Shahid Mohammad v Palvaan Islaam

In this judgment we refer to the appellants as ASJ (Shahid Mohammad), BOZ (Zahid Habib Mohammad), ANF (Adnan Sharif), and BSZ (Usman Sharif). Their co-defendants, who have not appealed, we will refer to as MM (Mohammed Maroof), IM (Israr Mahmood), AA (Atiq Ali) and MG (Mohsan Hussain). The other co-defendant, PI (Palvaan Islaam), has also not appealed but is a respondent to the appeal.

On Monday 13 November 2023, which was day 39 in week 10 of a trial, the jury retired to consider their verdicts on nine counts of fraud. On the morning of the fourth day of their deliberations (16 November), the jury informed the court of two incidents of jury tampering which had taken place about a fortnight before. There is no challenge to the Judge's finding, after investigation, that jury tampering had indeed taken place. There is no challenge, either, to his decision (on 17 November) that the whole jury should be discharged.

This interlocutory appeal concerns the decision of HHJ Andrew Smith KC (“the Judge”) (on 30November) to continue the trial without a jury. That decision is supported by the Crown and by the respondent PI. It is challenged by the appellants, ASJ, BOZ, ANG and BSZ.

The Judge's decisions were made under section 46 ("section 46") of the Criminal Justice Act 2003 ("the 2003 Act"). The challenge is made under section 47 of the 2003 Act ("section 47"). The Judge himself gave leave under section 47 and, by virtue of section 47(3) of the 2003 Act, his order that the trial should continue without a jury ("the Order") has not taken effect pending the outcome of this appeal. By section 47(4) it is open to us to confirm or revoke the Order.

Sections 46 and 47, so far as relevant, provide as follows:

The prosecution case is that in 2015 and 2016 the appellants and their co-defendants committed fraud against His Majesty's Revenue and Customs ("HMRC") and various car finance companies. The offences are said to have been carried out under the cover of, or to have been assisted by, the use of numerous companies and bank accounts. The total losses are said to amount to just under £700,000.

The alleged frauds against HMRC are said to involve false tax declarations that a VAT registered company was entitled to payment on the basis that in a particular period the company had paid more VAT than it had received in sales. In fact, none of the companies in question are said to have been trading at the time. Fraudulent loan applications are alleged to have been made to the car finance companies, using false identities.

The indictment originally contained ten counts of fraud and money-laundering covering the period from January 2012 to November 2016. Nine counts were left to the jury. There is little dispute that frauds have been committed. The real issue is as to the identity of the fraudsters.

The nine outstanding counts can be broken down as follows:

The trial began on 4^th September 2023. The jury were discharged from returning a verdict on count 1 on 25^th September 2023. The Judge heard and rejected submissions of no case to answer made on behalf of BSZ, PI, IM and AA.

ASJ then gave evidence, which he did over two days. None of the other appellants or co-defendants went into the witness box.

The jury began their deliberations on counts 2 to 10 on Monday 13^th November 2023. On the morning of 16^th November 2023 the jury sent a note which disclosed that a juror had been approached to influence what was described as "our decision".

The Judge proceeded to investigate the identification of a jury irregularity in line with the stepped process identified in the Criminal Practice Directions. It was discovered that two separate approaches had been made to one juror (Juror 4) by different third parties on two consecutive days approximately a fortnight earlier.

Juror 4 said that, in the company of another juror (Juror 2), he had been approached as he left court by someone whom he had seen previously but did not know personally. That person had been in the public gallery of the court on the day of the approach, but not otherwise. He had offered Juror 4 a lift, which Juror 4 had declined. He had asked Juror 4 about his family, and indicated that some of the defendants were his friends. Juror 4 said that he discussed the situation briefly with Juror 2.

Juror 2 said that he had walked out of court with Juror 4 and observed Juror 4 being greeted and asked if he wanted a lift. Juror 2 had then walked off. Juror 2 made no mention of any further exchange between himself and Juror 4.

Juror 4 described another incident the following day when another person, whom he did know very well, approached him at the end of the court day. That person stated that "the fattest one" was his cousin and that he was concerned about his cousin "going down". The person added that he was not concerned about the other defendants. Juror 4 stated that he was fearful for his family. "The fattest one" appeared to be a reference to PI.

Juror 4 did not disclose these approaches at the time that they were made. He did reveal them to a number of other jurors on 13 November 2023 (before the jury were sent out to commence their deliberations on that day). During the course of their deliberations, all jurors learned of the detail of both approaches. The issue was not raised with the court until 16 November 2023. At this point the appellants and their co-defendants, all of whom had been on bail, were remanded into custody.

On 17November 2023, the Judge concluded "unhesitatingly" that Juror 4 had to be discharged. Further, he was satisfied that a fair-minded and informed observer would conclude that there was a real possibility of bias on the part of all jurors as a reaction to the events such as to render any convictions unsafe. There was no available cure by any adaptation of the trial process at that stage. Accordingly, the whole jury would be discharged.

On 18 November 2023 the appellants and their co-defendants were released on conditional bail.

Following the decision to discharge, prosecuting counsel indicated that the issue of continuing without a jury would be raised, although the Crown would be neutral on the issue. Counsel for MM then indicated that he would be applying for the trial to continue without a jury, pursuant to section 46(3).

