R v Fuad Awil

On 24 January 2020 in the Crown Court at Isleworth the appellant was convicted by a majority of ten to two of possessing a prohibited firearm contrary to s.5(1) of the Firearms Act 1968 (Count 1) and of possessing ammunition without a firearms certificate contrary to s.1(1)(b) of the Firearms Act 1968 (Count 2). On 9 September 2019 he had pleaded guilty to possessing a controlled drug of class B, contrary to s.5(2) of the Misuse of Drugs Act 1971 (Count 5). No evidence was offered against him on Counts 3 and 4 and not guilty verdicts were entered pursuant to s.17 of the Criminal Justice Act 1967. He now appeals against his convictions on the two major offences with the leave of the single judge.

The appeal involves a wholesale attack on the fairness of the trial process, although it is subdivided into discrete criticisms. Overwhelmingly the most important, in our judgment, is the submission that the summing-up was not fair, because the judge had entered into the arena in a manner that went beyond acceptable commenting on the evidence.

The applicant was alleged to have been in possession of a "man bag", which contained a revolver and ammunition. In essence, the prosecution relied upon the evidence of
PC Sohal who suggested that when driving his vehicle along Kensal Road at about 2.00 a.m. on 10 August 2019 he had seen the applicant remove a black strap from his shoulder whilst ducking behind a wall on the junction of Kensal Road and West Row, to which we shall refer as "the walled area". The walled area is akin to a small front garden covered by a number of bushes, well into the pavement area of the junction and stretches for more than 10 metres.

The appellant made off from the walled area when he noticed the police vehicle and, after a short chase, PC Sohal returned and was handed the man bag which contained the revolver by a civilian witness, Mr Johnson. Mr Johnson's signed statement, which was dated five months after the incident, was admitted as hearsay evidence by the judge on the basis that he was too fearful to attend court. In his statement Mr Johnson described seeing the appellant arrive in a taxi and then go into the walled area. After the police chase, Mr Johnson described picking up the man bag behind the walled area. He said he had not seen the man with the bag, but had picked it up exactly where the man had been standing.

In addition to Mr Johnson's statement, the jury were shown body-worn video footage of Mr Johnson from the night of the incident. Within that footage Mr Johnson gave his first account and described finding the bag in the walled area. The video evidence was important. In the first clip Mr Johnson said that he did not see the applicant or the appellant remove, touch or at any point be in possession of the man bag that was later found. At one point he said, "If I say I saw him throw it, then I am a liar." On two occasions he pointed further down the road, away from where it was agreed by all parties that the appellant had been ducking in the walled area, when he spoke about where he had found the bag; and at the outset he walked towards PC Sohal with the man bag in his hand from further down West Row than the walled area further beyond where it was alleged and agreed that the applicant had been ducking. The implication that the defence wished to draw from this evidence was that Mr Johnson could be shown in the clip to have found the bag some distance from where the applicant had arrived and been seen. These features of Mr Johnson's evidence in the footage were, therefore, important to the central issue in the case, which was whether or not the appellant ever had possession of the bag.

The prosecution also relied upon the fact that the applicant had disposed of a jacket with washing-up gloves inside its pockets while he was being chased by the police. The prosecution relied upon this evidence to explain the lack of the applicant's DNA on the man bag and to infer broader knowledge of the firearm. Importantly, however, none of the prosecution witnesses gave evidence that the applicant had in fact been wearing these gloves at any stage when they had seen him. PC Sohal recovered the coat that the appellant had been wearing and had jettisoned while running away from the police. As we have said, in the pockets were the two rubber gloves that were black on the outside and white on the inside. They were partially turned inside out. The appellant's DNA was found on the inside finger of one of the gloves. In addition, when he was arrested the appellant was found to have broken his mobile phone and scattered the parts. When arrested, the appellant had £15 worth of cannabis on him, which he had not jettisoned either when being chased or at any stage before his arrest. The prosecution further agreed that the DNA of a third party, who we need not name, was present on the man bag. That third party was under investigation for possession of other weapons in the local area also around the time of this incident.

