safe conclusion as to whether in this case there was an irregularity, and if so whether that irregularity did in fact deprive one or both of these appellants of his freedom of choice.

Mr Dein does not agree with that step by step approach. He submits that it is clear from the authorities that once we decide that what happened in chambers was irregular and it can be shown that there has been a subsequent change of plea we should infer that freedom of choice has been impaired. In our judgment the authorities do not go that far, and it would be surprising if they were to do so. Suppose for example, that a judge were to send for counsel and give a wholly improper indication as to sentence. Counsel would then go to tell his client what had been said, but before he says anything the client informs him that he has now made up his mind firmly to plead guilty. It could not possibly be said that the change of heart was caused by the impropriety, so that the plea of guilty should be treated as a nullity. In many cases if there has been impropriety impairment of freedom of choice can be inferred, especially if there is no evidence to the contrary, but that will not be the situation in every case.

The importance of deciding as an issue of fact whether the appellant did retain his freedom of choice is illustrated by the decision of this court in Hall [1968] 52 Cr App R 528. In that case the appellant alleged that as a result of a conspiracy involving his own counsel, prosecuting counsel and the Recorder of London he had been intimidated into offering a plea of guilty. The court heard evidence from the counsel who had been involved, and the solicitor for the defence, and at 534 Lord Parker CJ said –

“What the court is looking to see is whether a prisoner in these circumstances has a free choice; the election must be his, the responsibility his, to plead guilty or not guilty.”

The evidence of the lawyers was accepted, and the appeal was dismissed.

In Turner [1970] 54 Cr App R 352 the appellant was standing trial for theft of a car when he changed his plea to guilty, and was sentenced. He then contended that he did not have an opportunity of exercising a free choice when retracting his plea so, as in Hall, the court had to look into the matter and hear evidence to see whether he had a free choice. In fact the appellant’s counsel and solicitor were called to give evidence, and also, it would seem, the tempory clerk of the court. It emerged that before attacking the evidence of police officers in a way which would be almost certain to lead to the disclosure to the jury of the appellant’s previous convictions, the appellant’s counsel advised the appellant in conference to consider carefully whether to change his plea, in the hope that if he did so he would be given a non-custodial sentence. At one point during the conference counsel left the room, saying that he wanted to discuss the matter with the judge. When he returned he continued to offer the same advice. At that time it may well have been considered improper for counsel to pass on anything said by a judge in chambers unless expressly authorised to do so. In any event, although the Court of Appeal was quite satisfied that counsel was forcefully giving his own views, the impression formed by his instructing solicitor, and probably by the defendant, was that the views imparted were the judge’s views. Nothing was said to indicate otherwise, and that was why the appeal was allowed. The plea of guilty was treated as a nullity, and a new trial was ordered. The Lord Chief Justice took the opportunity to set out some basic rules, including -

“The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential …. The only exception to this rule is that it should be permissible for a judge to say, if it be the case, that whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form, e.g. a probation order or a fine, or a custodial sentence.

Finally, where any such discussion on sentence has taken place between judge and counsel, counsel for the defence should disclose this to the accused and inform him of what took place.”

It is noteworthy that in that passage Lord Parker indicates that a judicial indication “could”, not necessarily will, be taken to be undue pressure on the accused. There is room for argument about whether, now that we have guide lines in relation to sentencing for many offences, and a statutory requirement to reduce sentence in almost every case where there has been a guilty plea (see section 152(1) of the Powers of Criminal Courts (Sentencing) Act 2000 or section 144 of the Criminal Justice Act 2003 when in force) there is any compelling reason why a judge should not, if he chooses, in open court, indicate sentencing parameters, especially where the indication given relates only to the length of a custodial sentence ( i.e. the amount of credit to be given for a plea of guilty at a particular stage in the proceedings) but that is not something we are called upon to decide.

