Yousefi, R v

The appellant stood trial between 19 June and 17 August 2018 in the Crown Court at Isleworth before Judge McDowall and a jury and was convicted of three identity document offences and five dishonesty offences. They were: one offence of possession of an improperly obtained identity document with intent, contrary to section 25(1)(b) of the Identity Cards Act 2006 (count 1), two offences of possession of an identity document with improper intention, contrary to section 4(1) and (2) of the Identity Documents Act 2010 (counts 3 and 4) and five counts of fraud under section 1 of the Fraud Act 2006 (counts 5 to 9). He was sentenced on 21 August 2018 to concurrent terms of 18 months' imprisonment on counts 1, 3 and 4, to a consecutive term of three years' imprisonment on count 5, a further consecutive term of four years' imprisonment on count 6 and concurrent terms of four years' imprisonment on counts 7 to 9. The total sentence therefore was 11 years and six months' imprisonment. He appeals against his convictions by leave of the single judge.

Over a period of 10 years between 2000 and 2017, fraudulent claims for various types of state benefit were made under five different identities. As a result of the fraudulent claims, a total of £714,364.24 were defrauded from the public purse and paid into various personal bank accounts.

The appellant, who is aged 64, was an Iranian national living in the United Kingdom. On his return to this country from a trip to Turkey in May 2017 he was arrested at Heathrow Airport. He was using a passport in the name of Parviz Behbahani (count 4). He was in possession of an iPhone which contained images and messages relating to other identities. When his home was searched, further documents were found relating to identities other than his own.

In interview the appellant initially answered some questions, but early on he stated that he was tired and ill and needed medication. Thereafter, he remained silent for the rest of the interview.

It was the prosecution case that the appellant improperly obtained identity documents in different names and then assumed those false identities in order to make fraudulent benefit claims. The appellant had applied for and obtained passports in the names Parviz Rahbar (counts 1 and 3) and Parviz Behbahani (count 4). He had made fraudulent benefit claims under his own name, Parviz Yousefi (count 5), Parviz Rahbar (count 6), Ali Habibpour (count 7), Hadi Atashsokhan (count 8) and Jvad Hoshvar (count 9).

The prosecution relied on extensive documentary evidence relating to the various identity documents the appellant obtained, applications for benefits and deed pole name change applications made by the appellant, along with banking documentation showing benefit payments into various accounts linked to the appellant.

David Sisley‑Collet from Her Majesty's Passport Office produced evidence of passport applications and passports issued to the appellant, showing details linked to, and photographs said to be of, the appellant. Catherine Warner and Carole Whitlock from the Home Office gave evidence of the appellant's immigration status and various applications and documents he submitted to the authorities regarding the different identities. Analysis of his telephone revealed images, emails and messages relating to various different identities he had used. A facial mapping expert, Mr Blythe analysed the images on the identity documents and applications and stated that there was "strong support" for the conclusion that they all showed the appellant. There were agreed facts that were reduced to writing and distributed to the jury.

The prosecution relied on adverse inferences from the appellant's failure to answer questions in interview and evidence of his bad character. The latter concerned, inter alia, his previous convictions from 1992 ("the Teesside convictions") and other material. The evidence of bad character was introduced to correct a false impression created by the appellant during his evidence.

The appellant admitted he had changed his name several times and had obtained documents in these identities. His case was that he had used several of these different identities in order to travel in and out of Iran due to his dissident political activities in that country. He accepted, therefore, that he had travelled using different names including Parviz Behbahani, Javd Hoshvar and Hadi Atashsokhan. Indeed, having been stopped entering the United Kingdom in 2010, he had pleaded guilty to three offences of possessing improperly obtained identity documents, a UK and an Iranian passport in the name of Jvad Hoshvar and an Iranian passport in the name of Hadi Atashsokhan. He denied using his true identity or any other identities fraudulently to claim benefits.

Additionally, he accepted he had applied for both the Parviz Behbahani passports (counts 2 and 4) believing that he was entitled to do so having changed his name from Yousefi by deed pole. He denied ever using the Parviz Rahbar identity and denied applying for either of the Parviz Rahbar passports (counts 1 and 3). He accepted applying for benefits in the name of Parviz Yousefi and maintained that this was not dishonest (count 5). He had received some £62,300 but he gave evidence that these claims were not fraudulent as he was a UK citizen and was genuinely ill, and therefore he was entitled to make these claims. He denied being responsible for any of the other benefit applications in the names of Rahbar, Habibpour, Atashsokhan and Hoshvar (counts 6 to 9). He suggested that other people may have hijacked his identity.