Lastly, the prosecution relied upon the fact that the appellant had visited Ladbroke Gardens shortly before attendance at West Row, as shown by a text message or messages demonstrating that he had been picked up by a taxi at that location. The prosecution suggested that his being there was related to the firearm. The appellant said that he had visited Ladbroke Gardens to purchase some cannabis and that that was the reason why the cab had picked him up at that location.

The appellant's case was that he disputed possession, contact with or handling of the man bag with the firearm inside at any stage. He also disputed that he had any knowledge of the firearm in the man bag. His case at trial was relatively simple. He said that he had been informed by another man who he knew and who had asked him to collect the bag and convey it to his address. He was doing this as a favour to the man and was promised the cab fare for the journey. He was going to smoke cannabis with his friend in any case and did not think much of picking up a bag for him on the way. He purchased the cannabis on the way to see his friend to ensure that he had his own personal cannabis available to him. The applicant's case was that he did not think that the bag could contain a firearm and understood that it may or had probably contained cannabis, given that his friend either was or had previously been involved in the supply of cannabis.

It was the defence case that the appellant was unsuspecting and somewhat naive. He had previously enjoyed using cannabis, which motivated him to complete the favour for his friend. It was suggested with the benefit of hindsight that he was 19 years old and was exploited as a potential unsuspecting courier so that the "friend" could distance himself from what was clearly a prearranged pick up of the man bag with the gun inside it. In any event, the applicant arrived at West Road at about 2.00 a.m. pursuant to this agreement. However, according to his case, before he could find the bag, he noticed the police vehicle described and absconded for what he said were three reasons. First, he did not want to be found with a suspicious bag which might contain a large quantity of cannabis. Secondly, he had cannabis on his person, which he had recently purchased and, thirdly, he had recently secured employment and moved forward with his life and was thus afraid of confrontation and trouble with the police. The central point was that the appellant was adamant that he had not touched or found the bag by the time the police arrived and it was thus suggested that PC Sohal must have been mistaken, given the lack of proper lighting, the distance involved and other errors made by PC Sohal in his evidence which undermined his reliability and to which we now turn.

In the course of the cross-examination of PC Sohal, which we have read in full, counsel for the appellant established a number of points that would be important to the defence. First, when PC Sohal returned to the area and first saw Mr Johnson, Mr Johnson was at some distance from where PC Sohal had first seen the appellant. Second, it was recorded on the body-worn video that when PC Sohal asked Mr Johnson if he had seen the appellant drop the bag he said "no". Third, at a later point in the body-worn video, Mr Johnson had said to Mr Sohal, "If I say I saw him drop the bag, I would be a liar," but PC Sohal said he didn't remember him saying that and he had not included this information from Mr Johnson in his statement. We note in passing that the judge intervened at this point to ensure that he had taken a verbatim note of this exchange.

Fourth, PC Sohal's first statement was made within six hours of the incident. In it he said that on returning to the scene:

Fifth, PC Sohal's explanation was that he had got mixed up and confused rather than trying to fill in a gap in the evidence as suggested by counsel. Sixth, however, neither his first statement before reviewing the body-worn footage nor his second statement mentioned that Mr Johnson had said that he had not seen him drop the bag. Seventh, he had radioed to other officers that he had seen the appellant discard the bag, which was incorrect. Eighth, in his 10 August statement he said that he had been 1.5 metres away, when in fact he was significantly further away. The judge commented during the evidence that it was "obviously not 1.5 metres."

Ninth, in his 10 August statement he had said:

On any fair view, the cumulative effect of the cross-examination was to cast significant doubt on the accuracy of PC Sohal's evidence from time to time and, therefore, his credibility about the central question whether he had seen the appellant in contact with or possession of the bag or any part of it. The effect of the cross-examination on a fair reading was to demonstrate that (a) PC Sohal had incorrectly included information in his statements that was adverse to the appellant; and (b) had omitted obviously relevant information that was or might be favourable to the appellant. In a case where the central question was whether the appellant had ever had the bag in his possession, this was obviously of high relevance and importance.

