KS, R. v

On 8 November 2005, in the Crown Court at Wolverhampton, before Mr Recorder Baker, the appellants were convicted of doing an act with intent to pervert the course of public justice. On 12 January 2006, they were each sentenced to a term of nine months' imprisonment. Against Sarjit and Sonia Sahota there were also findings of guilt in relation to using a vehicle without insurance and permitting driving otherwise than in accordance with a driving licence. All three appeal against their conviction by leave of the single judge.

The prosecution arises out of the aftermath of a tragic road accident. On 30 August 2004, a group of adults and children were in the High Street, Smethwick, in the course of making their way from a charity football match in Victoria Park to the Waterloo public house. They included Dexter Watts, a seven year old boy, his father and mother. Dexter stepped out suddenly to cross the road and was hit by a Vauxhall Vectra motor car. He died as a result of his injuries.

Within the car at the time of the accident were the three appellants. Sarjit and Sonia Sahota are husband and wife. Salochana Devi is the sister of Sarjit. For ease of reference we shall use the first names of each. When the police arrived Sonia was sitting in the driving seat. Salochana was in the passenger seat beside her. Sarjit was no longer in the car.

Each of the appellants stated that Sonia had been driving at the time of the accident. This conflicted with information given to the police by onlookers who said that Sarjit had been driving at the time of the accident. The prosecution case was and is that the onlookers were correct and that each of the three occupants of the car lied to the police. That was the basis of the charge on which each was convicted. The prosecution raised only one issue for the jury: Were they sure that Sarjit was driving at the time of the accident? Their unanimous verdict demonstrates that they were.

There has been no suggestion that the manner in which the car was being driven at the time of the accident was occasion for any fault or blame.

Evidence at the trial was given over a period of five days. A large number of eyewitnesses of the accident and its aftermath were called by the prosecution. These included people coming from the football match, occupants of another car, and a man looking out of his window. The three appellants also gave evidence.

It was common ground that Sarjit had got out of the offside of the car and, after an interval, run off ahead of the car until he encountered a police car. He said that this was to escape from some members of the crowd that had gathered who were threatening him. It was the evidence of each of the appellants that Sarjit had been a passenger in the rear of the car, that his wife was driving, that her sister was sitting in the front passenger seat, and that Sarjit had stepped out of the rear offside passenger door.

Of the prosecution witnesses, six stated that they had seen a male Asian driving the car at the time of the accident. Fourteen stated that they saw a male Asian get out of the driver's seat after the accident. Seven said that a woman had got out of the nearside of the car and walked round and got into the driver's seat. They were not consistent as to whether she walked round the front or the back of the car. Four witnesses said that she crossed from the front passenger seat to the driver's seat by moving across within the car. Of these, two said that they saw her moving across and the other two formed the impression that she had done so.

The prosecution tendered one witness whose evidence was not part of their case, a Mr Gill. He was in his shop and heard a commotion outside. There were a lot of people shouting around a car. He went outside and saw an Asian man trying to get into the driver's seat in which a woman was already sitting. The man then ran off.

Some of the prosecution witnesses spoke of Sonia having been accused by bystanders of swapping seats with the driver. This was confirmed by Salochana when she gave evidence. This had led her to say to one of them that her brother was not driving because he did not have a licence.

The three appellants gave evidence that was similar in effect. Sarjit had been at work on 30 August 2004 and had arranged for his wife to pick him up when he finished. She had been shopping with his sister. He climbed into the rear passenger seat behind his wife, who was driving, as the shopping bags were behind the front passenger seat occupied by his sister. They chatted while he examined a Michael Jackson DVD they had bought for him. He did not, therefore, witness the accident but only became aware of it on impact. As soon as the car stopped he got out of the rear passenger door on the driver's side and started to go back to where the child had fallen. He was greeted by angry shouts and racial abuse, and fled. Sarjit said that he was pursued by two men and ultimately flagged down a police car. Sonia said that she had been driving and never left the driver's seat. Her sister-in-law had got out of the car and come round to her side. Salochana confirmed that this was the case.

In the course of the accident Dexter's head impacted on the top offside corner of the windscreen, causing that area of the windscreen to fragment. Both Sarjit and Sonia's clothes and hair were examined for glass fragments. Microscopic fragments were found in the clothes and hair of Sonia, but not of Sarjit.