The appellant gave evidence over three days between 27 July and 31 July 2018.

The central issues for the jury were whether it was the appellant who had improperly obtained the Parviz Rahbar passports, whether the Parviz Behbahani passport was improperly obtained, whether the Yousefi benefit claims were made dishonestly and whether it was the appellant who had made dishonest applications for benefits using the other identities.

Although the appellant originally relied on a ground of appeal relating to the judge's decision to admit the evidence of bad character, this has not been pursued. The sole surviving ground of appeal relates to suggested flaws in the summing‑up which are analysed in detail hereafter.

The respondent candidly accepts there were deficiencies in the summing‑up in terms of its brevity, lack of structure, mistakes in terms of the directions of law and the general lack of detail. However, it is argued that the remedial steps that were taken addressed the key deficiencies; the jury were conscientious and diligent; and in all the circumstances the convictions are safe. It is argued that given the jury had clearly focused carefully on the evidence during the case, as demonstrated by the many questions they asked, there was sufficient protection for the appellant that they had appropriately approached the facts and any factual element of the various directions in law.

We regret that the judge's summing‑up in this case was beset with multiple failings. By way of an initial summary, the majority of the directions in law were in error, in some instances seriously so. The judge failed even to attempt to sum up the evidence or the issues in the case and he engaged in what is best described as a series of homilies on various subjects by giving examples or images that were unrelated to the facts or the circumstances of the trial and which would, in consequence, have been materially distracting for the jury. Once the judge had indicated that the summing‑up was nearly at a close, Mr D'Cruz (for the prosecution), entirely appropriately, pointed out in restrained but clear terms, in the absence of the jury, that the judge had not summed up the evidence or provided any analysis of the contested issues. He suggested that the summing‑up, which had lasted about 40 minutes, contained many "inadequacies" and that the judge needed to start the summation again. He highlighted apparent errors with the direction on the failure to mention facts in interview and the direction on dishonesty and the wholesale lack of any direction on the nine counts in the indictment (which the prosecution successfully at this late stage applied to amend) along with other problems.

Although after an overnight adjournment the judge adopted and read out written directions on the charges as drafted by prosecuting counsel, and he made some corrections on the direction as to the inferences that may be drawn from the failure to mention facts in interview, he did not take any other steps to recast the summing‑up.

We stress that this summing‑up was delivered in the month before the judge's retirement and we are conscious that the trial came at the end of a long career on the Circuit Bench. We have sought to exercise restraint in describing our criticisms of the judge's summation, but the deficiencies were pervasive and profound. We would wish to emphasise that what happened in this case was an exceptional event and does not in any way reflect the usual impressively high standard of summings‑up, which are in the vast majority of cases the result of the painstaking hard work and professionalism that characterises the work of the Circuit Bench.

At the commencement of the summing‑up, the judge said that he was not intending to take the jury through "all the vast amount of documents" because they had been "paying close attention". Instead, he invited them to send a note if they were unable to agree as to what a witness had said. He made similar remarks at the end of his observations and instead of summing‑up the facts in any way, he simply said:

He did not remind the jury of the evidence of any of the 23 witnesses, save in the most general sense as regards the appellant and the expert evidence as regards facial recognition and he did not refer the jury to a single document from the extensive jury bundle to which there had been frequent and detailed reference during the trial. There was no attempted rehearsal of any of the detailed issues in the case, even after counsel asked him to take this step. We have in mind of course that counsel had each addressed the jury at length and no doubt with clarity.