In later cases the guidance given in Turner has been repeatedly underlined in this court. It has also been set out in paragraph 45.4 of the Practice Direction (Criminal Proceedings: Consolidation) [2000] 1 WLR 2870. In Brook [1970] CLR 600 the judge told counsel that if the defendant was convicted he was minded to send him to prison, but if he pleaded guilty he would not do so. Counsel passed that information to the appellant who said that was why he pleaded guilty. The prosecution conceded that he did not have a free choice of plea.

In Inns [1974] 60 Cr App R 231 there was difference of recollection between counsel and the trial judge as to the amount of pressure exerted by the judge. This court found it unnecessary to resolve that dispute, because defence counsel’s account of what he reported back to his 17 year old client was undisputed, and the court found that when counsel went back to his client, after a second visit to the judge, and told the client what was likely to happen if he persisted in a plea of not guilty and was found guilty the defendant “crumpled and took the view that contesting the case was not worth the risk.” In other words this court felt able to draw an inference as to the effect of the reported judicial indication upon the appellant’s freedom of choice. It may be noted that in this case too the indication was of a non-custodial sentence in the event of a plea but a custodial sentence in the event of conviction after trial.

Llewellyn [1978] 67 Cr App R 149 is a decision on which Mr Dein placed some reliance. A number of defendants were charged with conspiracy to steal and the judge invited all counsel into his room before arraignment. There was a difference of recollection as to what was then said, but this court did not consider it necessary to hear oral evidence because, having looked at the opinions and statements of the lawyers who were involved, and the judge’s report, the court was left “with the clear impression that something was said not only as to sentence but as to degrees of responsibility of the various accused if conviction followed, either on a plea of guilty or by verdict of the jury, and as to a possible discount …. on sentence in the event of pleas of guilty.” There was reason to think that four years was mentioned as likely to follow a plea of guilty by Llewellyn, but he did not plead guilty. He did however have a “burning sense of grievance” as a result of the report he received from his counsel of what had transpired in the judge’s room. This court was able to find that “some strong indication was conveyed to him as the likely result of a plea of guilty by him and that, rightly or wrongly, the judge had expressed his view to counsel, without hearing any of the evidence (subject may be to reservations as to anything which emerged later), that he thought that Mr Llewellyn was the ring leader.”

During the trial the judge made rulings adverse to the defendant, which were accepted in this court to have been correct, but which the appellant regarded as further evidence of prejudice. He dismissed his lawyers and the trial continued in a way which in this court could not be faulted. But it was held that he had not been given the appearance of justice, so the conviction was set aside, “not on the ground that it is unsafe but that it is unsatisfactory.”

Clearly, as it seems to us, the value of Llewellyn as an authority in relation to the present case is limited, because there was no change of plea, there was no question of the plea entered being held to be a nullity, and the decision to allow the appeal under section 2 of the Criminal Appeal Act 1968 in its original form was founded upon the particular circumstances of the case. But, as in other cases, the court did find it necessary to investigate, at least to some extent, not only what was said in the judge’s room, but also and more particularly, what was relayed to the appellant.

In Pitman [1991] 1 All E R 468, where the charge was causing death by reckless driving, the judge asked to see counsel during the course of the trial, apparently because he did not consider that the case advanced by the defendant amounted to a defence. He gave no direct indication as to sentence, but said that the appellant would receive substantial credit for a plea of guilty. After counsel had reported back to his client there was a change of plea. There was no dispute about what had been said by the judge or reported back to the client. When giving judgment in this court Lord Lane CJ cited what had been said by Mustill LJ in Harper-Taylor and Bakker [1988] 138 NLJ 80 at 80-81 as to the dangers of judicial conversations with counsel in chambers. Sometimes such conversations may be necessary, but they contravene the general principle of open justice. They can give rise to misunderstandings, not least when counsel is relaying back to his client what the judge has said. Pitman was in a very vulnerable state when he had to decide whether or not to change his plea, and this court concluded that the judge’s indications amounted to a material irregularity which indirectly placed improper pressure on the appellant so that he changed his plea, “in the fear that what the judge had said meant, first, that his chances were, to say the least, very slim, and that if he was convicted by the verdict of the jury he would almost certainly go to prison”. That rendered the conviction unsafe and unsatisfactory, even though it was based on the appellant’s own change of plea.