Adam Booker, a forensic scientist specialising in glass analysis, was called to give evidence for the defence as to the glass that was found and its implications. An attack on the manner in which the Recorder dealt with this evidence forms the most important ground of appeal. There were a number of other grounds of appeal raised. We were not impressed by any of them, but in any event each related to a matter so peripheral that neither individually nor cumulatively could they possibly have put in question the safety of the jury's verdict. In these circumstances we will turn at once to the expert evidence.

Mr Booker originally carried out investigations and prepared statements at the request of the West Midlands police. In his first statement dated 16 September 2004, he detailed the results of examinations of the clothing worn by Sonia and Sarjit at the time of the accident and of combings from their hair. A considerable number of tiny fragments of glass that matched the glass of the windscreen were found in Sonia's clothing and hair. None was found in Sarjit's clothing or hair. From this Mr Booker concluded that Sarjit was at a distance from the damaged windscreen and that there was good evidence that Sonia's clothing was positioned in the driver's seat at the time of the impact.

On 30 November 2004 Mr Booker made an additional statement in which he recorded that it was believed that Sarjit had been driving the car at the time of the impact. He commented that, given the circumstances of the incident, had Sarjit been driving the vehicle at the time of the incident then, regardless of the following events, he would have expected glass fragments to be found on at least Sarjit's shirt and most probably his other clothing as well. He added that the amount of glass which emanated from Sonia was entirely consistent with a person who was seated in the front of the vehicle at the time of the incident.

On 9 December 2004, Mr Booker produced a third statement for the police. This stated as follows:

The prosecution decided that they would not call Mr Booker to give evidence, but disclosed his statements to the defence. Those acting for Sarjit decided, at a late stage, to call Mr Booker to give evidence for the defence. His evidence can be summarised as follows:

This evidence was, however, qualified by answers to questions, some of which were put by the Recorder. The first relevant passage was when Mr Booker was being examined by Mr Evans on behalf of Salochana. It reads as follows:

The next relevant passage occurred while the witness was still being examined by Mr Evans. It reads:

When Mr Booker was being cross-examined by Mr Quirke for the prosecution, the following exchange occurred:

This passage of cross-examination risked misleading the jury, for neither Mr Quirke nor Mr Booker made it plain that the comparison to which "more consistent" referred was between remaining in the passenger seat and climbing from the passenger into the driving seat. We suspect that this was because Mr Quirke had not himself appreciated this fact -- a conclusion that we base on discussion with him in relation to his skeleton argument. The jury might easily have concluded that Mr Booker was saying that the act of climbing from the passenger seat to the driving seat was the most likely way in which Sonia would have acquired the glass which was found to have adhered to her clothing, whereas Mr Booker's evidence had consistently been that the most probable explanation for the glass in Sonia's clothing was that she had been the driver. Although Mr Evans read the whole of Mr Booker's December 9th report in re-examination, we are not confident that this would have dispelled any misconception that the jury might have formed.

Mr Quirke then sought to persuade Mr Booker to agree that Sarjit's act of running away might have shaken off all the glass that would have fallen on him had he been in the driving seat. Mr Booker would not agree to this. He said that he would still have expected to find some fragments of glass in his clothing.

Mr Evans' re-examination led Mr Booker to express the following conclusion:

In the absence of the jury Mr Evans then submitted to the Recorder that he (the Recorder) had put to the witness the proposition that there was an angled blow to the windscreen, whereas the accident investigation report, which had not been put in evidence or been seen by the Recorder, stated: "The attitude and the position of cleaning marks to the collision vehicle's bonnet do not suggest any great momentum on behalf of the pedestrian across the latitude of the Vectra". The Recorder suggested that Mr Evans should put this hypothesis to Mr Booker and that the prosecution would then probably not disagree with it. He added that he would make it plain in his summing-up that there had been no evidence of any kind as to the particular angle of inclination of the boy's impact with the windscreen. This would prevent them from approaching the case on a false premise.