The judge's approach in this regard was in breach of his clear duty to sum up the facts in order to assist the jury and to ensure a fair trial. It was equally incumbent on the judge to define the issues and to remind the jury of the evidence they had heard which related to those issues (see Brower [1995] Crim L R 746). The failure by the judge to sum up without a review of the facts or the issues was, particularly in the context of this lengthy case, a clear and serious procedural irregularity (see Amado‑Taylor [2000] 2 Cr App R 189). In Amado‑Taylor the court stressed that counsels' speeches were no substitute for a judicial and impartial review of the facts from the trial judge who was responsible for ensuring that the defendant had a fair trial. Furthermore, the judge needs to arrange the evidence issue by issue ‑ a task which could not be passed on to the jurors, even if they were taking notes. Judges, therefore, have long been exhorted to assist the jury by analysing the evidence and relating it to the various issues raised during the course of the trial. It is self‑evident that this does not involve rehearsing all of the evidence that has been given, but it is necessary for the judge to identify the major issues and the principal evidence relevant to those issues, whether in dispute or not. This can be achieved in a focused and selective manner, but the judge's summary must be clear and the main elements of the cases for the prosecution and the defence need to be explained and the principal evidence germane to their respective cases and any other significant issues that have been raised must be identified.

We adopt the summary provided by Simon LJ in R v Reynolds [2019] EWCA Crim 2145; [2020] 1 Cr App R 20 when dealing with the form and style of a summing up:

“54.

What is helpful will depend on the case. A recitation of all the evidence and all the points made on each side is unlikely to be helpful; and brevity and a close focus on the issues is to be regarded as a virtue and not a vice, see Rose LJ in Farr (The Times, December 10, 1998) cited in Amado-Taylor at 192A. Since a summing-up of the evidence is by its nature a summary, it is bound to be selective; and providing the salient points are covered and a proper balance is kept between the case for the prosecution and the defence, this Court will not be lightly drawn into criticisms on points of detail.

55.

Secondly, a succinct and concise summing-up is particularly important in a long and complex trial, so as to assist the jury in a rational consideration of the evidence, see D, Heppenstall & Potter [2007] EWCA Crim 2485; [2008] Lloyd’s Rep F C 68:

“33.

One principle is, however, of cardinal importance in assessing the fairness of the trial process. A summing-up must accurately direct the jury as to the issues of fact which it must determine (see R v Lawrence [1982] AC 510 at 519). The summing-up must:

“fairly state and analyse the case for both sides. Justice moreover requires that [the judge] assists the jury to reach a logical and reasoned conclusion on the evidence. (See per Simon Brown LJ in R v Nelson” [1997] Crim.L.R.

234)

[…]”

The directions given by the judge to the jury should provide the jury with the basis for reaching a rational conclusion. The longer the case the more important is a short and careful analysis of the issues. […]”

It has sometimes been observed, particularly in older reports, that this requirement may not necessarily apply to very short and straightforward cases (see for instance Stoddart (1909) 2 Cr.App.R 217 at 313), but we observe that even with single count, single witness trials the judge will still need, however shortly, to describe what the issue or issues are and to do this effectively, he or she will usually need to summarise the evidence relevant to those issues. It may be possible to do this in a relatively few sentences. Whether a failure to undertake this exercise renders the verdict unsafe is a matter to be determined on the basis of the circumstances of the individual case.

The judge, having directed the jury to try the case on the evidence and not to speculate as to what absent witnesses might have said and most particularly from those individuals

The relevant passage in this regard, which is markedly difficult to follow, is as follows:

To the extent that this and other passages appear to suggest that the jury could draw inferences from the failure by the appellant to call witnesses, such a direction was not in accordance with the law. Mr D'Cruz accepts that the judge appeared to direct the jury that they could draw inferences against the appellant from his failure to call witnesses, albeit he suggested in the instance just cited that it may not have involved a material error. In our judgment, the judge should have made clear that the jury should not draw any adverse inference from the absence of a witness and they should simply decide the case on the evidence they had heard, without speculating about the evidence a witness might or might not have given. In Forsyth [1997] 2 Cr.App.R 299, this court criticised the judge for having suggested to the jury that there was no "property in a witness" in a case in which a note had been sent by the jury asking about the absence of a witness. In Wright [2000] Crim.L.R 510, this court underlined that comments on the failure to call a particular witness may amount to a reversal of the burden of proof. As the Vice President of the Queen's Bench Division, Kennedy LJ, observed:

In this summing‑up the judge fatally undermined his direction that the jury should not speculate on the absence of witnesses by dwelling on the ways in which their evidence might have been introduced and by directing the jury that it was a matter for them to determine the significance of the fact that a witness had not been called. This was an issue on which the judge should have given the jury short, clear and accurate directions in just a few sentences. He entirely failed to do so.