The next authority to which we need refer, and again it is an authority upon which Mr Dein places reliance, is Attorney General’s Reference No 44 of 2000 (Robin Peverett) [2001] 1 Cr App R 416. The offender was a 67 year old headmaster who was alleged to have indecently assaulted pupils over an eight year period ending in 1977. Prosecuting and defending counsel saw the judge in chambers, and it was indicated by defence counsel that the offender might plead guilty to certain counts on a particular factual basis if he could be assured that he would not be facing an immediate custodial sentence. Prosecuting counsel who was anxious to spare the complainants the ordeal of giving evidence, supported that course, and indicated that if such pleas were tendered they would be acceptable. The judge indicated his agreement, pleas of guilty were tendered, and a suspended sentence was imposed. In this court the Attorney-General was refused leave to refer the sentence to the court as unduly lenient because of the stance taken by prosecuting counsel (which resulted in the issue of the Attorney-General’s Guidelines on the acceptance of pleas [2001] 1 Cr App R 28). Rose LJ began his judgment by making some general comments about the undesirability, save in wholly exceptional cases, of having recourse to the judge in his room to discuss pleas and sentence. But what may be of some significance for our purposes is that in that case no one seems to have doubted that the irregular agreement reached in the judge’s room was directly causative of the changes of plea, yet no one seems even to have suggested that the resultant pleas should be regarded as a nullity. That would seem to have been the correct outcome if Mr Dein’s submissions are correct. In our judgment the pleas were rightly allowed to stand because there was nothing to suggest that they were the result of undue pressure being brought to bear upon the accused.

That can be contrasted with the position in Pitts [2001] EWCA Crim 846, where the charge was dangerous driving, and the judge’s interventions during the trial were such as to give the appellant and the jury the impression that the judge had already decided that the appellant was guilty before he had concluded his evidence. In open court, but in the absence of the jury, the judge had also indicated that if the plea were changed to guilty it would be treated as a plea entered at the Plea and Directions Hearing, whereas if the trial continued there would probably be a custodial sentence. That was held to have put unfair pressure upon the appellant, so his resultant plea of guilty was found to be a nullity.

We note in passing that in 1993 the Royal Commission on Criminal Justice suggested in chapter 7 paragraphs 49 to 55 a change of procedure to permit some sentence canvassing to take place. That has not been implemented. In 1995 the Criminal Appeal Act changed the wording of section 2(1) of the Criminal Appeal Act 1968, so that we can only allow an appeal against conviction if we think that the conviction is unsafe, and a conviction based upon an appellant’s own plea of guilty will normally only be regarded as unsafe if the plea is undermined because it appears that it was equivocal, or the appellant did not understand the nature of the charge or did not intend to admit that he was guilty of the offence alleged. That is why, as it seems to us, in a case such as this there is a burden upon the appellant to show not only that there was an irregularity in the judge’s room, but also that the irregularity brought about his subsequent change of plea in such a way as to render the plea a nullity because it can be attributed to improper pressure. We turn therefore to consider the evidence as to what happened in the judge’s room and thereafter, in order to decide whether there was in the present case an irregularity, and if so whether that gave rise to improper pressure which was causative of the subsequent changes of plea.