Mr Evans then put some further questions to Mr Booker in the following exchange:

In his final submissions to the jury Mr Quirke suggested to them that the fact that the glass fell on Sonia and not on Sarjit could be explained by postulating that Dexter's body impacted on the windscreen at an oblique angle. This led to a protest from defence counsel in the absence of the jury. They submitted that the jury should be given, as an agreed fact, the passage in the accident investigation report to which we have referred. Mr Quirke objected to this on the ground that the report was not in evidence. The Recorder ruled that he would not force the prosecution to make an admission, but:

In summing up the significance of the fact that glass particles were found in the hair and clothing, the Recorder said:

At the end of the summing-up defence counsel made representations to the Recorder in relation to what they suggested were possible deficiencies in his summing-up. They invited the Recorder to direct the jury that there was no evidence to support the thesis that Dexter had impacted on the windscreen at an oblique angle and that they should not speculate about this. They also asked him to remind them that Mr Booker had said that he would expect particles of glass to remain attached to Sarjit's clothing after he had run away from the scene of the accident had he been the driver at the time that the windscreen was damaged. The Recorder declined to do so.

Counsel for the appellants complain that the Recorder did not make it plain, as he had said he would, that Mrs Chambers' evidence was the only evidence of the angle at which Dexter struck the windscreen, nor that Mr Booker's evidence was that, if this were the case, the majority of the glass fragments would have fallen around the driver's seat. They also complain that he ended the passage in his summing-up that dealt with Mr Booker's evidence by reminding the jury that he had said that Sarjit would have shed fragments in the chase, without adding that he had stated that he would not shed all the fragments.

It was Mr Booker who first stated that if something had hit the window at an extreme angle any glass that broke would pass into the car at the same angle. Had this statement been considered at leisure it would surely have been appreciated that this could not found a possibility that, on the facts of this case, the glass fragments flew at such an angle that they bypassed the driver (Sarjit on the prosecution case) and landed instead on the occupant of the front passenger seat (Sonia on the prosecution case). The only evidence, as the Recorder accepted, was that Dexter was thrown into the air by the wing of the car and struck the offside corner of the windscreen. Furthermore, the relevant force which broke the windscreen was the forward momentum of the car, not any sideways momentum of the boy.

Because the Recorder himself pursued with Mr Booker the effect of an oblique impact, and permitted Mr Quirke to pursue in his final speech the possibility that this is what occurred, there was a real risk, unless he gave a clear direction in his summing-up, that the jury might conclude that this was a legitimate way of reconciling Mr Booker's expert evidence with the evidence of the witnesses.

This is a perplexing case. A very large number of eyewitnesses speak of seeing Sarjit leave the car by the driver's door after the accident. The eyewitness evidence appears overwhelming. But for the expert evidence we think that the jury would have been likely to return a guilty verdict within the hour. But the expert evidence might be thought to cut conclusively in the other direction. If Sarjit was in the driver's seat and Sonia in the passenger seat, it is almost inconceivable that the damage to the offside corner of the windscreen would have showered Sonia with fragments while not depositing them on Sarjit.

The Recorder should have placed this dilemma fairly and squarely before the jury. In the event he reminded them of Mr Booker's evidence about oblique impact without making it plain that this could have no application on the facts of this case. Furthermore, he went on to remind the jury of Mr Booker's evidence of three different sources for the glass on Sonia's clothing if she had shuffled across to the driving seat, without pointing out that only a minority of witnesses said that this occurred or that this theory still left unexplained why no glass was found on Sarjit.

Had the fact that it is impossible to reconcile the expert evidence with the eyewitness evidence been paced fair and square before them, the jury might well have decided that the eyewitness evidence was so powerful that the expert evidence could not stand in its way. There were, however, significant inconsistencies in some of the eyewitness accounts and, at least in the case of witnesses who were some distance from the rear of the car when Sarjit got out of it, there was scope for mistaking the door from which he emerged.

In all the circumstances we have concluded that the conviction in this case is not safe and accordingly that this appeal should be allowed and the convictions quashed.

MR EVANS: My Lord, may I invite the court, under section 41(11) of the Criminal Justice Act 1988 to set aside the convictions for the summary only offences?

THE LORD CHIEF JUSTICE: That must follow, Mr Quirke?

MR QUIRKE: Yes, indeed.

THE LORD CHIEF JUSTICE: Yes, so be it.