In order to complete some of the background, there had been a chance meeting between officers and the appellant on South Row, which is a point relatively nearby, about half an hour before the main incident. During that chance meeting the appellant explained that he was staying locally with his aunt on Manchester Drive, which is a road connected to South Row. This address was confirmed by the appellant's father in evidence. This earlier interaction arose as the appellant had walked down to a local grocery store some five minutes away to purchase milk: that was his explanation of what was going on. There was some dispute about the distance from A to B, but the appellant said that this was on request by his aunt. He found that the store was closed so the appellant returned to his aunt's home. On his way back the appellant had the brief conversation with the officers on South Row. No issues arose about this meeting and the same account had been given in the appellant’s police interview.

In evidence the applicant explained that he did not name the individual who had sent him to pick up of the man bag or explain his visit to Ladbroke Gardens when interviewed because he was afraid of repercussions. He lived in the local area with family and he is young. He said that when he learned that a firearm was involved he was shocked and considered it best not to mention directly anyone who may have been involved. He was also afraid to identify a local drug dealer from whom he purchased the cannabis that was seized, so that was why he did not provide more detail about his visit to Ladbroke Gardens.

The appellant would maintain that his account is genuine, although he made a stupid error which it would be submitted is consistent with his age and level of maturity by attempting to do this favour for a friend. He would submit that he was honest in his evidence. In any case, it is now the appellant's submission that his account should have been properly left to the jury to consider, whatever the judge thought of it.

The appellant had only one previous conviction though that was for the supply of class A drugs when he was 16 years old. Otherwise, he was of previous good character. The facts of his previous conviction were said by the defence to be consistent with being exploited as a child by older local drug dealers. There was no evidence of continued or other supply of class A drugs or involvement in gangs following his release from custody. The appellant explained in evidence that he had in fact since secured employment and although he used cannabis he was trying to stop as it was not a positive habit. There was no evidence linking the appellant with the use of weapons, offences of violence or broader involvement in firearms.

In R v Lourides and Ablitt [2020] EWCA Crim 332 at paras. 39 to 45, a case which we understand may still be subject to reporting restrictions, a different constitution of this court outlined the relevant principles as follows:

To this summary we add a short citation from R v Reynolds [2019] EWCA Crim 2145:

We would respectfully go one step further than para. 69 of Reynolds. In our judgment an appearance of advocacy on behalf of the prosecution is never appropriate. No judge should appear to enter into the arena. They should be seen to remain the impartial arbiter throughout. That is the essence of being a judge.

A shift in emphasis has recently been provided by another constitution of this court in Haddon [2020] EWCA Crim 887, Another case which we understand is presently subject to reporting restrictions. Immediately before referring to para.15 of Marchant as describing the correct approach, the Vice-President said:

We respectfully agree with and endorse this shift of emphasis. Without derogating from the full effect of these authoritative statements, the guiding principle must always be balance and fairness. An objective marshalling and presentation of the evidence is a feature of every good summing-up. Furthermore, a balanced presentation of the cases being advanced by the prosecution and the defence may require the judge to point out matters which support or undermine the case of either or both of the parties. It is clear that there is no blanket ban upon trial judges expressing a view based upon an analysis of the evidence which may be adverse to either the prosecution or the defence. However, careful consideration should always be given before a judge decides to express a view rather than presenting matters that support or undermine each party's case impartially for the jury's consideration and determination. What is critical is that the judge's presentation and any expression of the judge's personal view must be justifiable by reference to the twin touchstones of balance and fairness. That will involve a careful and judicious use of language. By way of example, in Naz [2017] EWCA Crim 482 Treacy LJ said:

In saying this, we recognise that this exercise may be difficult and require considerable judicial skill. Specifically, though we make clear that this does not apply in the present case, there may be occasions where the speeches of counsel have not served to assist the jury in concentrating on the strengths and weakness of the cases for and against a defendant and it is necessary for the judge in summing-up to establish the focus that was previously missing. Even in these circumstances, however, the best and usually the only way to achieve a fair result is to sum up "straight down the line" adopting the principles set out above.