As to what happened in the Judge’s room there is a contemporaneous record. Clearly the initial purpose was to enable the judge to find out what could be done on that Tuesday when the judge still had to finish another trial. Ms Norman had been served with additional material which she wanted time to consider. The judge indicated that he might also have to sit at Lincoln on the following Friday, so there was a danger of further disruption, and it was in that context that the judge said “this has got plea written all over it and bags of credit”. He then said that he did not know what it was worth and had formed no view, but even though the case was listed for trial a plea would still attract credit. He was asked by Ms Norman if he would give any kind of indication, and said he was not prepared to talk figures because that would be unhelpful and he had not had the papers back (although he had previously had dealings with the case). He then said that a plea would make for a shorter term of imprisonment which, it is clear from what he said immediately thereafter, meant, and was understood to mean, a term of less than 4 years. There was then a discussion about swearing in the jury, and the judge observed that the appellants were professionals, observed by police squads targeting this sort of fraud. He continued –

“At the end of the day they know whether they are guilty or not you know and they have got an eye for a deal, I would have thought.”

Counsel were then told that because of the preceding trial the hearing of their case would not begin until about midday on the following day.

In our judgment it is clear beyond argument that what happened in the judge’s room was irregular. The judge did not behave as advised by this court in Turner and in paragraph 45.4 of the Practice Direction. He was drawn into giving an indication as to the sentence he had in mind if the appellants were to plead guilty, and that was the sentence which in due course he did impose.

As to the effect of the irregularity upon Hameed Nazham we heard evidence from that appellant and the barrister who represented him at his trial, Mr Latham.

Hameed Nazham made a statement of truth on the 13^th June 2003 which he adopted as his evidence in chief. In that statement he said that between his arrest in November 1999 and his appearance at court on 5^th September 2000 he and his cousin were remanded in custody together, but they were separately represented, and he probably saw his solicitor for “five or six marathon sessions”. He saw his solicitors and counsel on at least four separate occasions, and he maintained his innocence throughout. None of that is contentious.

On 5^th September 2000 Hameed Nazham says that he and his cousin were taken to court early and were put in a holding cell together. No lawyer visited them until after Mr Latham had been to see the judge. Mr Latham and Mr Panton then collected him from the cell to have a conference. Mr Latham said that he had just returned form the judge’s chambers, the judge having summoned all counsel. The judge had asked about his plea, and Mr Latham had indicated that he was still pleading not guilty. The judge had then said that he had seen all the paperwork, and evidence against Hameed Nazham and even at this late stage he was willing to accept a change in plea and give substantial discount on sentence. Obviously if Mr Latham reported the judge as having said that he had seen all the paper work and evidence, that was wholly at variance with what had in fact been said by the judge a few minutes earlier. Hameed Nazham in his statement of truth went on to say that Mr Latham said that the judge had said that if he would plead to the indictment as it stood he would be looking at a sentence of about 3½ years, but if he were to be tried and convicted he would be looking at a sentence of five years plus. That, Hameed Nazham said, scared the living daylights out of him. There was a discussion as to when, in relation to each sentence, he would get parole, and Mr Latham told him that it was for him to decide whether to continue to plead not guilty or to change his plea. Hameed Nazham said in his statement that he felt he had no choice. The judge appeared to be suggesting he had little chance of acquittal. He went back to his cell and discussed the situation with his co-accused, and they both concluded that they had really no choice. It would not have had anything like the same effect to be told by his barrister that the evidence was overwhelming and that he would get substantial credit for a guilty plea, because the pressure was coming from the judge who would be conducting the trial. So when he and his co-accused were brought into the dock after the mid day adjournment he told Mr Latham that he had thought about what he had said, that it was a scary situation, and that he wanted to plead guilty before the jury was sworn. Mr Latham was anxious that he should not make a hasty decision, and got confirmation from the judge that there would be no loss of credit if any possible re-arraignment were to be deferred to the next day. Mr Latham asked Hameed Nazham in the dock if he was sure he knew what he was doing, and Hameed Nazham states that he told Mr Latham “we didn’t feel we had any choice”. He had no recollection of any subsequent conference, but did recollect signing for Mr Latham a blank sheet of paper which Mr Latham said that he would complete as a change of plea document. In fact he signed a page in Mr Latham’s notebook which came to light just before we began to hear the appeal. After release from prison in June 2001 he and his co-accused tried to mount an appeal based on fresh evidence, and then in September or October 2001 the co-accused came across the decision in Pitman to which we have already referred.