We indicated earlier that the judge engaged in what is best described as homilies on certain issues by providing examples or images that were wholly unrelated to the facts or circumstances of the present case and which would have been highly distracting for the jury. One important example related to names. The prosecution case was that the appellant improperly obtained identity documents in different names and then assumed these false identities to make fraudulent benefit claims. The defence case was that the appellant had changed his name several times and had obtained documents in some of these identities. He admitted using several aliases in order to travel in and out of Iran due to his dissident political activities in that country, but he denied using his true identity or any other identity fraudulently to claim benefits. He accepted that he had applied for both of the Parviz Behbahani passports, believing that he was entitled to do so having changed his name from Yousefi by deed poll. He denied ever using the Parviz Rahbar identity and denied applying for either of the Parviz Rahbar passports. He denied being responsible for any of the other benefit applications in the names of Rahbar, Habibpour, Atashsokhan and Hoshvar.

The judge's observations on the use of names were as follows, and as the opening sentence indicates this was delivered as one of the directions on the law:

The first three paragraphs, as with essentially the rest of this quotation, did not contain any relevant directions in law (save in one very limited respect) and consisted almost entirely of observations by the judge that would have failed to provide the jury with any assistance on the issues in the present case. The judicial comments about practices within the Catholic church and within familial or friendly settings as to the use of names were not in any meaningful sense germane to the issues on either the prosecution or defence cases. Indeed, it is agreed by Mr D'Cruz that this section was unhelpful.

The same applies to the judge's observations about the likely reaction of those in positions of responsibility to the number of times an individual might change his name by deed pole, save perhaps as regards the simple point that there is no legal bar to the number of times that you are allowed to change your name. That direction in law could have been given in a single short sentence.

The fourth paragraph referred briefly to an aspect of the evidence which the jury had heard as regards further information that was sought because, for instance, of an erroneous date of birth. In the fifth paragraph the judge seemingly returned to the issue of missing evidence and although it is by no means entirely clear, he seemed to suggest that there may be an explanation for the lack of evidence from the Iranian authorities or the security services as to the appellant being a person of interest ("his identity is on the radar"). The sixth paragraph contains comments about the kinds of problems that are sometimes experienced by travellers when their documents are challenged ‑ observations that have no apparent relevance to this case. In the seventh paragraph the judge summarised the bare outline of the prosecution case and reminded the jury that there was a matter of dispute as to why the appellant had different identities.

These directions in nearly every respect would not have been of any substantive assistance to the jury, save faintly at the end by reminding them of the outline of the prosecution case and of the fact that the law permits you to change your name any number of times. Otherwise, they did not include any directions on the law. They involved discursive and almost entirely irrelevant comment, and it was extremely difficult to understand the point or points that the judge was trying to communicate that were of relevance to the case. On nearly every issue, these remarks should not have been made and we have quoted the passage in full because it is paradigmatic of the content of this summing‑up.

The judge's direction on the appellant's bad character was substantially deficient. During his evidence in the present trial, the appellant stated that he had never used the Habibpour identity. He suggested that he had been in business with Habibpour, supplying pizza ingredients, thereby suggesting that Habibpour was a real person. He also, in summary, claimed that he had lived a life of high-minded political struggle against oppression and that his career had been characterised by notable educational goals and hard work. As a result the prosecution were permitted by the judge to introduce the appellant’s nine previous convictions for obtaining a pecuniary advantage or property by deception and one conviction for an attempt to obtain a pecuniary advantage by deception at the Teeside Crown Court on 10 February 1992 and for which he was imprisoned for 18 months. These offences related to the use of cheques in an identity other than his own.

The prosecution were also permitted to introduce other evidence, which had not led to a conviction, concerning the suggested use of the Habibpour identity by the appellant when he carried out certain transactions, and in particular the occasion when the appellant had presented a cheque by Habibpour to pay for food stuffs.