Where the summing-up is unbalanced and unfair, the remedy is that the conviction must be set aside. As Treacy LJ said at para. 32 of Naz:

We propose to concentrate on the summing-up. In oral submissions Mr Kherbane also focused on interventions by the judge during his cross-examination of PC Sohal. While we can understand the sensitivity of the appellant to any disruption of this important part of the putting of his case and though we think it fair to observe that the interventions tended to go towards clarifying and thereby supporting evidence that had been given by the officer, we are not satisfied that they do anything more than provide part of the background context for the more fundamental criticisms that are made of the summing-up. Mr Kherbane realistically accepted that as with some of his other submissions if his complaint about interventions in his cross-examination were all that he had, this appeal could not succeed.

We therefore turn to the summing-up itself. It covers 19 pages of transcript up to the point of sending out the jury and was a split summing-up with speeches in the middle. Just over 11 pages were legal directions which were given on 21 January. The summing-up of the facts took approximately eight pages the following morning. The legal directions as a whole are best described as being pared down. This is not necessarily a criticism of the summing-up: conciseness will often lend clarity. The directions covered the conventional topics: the function of judge and jury, the burden and standard of proof, separate consideration of separate charges, there being no more evidence and an injunction against speculation and the need to assess all witnesses and their evidence, which was prefaced with the words "all witnesses start equal." The judge then outlined the elements of the charges and summarised the prosecution and defence cases in briefest outline. His account of the defence case at this point was:

The judge said, correctly, that the prosecution and defence case on the charge of possessing ammunition was interchangeable with the case on the charge of possessing the firearm. The judge then turned to the evidence of Mr Johnson, which had been admitted as hearsay. It is at this point that criticism of the summing-up starts in earnest. The judge, having told the jury that his evidence was in dispute, said:

The judge told the jury about the declaration on his signed statement, but did not at that point mention that his evidence had not been given on oath or affirmation, although that was mentioned later. The judge went on to emphasise the positive aspects and suggested that Mr Johnson's evidence was reliable in a long passage that cannot readily be paraphrased as follows:

This passage gives rise to the following points, all of which would have acted to the disadvantage of the appellant. First, at the outset and throughout this passage the judge highlighted matters that could serve to confirm the summary of Mr Johnson's evidence that he had given. Second, having referred to the "advantage" of having heard and seen Mr Johnson on the body-worn material and said that the jury did not have the advantage of hearing his evidence tested, the judge affirmed Mr Johnson's status by saying that it was "not suggested that he had been untruthful in anyway". Third, having identified that the body-worn material showed Mr Johnson further down the road carrying the bag, the judge offered an explanation that might justify the apparent discrepancy between where he was and where the appellant had been. The judge did not refer to any other point that the defence would make about his evidence, including that he had said that he had not seen the appellant with a bag and that he had pointed down the road. He merely said: "The defence suggest that Mr Johnson's evidence is at odds with what the video shows and so that makes his statement unreliable" before returning to reiterate that Mr Johnson's evidence in his statement was that he had found the bag where the appellant had been.

There is nothing intrinsically wrong in identifying other evidence that may go to support Mr Johnson's evidence. However, it is a notable feature of the summing-up that although the judge here and elsewhere referred to PC Sohal's "recollection about seeing the defendant lift the strap of the man bag over his head before making off," the judge did not at any point in the summing-up refer to the difficulties in PC Sohal's evidence about what he saw, to which we have already referred.