Under cross-examination Hameed Nazham said that prior to 5^th September 2000 he had received no advice as to sentence. He did not think he would escape prison if he pleaded guilty, but had no idea as to the length of sentence he might receive. He was not told that he would get credit for a plea of guilty but he knew that. He changed his plea for two reasons – first because Mr Latham said that the judge had seen all the evidence against him, and even at a late stage was still prepared to accept a change of plea, and, secondly, because the indication of a sentence of in excess of 5 years put him under intolerable pressure. He did not recall complaining to Mr Latham of any unfairness, but he recalled Mr Latham talking with Mr Panton about refreshers. Mr Latham was affable throughout, and merely apparently relaying what the judge had said. He did not say that what the judge had done was inappropriate.

After his appearance at court on 5^th September 2000 he went back to prison with his co-accused, who was also pretty scared, and they discussed the position over night. He did not appreciate that one consequence of a plea of guilty would be confiscation proceedings. He never saw any document setting out his instructions (that is to say a proof of evidence), and was never advised as to the possibility of an appeal.

Mr Latham gave us rather a different perspective. He recalled going to see the judge in chambers on 5^th September 2000. His unaided recollection was that it was the co-defendant who wanted an approach made to the judge. That did not surprise Mr Latham, who believed that Murtaza Nazham was considering his position because his impression was that Murtaza had no realistic defence. Any defence he had would be a cut throat defence and Hameed Nazham would suffer if they were tried together over six to eight weeks. Having read the transcript Mr Latham accepted that the visit to the judge may have been at the judge’s instigation, but his impression was that Hameed Nazham, knew what was happening and approved, because he recognised it would help his case if Murtaza Nazham pleaded guilty. Mr Latham believed that he saw Hameed Nazham on 5^th September before he went to see the judge. In chambers the judge made it clear that he had not read the papers or formed a view, and much of the discussion proceeded on the basis that there would be a trial. The judge did not indicate that anyone’s position was hopeless, but he would clearly have been pleased if the matter were to go short. Mr Latham, who is an experienced practitioner, did not feel that any improper pressure was being applied. He regarded the judge’s indication as to a possible sentence of under four years if there was to be a plea as very welcome. He could not recall any previous discussion with his client as to possible sentence, but said that such a discussion was almost inevitable, and he would have pointed out that credit would be given for a plea of guilty. Having regard to the amount of money involved he expected a sentence of over 5 years imprisonment if his client were to be convicted after a trial, and when he passed on to his client what the judge had said as to the sentence he would impose if there were to be a plea of guilty he got the impression that Hameed Nazham was weighing his options. Hameed Nazham is, said Mr Latham, an intelligent man, who was very much on top of his case. He never showed any concern that the judge might be against him, and Mr Latham was certain that he felt under no pressure to change his plea. Mr Latham had no recollection of Hameed Nazham saying he had no choice, but after the mid day adjournment Hameed Nazham was very keen indeed to plead guilty. Mr Latham got the judge’s assurance in relation to re-arraignment and then later that afternoon discussed with Hameed Nazham the evidence and his options, making it clear that the final decision was his. He understood that. The evidence against him was very strong. For example the prosecution could prove that his writing was on damaging documents, he was identified as the purchaser of valuable items when his only source of income was state benefits, and he was in no position to call expert evidence to challenge the experts who would be called by the prosecution. On the following day, 6^th September 2002, in the presence of Mr Panton’s representative, Hameed Nazham signed the written acknowledgement in Mr Latham’s notebook of his decision to change his plea. There was no question of him signing a blank sheet of paper. Mr Latham said he was completely satisfied that Hameed Nazham pleaded guilty genuinely and properly and without any inducement.