The convictions and the other material had been introduced, therefore, to correct particular false impressions created by the appellant during the course of his evidence. The judge's direction as to the significance of the convictions was as follows:

The judge failed to explain to the jury why the evidence of bad character had been introduced and the ways in which they could properly use this material. He correctly suggested that the appellant should not be convicted simply because of his convictions for dishonesty and that they may add "some weight" to the prosecution case. However, the reason why the judge had permitted this material to be introduced was very specific in that it related to particular evidence that the appellant had given as set out above. Although the use to which the evidence may be put at the end of a case is not necessarily limited by reference to the gateway through which it was admitted, nonetheless the judge needs to give clear assistance to the jury as to the matters to which it is logically relevant. Having indicated to them that this material had not been admitted because it revealed strikingly similar criminality, the judge merely added:

The judge had clearly failed to decide whether or not the impact of this evidence was limited to section 101(1)(a) of the Criminal Justice Act 2003 (correcting a false impression) and he similarly omitted to direct the jury, as we have just highlighted, as to the uses to which it could properly be put. These issues were discussed in R v Highton [2005] EWCA Crim. 1985, [2006] 1 Cr App R 7 by this court:

The care that the judge must exercise in giving the jury appropriate directions as to why

The direction the judge gave as to silence in interview was as follows:

In nearly every respect the judge failed to give the directions that are necessary in this context. The one partial exception is that the judge reminded the jury that the appellant was cautioned before the interview and was told he did not have to say anything and that it might harm his defence if he did not mention something when questioned. However, even in this regard the judge failed to direct the jury on the crucial issue that this warning related only to items which he later relied on in court. There was therefore, even in this regard, an incomplete direction, given the appellant needed to have been informed that conclusions might be drawn against him if he failed to mention facts when interviewed (direction given) which he later relied on as part of his defence (direction not given).

The following day, at counsel's prompting, the judge gave the following direction:

Although this direction addressed some of the previous day's omissions, it was not clearly expressed and the judge failed to (i) address the requirement that the facts the appellant failed to mention were facts he relied on at trial, (ii) identify which facts came within this category and (iii) set out the requirement that before drawing an inference the jury needed to have found that the prosecution case at interview was such that it called for an answer. It follows that even following prompting by counsel and an overnight adjournment, the judge failed to give an adequate direction on this issue. In the event, the jury were given two different directions on this issue, neither of which were in writing, and both of which failed to address all of the matters which the jury needed to resolve before reaching a conclusion on the issue.

The direction on the defence case

The judge was under the long-established duty to summarise the defence case, at the very least by identifying the central elements of the appellant's defence and the main evidence and arguments that supported it in order to ensure the jury receives a coherent rehearsal of the case advanced by the accused. In Curtin [1996] Crim L R 831, Rose LJ stated:

We observe that these requirements, all of which were necessary at the conclusion of this eight‑week trial, were entirely absent.

It follows that this critical task could have been undertaken in a focused and succinct manner, but the judge did not embark upon the exercise.

In the original directions to the jury, the extent of the judge's directions on the counts in the indictment were as follows:

In addition, on the issue of dishonesty, the judge wholly erroneously stated:

The judge was persuaded to give fresh directions following the overnight adjournment, about which there is no substantive complaint. They were provided in writing and were read out to the jury before they retired.

The appellant criticises the amendment permitted towards the end of the summing‑up as to the wording of counts 5 to 9. Although this was a markedly late alteration to the indictment, as Mr D'Cruz points out, the amendment was to delete the word "false" in each of the fraud counts and to add after the word "representation" the following rubric: "which was and which he knew was or might be untrue or misleading." The effect of this was to change the wording of the count to reflect the wording of the statute. It clarified the requirements for a finding of guilt and although it does not affect our decision on the outcome of this appeal, we do not consider that this step caused unfairness or undermined the safety of the conviction in that it did not substantively change the case the appellant had to meet.

The cumulative effect of the deficiencies in the summing‑up, as set out above, save as regards the directions on the counts in the indictment which were rectified, lead us unhesitatingly to conclude that the convictions are unsafe. Indeed, a number of the deficiencies standing alone undermined the safety of these convictions. It follows that the appeal is allowed, and the convictions are quashed.

The court directed a re-trial. The appellant pleaded guilty on Monday 21 September 2020 and he was sentenced to a term of imprisonment of just under seven years the following day.

The order postponing publication of this judgment until the conclusion of the re-trial has therefore come to an end and this judgment may now be published.