While we would not set aside this conviction solely on the basis of the judge's treatment of Mr Johnson's evidence in this passage, it alerts us to the need to review the summing-up as a whole with an eye to whether the apparent lack of balance is continued or remedied. The rest of the legal directions are in our judgment largely unexceptional, save that when giving a direction on lies the judge departed from the conventional direction along the lines suggested by the compendium in a way that watered down the protection for the appellant to some extent. Again, if this were the only complaint, it would not render the appellant's conviction unsafe.

Turning to the judge's summing-up of the facts. He first summarised the evidence of the prosecution witnesses other than Mr Johnson whose evidence he had already covered. When dealing with the evidence of PC Sohal in relation to the critical issue whether the appellant had possession of the bag, he merely recounted that:

With one possible exception, there is no attempt to mention or sum up the significant points that had been drawn out in cross-examination of PC Sohal to which we have referred above. The exception is where the judge said:

This in our judgment substantially underplays the significance of this error on its own and of the cumulative effect of the cross-examination of PC Sohal as a whole. Whatever the judge's view of the strength of the prosecution case or the weakness of the defence case, there were real points to be made on the question of PC Sohal's reliability as a witness and they are not to be found anywhere in the summing-up. We see this as a serious deficiency in relation to the critical issue in the case.

The judge then dealt with the other prosecution evidence. Small opportunities were taken to bolster the prosecution account. Police Constable Regan was said to be "clear in her evidence to you" that the appellant had ducked “behind the wall, because as she put it he was hiding something or had something to hide.” And the opportunity was taken to say that "[The appellant's] ability to answer questions was not impaired by having to rest in the police cell all day." The judge then referred to there being "nothing about the firearm in any surviving messages left on the phone on the card", to which the appellant reasonably takes exception, because it was an agreed fact that there were no deleted messages either. Once again, these are not points that determine the outcome of this appeal on their own, but they provide some indicative context for our overall view.

As the judge turned from the prosecution's evidence to that of the appellant, there was a marked change in approach. One small but not insignificant marker of the change might pass unnoticed, but is subtly undermining of the appellant's case. When summing-up the prosecution evidence, the judge recited it very largely as if it were established fact e.g. in relation to PC Sohal at one point he said:

At an early stage in his summing-up of the appellant's evidence the judge had started to make observations that indicated his view of the evidence rather than merely presenting it and as necessary analysing it. For example, when describing the events that had led to the appellant's first encounter with the police that evening, the judge said:

This passage is not central to the case, but it strikes us as indicative of an approach that uses expressed scepticism bordering on sarcasm to undermine without an attempt to do it by reference to evidence. For example, we do not find it intrinsically surprising that a convenience store in such an area of London might be open at that time of night and we are told that there was in fact no evidence on the point. Nor are we told there was any evidence to justify the comment about it being a bit of a dangerous and unnecessary walk.

Worse was to follow when dealing with the appellant's explanation. The judge said in a passage that takes one and a half pages of the eight pages of summing-up of the facts:

In our judgment, this passage would not have been out of place in a prosecution speec but was inappropriate for a summing-up. There were points that could reasonably be made in a summing-up in accordance with the principles that we have identified above, but there is in this sustained passage no attempt at balance or the sort of moderation that is appropriate when carrying out a judicial analysis or presentation of both sides of the case for the purposes of identifying the real issues for the jury. Even without the judge's statement that the defence account seemed farfetched to him, the jury hearing this passage can only have concluded that the judge did not consider the defence case to be worthy of serious consideration.

We hesitate to identify particular words or phrases since it is the cumulative impact of the passage that is so damaging, but we note the following points. One, to say "does that seem likely to you? It seemed a farfetched submission to me" in context appears to us to be a clear example of an ill-considered statement of a personal view, contributing to an apparent sarcasm that is to be found in the immediately preceding and following passages. Second, the repeated rhetorical questions "why would ...?" have a cumulative effect that is pejorative to an unacceptable degree. Third, the situation is not salvaged by the question at the end:

We have looked anxiously to see whether there is anywhere in the summing-up an attempt to provide balance by a fair presentation of those points which could properly be made on behalf of the appellant. We find none. Our concerns are only heightened by the judge's response when, immediately after the jury had retired, counsel for the appellant with some courage submitted that the judge had not summed up the defence cross-examination of the prosecution witnesses at all and a number of significant points which he said were in error in the summing-up. Counsel concluded:

This is a case where the detrimental effect of the approach adopted in the summing-up is demonstrable. On the morning of 23 January 2020, the morning after they had been sent out, the jury sent a note which said:

The judge's initial proposal was that he should say "What I described as farfetched was the suggestion with hindsight that the defendant's Trellick Tower friend must have left a loaded firearm in a man bag behind a low wall by a bus stop in a well-lit area surrounded by residential flats" before going on to say that the prosecution brings the case that must make the jury sure of his guilt. The proposed answer was then to be further developed. After a moment's reflection, Mr Franklin, who was prosecuting, wisely suggested that the judge should repeat the standard direction that the judge's view of the facts was irrelevant, unless the jury happen to agree with it or something similar. He offered this suggestion "just in case". A little later he submitted that such an approach was desirable:

When the jury returned to court, the judge's direction was:

He then went on to deal with the second question. We are not privy to the jury's thinking when they prepared their note, but we share Mr Franklin's concern. The note demonstrated that the jury was putting weight upon the judge's expression of his view that the explanation was "farfetched." We recognise that following Mr Franklin's suggestion the judge reminded the jury that they were the judges of the facts, not him; but he did not go so far as had been suggested by Mr Franklin to reiterate that if the jury disagreed with his view they were to disregard it. In any event, we cannot see the answer that was given to the jury as providing an adequate remedy for the fundamentally unbalanced approach that had been adopted, not least because (a) the judge repeated his formulation of what he considered to be farfetched and (b) his answer to the specific question did not address the whole of the passage to which we have referred above.

As we have indicated in the course of this judgment some of the criticisms of the summing-up, if taken in isolation, would not justify a conclusion that the trial process was so unfair as to require the quashing of the appellant's conviction. However, having analysed the structure and content of the summing-up as set out above, we have come to the conclusion that this summing-up crossed the boundary between reasonable comment and careful expression of a judicial view on the one hand and unbalanced and unfair advocacy on the other. Adopting the principles that we have set out above, there was here a failure to summarise the nature of the evidence relating to the important issues or to provide a balanced account of the points raised by the parties. Notwithstanding the apparent strength of the case against him, the appellant was entitled to have his defence faithfully and accurately placed before the jury. That was not done in material respects in relation to the critical issue in the case. The summing-up did not focus the jury's attention on the issues of fact which they needed to decide or remind them of the main evidence bearing on those issues. To make matters worse, to the extent that the evidence was summed-up, it was not summed-up even-handedly or fairly in the respects we have identified. Repeatedly, the summing-up exceeded the proper bounds of pointing out matters that tended to support or undermine either party's case. So far as this was done at all, it was preponderantly the case that the summing-up pointed out matters that tended to support the prosecution's case or undermine the appellant's.

Furthermore, we conclude that the failings were so pervasive that the appellant's conviction must be quashed, not merely because of the failure of fair process, but because there is a real likelihood that the tone and the content of the summing-up may have swayed the outcome of the jury's deliberations unfairly and decisively. For both these reasons, therefore, this conviction must be quashed.

We appreciate that we have not attempted to address all the issues raised by the appellant, but we see no useful purpose in lengthening this judgment given our conclusion on the central issue that has been raised. We therefore allow the appeal and quash the appellant's conviction. That being our decision, we have considered whether there would be a substantial risk of prejudice to the administration of justice in any retrial if a report of this appeal or if this judgment were to be published before any such retrial is concluded. We are satisfied that there would be and that in order to avoid that risk it is necessary for reporting to be postponed. We will accordingly make an order pursuant to s.4(2) of the Contempt of Court Act 1981 postponing any report of this appeal or of this judgment until any retrial of the appellant has been concluded or until further order of this court or of the Crown Court. That concludes our judgment.