When cross-examined Mr Latham made it clear that he did not seek to relay to his client everything said by the judge. He told him that on a plea the sentence could be up to 3 years 11 months as opposed to five or six years if the case were to be contested. That was his assessment based on the judge’s indication, as noted in Mr Panton’s attendance note. He did not tell Hameed Nazham that the judge had said the case had “plea written all over it”, or indeed say anything to indicate that the judge considered the prosecution case to be overwhelming. He did not consider it relevant to tell his client the judge’s feelings about the strength of the evidence.

After the mid day adjournment the attitude of Hameed Nazham dramatically changed, and when he saw him again in conference that afternoon he dealt with matters relevant to mitigation. He also noted in his note book “substantial confiscation” so it would seem clear that the question of a confiscation order was discussed. When Hameed Nazham eventually pleaded guilty Mr Latham was satisfied that it was because he wanted to and he had no recollection of anything ever have been said about refreshers.

We have no doubt that where the evidence of Mr Latham differed from the evidence of Hameed Nazham it was the evidence of Mr Latham which we should accept. For example, we do not accept that Mr Latham never discussed with his client the question of sentence, or the credit which might be obtained by pleading guilty, until after he saw the judge on 5^th September 2000. We accept that on that day Mr Latham saw Hameed Nazham before going to see the judge, and when he returned from seeing the judge he said nothing to indicate the judge’s view of the merits of the case. Mr Latham himself did not feel that he was being pressurised in any way, and that, as it seems to us, is precisely what he would have imparted to his client.

We accept Mr Latham’s evaluation of Hameed Nazham as an intelligent man, on top of his case, who carefully weighed his options, and then chose to plead guilty of his own free will, encouraged no doubt by the prospect of being sentenced to less than four years imprisonment. When he eventually changed his plea on 6^th September 2000 he was well aware that there would be confiscation proceedings, because that was a topic which had been covered by Mr Latham in conference during the previous afternoon, and he also knew what he had signed in Mr Latham’s notebook. It was not a blank sheet of paper, and his evidence to that effect is, in our judgment, almost certainly a deliberate lie.

Murtaza Nazham also made a statement of truth which he signed on 13^th June 2003. It is in very similar terms to the statement signed by Hameed Nazham. He denies that he failed to co-operate with his lawyers in the preparation of his case, but accepts that he told them to concentrate on getting from the police crucial tape evidence because “that was all that was necessary to conclusively prove my side of the story”. He contends, and it is not disputed, that prior to 5^th September 2000 he had not given any indication of a willingness to plead guilty. He says that on that day he was not visited by his counsel, Ms Norman, until after she had been to see the judge. She said that the judge had asked about intended plea, and she had said that he was going to go to trial. She then said that the judge had said that Warwick was not his usual court, and that consequently he was in no mood to endure a long trial at this unfamiliar court. That is a surprising recollection, because the court was not sitting at Warwick, and it is unrelated to anything in the transcript of what occurred in the judge’s chambers. According to Murtaza Nazham, Ms Norman also said that the judge had said that there was overwhelming evidence against Murtaza Nazham and made a remark in passing about the voluminous paper work and not being in the mood to read the papers, so that even at this late stage he was willing to accept a change of plea and give substantial discount on sentence. Here again it is impossible to relate what Ms Norman is alleged to have said about the overwhelming nature of the evidence or a volume of paper to anything in the record of what was said by the judge.

Ms Norman, it is said, went on to say that the judge had said that if Murtaza Nazham were to plead guilty to the indictment as it stood he would be looking at a sentence of 3½ years, but if he were to be convicted at trial he would be looking at a sentence of more than 5 years. She also said the judge would sentence there and then and conclude the matter. It was for Murtaza Nazham to decide, and that he should consider his position. He then asked for time to discuss the matter with Hameed Nazham. He felt he had no choice in the matter of plea. If the judge who was to conduct the trial concluded that the evidence was overwhelming, the case was hopeless. He seemed to be indicating that there should be a change of plea, or the sentence would be more severe. After discussing the situation with Hameed they both concluded that they really had no choice. It would not have been the same if he had simply been advised by Ms Norman that the evidence was overwhelming, and that he could get his substantial credit for a plea of guilty. It would not have had the same effect.

So when Murtaza Nazham was produced in the dock after the mid day adjournment he too told his counsel that he wanted to change his plea.

In evidence in this court Murtaza Nazham said that prior to 5^th September 2000 he had received no advice as to sentence, either on the basis of a plea of guilty or if he were to be convicted. His counsel had provided a written advice on evidence, and a further written advice dated 23^rd August 2000, in which she specifically dealt with discount for plea and length of sentence. Murtaza Nazham said he might have received that advice, but anyway everyone in prison knows of the fact that a discount is available if you plead. He was confident of acquittal, but knew that even if he were to plead guilty he would be sent to prison. He told Ms Norman he was not happy, but did not say why, or suggest that any improper pressure was being applied. The prosecution case did include handwriting evidence, finger print evidence, photographic evidence, and evidence from computers, but he could tackle those things. In so far as expert evidence was required he thought counsel was getting all that done. He did not know that there was no expert evidence to be called by the defence. He had given full instructions as to his defence, and in so far as Ms Norman says that he was delighted when he was told he could be sentenced to less than four years “she is obviously lying”. It is not true that he was obstructive with his solicitors. They are lying because he complained about them to the Law Society. They represented both him and his co-accused in the confiscation proceedings, and it was the conduct of those proceedings which gave rise to a complaint which was found by the Office for the Supervision of Solicitors to be well-founded.

Ms Norman advised on evidence in writing on 15^th May 2000, after the service of the expert evidence relied upon by the prosecution, and three days after service of the Defence Statement. In her advice she sought detailed proofs “not least to enable the defendant to understand the complex nature of the case against him.” In her further advice of 23^rd August 2000 Ms Norman says-

“I am still effectively without instructions, other than those briefly provided to enable the Defence Statement to be drafted. Mr Nazham appears reluctant to direct his mind to the prosecution evidence in this case, which is particularly unfortunate because as he knows some one who has committed an offence and pleads guilty is normally entitled to a discount for so doing and that coupled with the time spent on remand, the likely length of sentence (especially since I imagine the prosecution would be prepared to negotiate about the details of the allegation) and the effects of tagging would be likely to mean that he would not have to spend a substantial further period in custody.”

She then set out “some areas of evidential difficulty”. That is plainly an understatement. It is clear from the advice that up to that time a powerful prosecution case had simply not been addressed, except by making a couple of tangential complaints. In evidence to us Ms Norman said that found it impossible to take instructions. Murtaza Nazham would not respond to questions. He had his own agenda. He refused to speak to inquiry agents sent by his solicitors to obtain a proof of evidence and she was reduced to tape recording in conference. She had some instructions from the start but they were limited – about the police showing photographs to witnesses, and stealing money, and having a video. Ms Norman had seen Murtaza Nazham several times in prison and at court. She had a proof of evidence dated 14^th April 2000, and saw him in what she described as the dungeons before she went to see Judge Coates in chambers on 5^th September 2000. Her recollection is that she was told that the judge wanted to see counsel and she got her client’s authorisation. He seemed keen that she should go because he wanted to know the possible sentence. She did not recollect the judge saying anything about the strength of the case, but that it would be long and difficult, so if there was a plea the sentence would still be under four years. She then told Murtaza Nazham that she thought that the prosecution evidence was overwhelming, and he was providing no explanation of it. She never said that the judge had said the defence had no chance. She regarded herself as bearing good news, that despite everything her client could still have a full discount for a plea of guilty and be sentenced to less than fours years. He seemed pleased, and smiled. He never suggested he was being pressurised and that the judge was against him. Thereafter she continued to see him because of his complaints against the police, and he told her he had only made one mistake, referring to a document with two signatures on it. He never dispensed with her services, or those of his solicitor. He never said that he no choice. She was satisfied that he pleaded guilty because he recognised his guilt, having waited to see the strength of the unanswerable prosecution case. He had a clear structured agenda, which involved trying to get the case thrown out, but not addressing the evidence.

In cross-examination Ms Norman was asked about the relationship between Murtaza Nazham and her instructing solicitor, Mr Schiller. She denied counsel’s suggestion that by 30^th August 2000 Murtaza Nazham was threatening to dispense with her services and those of her instructing solicitor. The problem, so far as she was concerned, was simply that Murtaza Nazham was not providing instructions. She had been given no ammunition with which to fight the case, except at the most superficial level, and her impression was that Murtaza Nazham was waiting to see the strength of the case against him before deciding whether to plead guilty. Ms Norman’s recollection was that on 5^th September 2000 she saw Murtaza Nazham on two occasions before she went to see the judge, the second occasion being to obtain his authority. After seeing the judge she did not say anything to Murtaza Nazham about the judge not being at his usual court, or reluctant to embark on a long trial. Indeed she did not say anything to Murtaza Nazham about the judge’s view of the case. Her impression was that Murtaza Nazham was a very competent fraudster, well able to assess the evidence against him. He pleaded guilty because he was faced with an overwhelming prosecution case, and he had no defence. She told him that the judge had said that if he pleaded guilty he would get full credit, and the sentence would be below four years. Before he changed his plea she discussed with him not only sentence, but also the confiscation proceedings which would follow.

We found Murtaza Nazham to be, if anything, an even more unreliable witness than Hameed Nazham, and in so far as his evidence was at odds with the evidence of Ms Norman it was her evidence which we preferred. We are satisfied that prior to 5^th September 2000 she repeatedly attempted to get from him the instructions she needed to contest the case, and she failed because he had no worthwhile instructions to give. She visited him before going to see the judge, and he was happy she should go because he hoped for information about his possible fate. When she reported back she did not say anything about the judge’s attitude to the strength of the case, but she did convey the judge’s indication as to the sentence which he would impose if Murtaza Nazham were to plead guilty, and Murtaza Nazham was relieved to receive that information. Relief is quite different from oppression, and we are completely satisfied that when Murtaza Nazham changed his plea he exercised, and willingly exercised, a free choice. It was only much later, after his release from prison, that his researches led him to his present ground of appeal, the main attraction of which may well be a desire to avoid the confiscation orders which the court has made.

In this case we are satisfied that it is necessary in the interests of justice for us to receive the evidence which we heard. Having received that evidence we conclude, for the reasons we have given, that -

(1)

the judge should not have said what he did in his room, but-

(2)

the indication which he gave as to the sentence he was minded to impose in the event of a plea of guilty (which was all that was conveyed to either of the appellants by their counsel) did not improperly inhibit their freedom of choice, or give rise to any injustice, apparent or real.

We reject the submission that it is not in the interests of justice for evidence to be called and received in a case such as this, because it may be necessary, as in this case, to discover the effect of an irregularity which has occurred. In some cases there may be difficulties with legal professional privilege, but if so they will have to be resolved on a case by case basis.

Nothing that we have said detracts in any way from the advice given by the Lord Chief Justice in Turner and in paragraph 45.4 of the Practice Direction. Indeed this appeal, with its need for evidence to be called in this court, illustrates the problems which can arise if judges take part in inappropriate negotiations in their private rooms, but proof of such an irregularity on the part of the trial judge is not necessarily sufficient for success on appeal, and for the reasons we have given these appeals fail, and are dismissed.