The Judge had before him written and oral submissions from all parties on the issue. The appellants each resisted continuation of the trial without a jury. By contrast, PI, IM, AA and MH each contended that the trial should continue with the Judge alone. MM and the Crown took an essentially neutral stance, although the Crown submitted that there was a proper basis for the Judge to find that it would be fair to continue with the trial and that the interests of justice favoured that course of action.

Prior to the Judge's decision to discharge the jury, no express reference had been made in court to the provisions of section 46, nor was there any mention of the possibility of continuing the trial without a jury (pursuant to section 46(3)). There was, however, reference to Part 8.7 of the Criminal Practice Directions ("CPD"), which in turn referred in terms to section 46. The Judge considered that the absence of any earlier reference to section 46 had not given rise to any material disadvantage to any defendant. There had been consistent overt reference to Part 8.7 of the CPD. The discharge of the jury and the continuation of the trial, he said, were distinct and separate consequential considerations, engaging different tests.

In a 14-page ruling on 30^th November 2023, the Judge gave clear and detailed reasons for his decision to continue with the trial alone. He was satisfied to the criminal standard that it was fair to the appellants and their co-defendants to continue the trial without a jury. No party had suggested that he had exhibited actual or apparent bias. He had not seen any material that could raise such a possibility. He was able to put the knowledge of any material that was not before the jury (which related primarily, if not exclusively, to PI) to one side. No one suggested that the fact that he had determined a submission of no case to answer would introduce potential unfairness. He could fairly discharge the function of returning verdicts. He had paid close attention to the evidence during the trial, and the assessment of witness credibility was an ordinary part of his duty. In any event, counsel would be given the opportunity to address him as a tribunal of fact in written or oral closing submissions. The defence had additional protection in the fact that he would have to provide a reasoned judgment: see section 48(5) of the 2003 Act.

The Judge was not satisfied that the case was so unusual on the facts that the "very firm steer" provided in R v Twomey [2009] EWCA Crim 1035; [2009] 2 Cr App R 25; [2010] 1 WLR 630 ("Twomey") at [20] should be disregarded. The degree of connection between any defendant and the jury tampering made no difference.

The Judge further ruled that it was not in the interests of justice to terminate the trial. There was a strong public interest that jury tampering did not find its reward in an otherwise fair trial being stopped. The combination of the age of the alleged offending, the reliance upon the memories of both prosecution and defence witnesses, the point in the trial at which the jury were discharged and the fact that any re-trial was very unlikely to be listed before 2025 all supported it being in the interests of justice for the trial to continue. As it would not be unfair to continue the trial, it would not be desirable to sever one or more of the defendants from the indictment.

In conclusion, whilst the Judge recognised the long-established right to a jury trial, and that the court should be very careful in its assessment of whether a trial should continue after jury tampering, he was satisfied to the criminal standard that the relevant statutory tests in section 46 were met, that the trial would remain fair, and that he could continue without a jury.

The Judge then exercised his power to continue the trial without a jury, and made an order under section 46(3) to that effect. He then gave leave under section 47(2) to appeal.

In overview the submissions for the appellants are as follows:

In overview the submissions for the Crown and PI are:

In short, it is said that the Judge was right to make the decision that he did for the reasons that he gave.

Twomey rightly described trial by jury as "a hallowed principle of the administration of justice", but also recognised that the right to trial by jury can be amended or circumscribed by legislation, as it is by the 2003 Act: see [10]. A trial by judge alone will not necessarily be "unfair or improperly prejudicial to the defendant": see Twomey at [18]; and see also R v Twomey and others (No 2) [2011] EWCA Crim 8 at [4]). It is compatible with Article 6 of the European Convention on Human Rights: see Twomey v UK (2013) 57 EHRR SE15.

Parliament has enacted a statutory scheme allowing a trial to be conducted without a jury where there is a danger of jury tampering (sections 44 and 45) and for a trial to be continued without a jury when jury tampering appears actually to have taken place (sections 46 and 47). Such cases are unusual but, when they occur, both principle and statute ensure that the subsequent trial, whether with or without a jury, is conducted in accordance with the interests of justice. That is embedded in section 44(5) (when there is a danger of jury tampering) and in section 46(4) (when jury tampering appears to have taken place).

The conditions for trial without a jury under section 44 (danger of jury tampering) are:

The conditions for trial without a jury under section 46 (jury tampering has taken place) are:

In summary, therefore, the judge must be satisfied that jury tampering has taken place, and that to continue the trial without a jury would be fair, and that it is not necessary in the interests of justice for the trial to be terminated. He may then order the trial to continue without a jury.

These provisions have been considered by this court in a number of cases. We summarise the following principles:

We are not persuaded by the suggestion of procedural unfairness on the facts of this case. There is nothing in section 46 to suggest the need to address the question of trial without a jury before or in tandem with the question of discharge of the jury. The questions of discharge and continuation are separate and distinct; they engage different considerations. Indeed it is preferable to keep them apart, so that at the discharge stage, the judge focusses wholly on the question of whether discharge of the whole jury is really mandated.

In any event, the possibility of continuation without a jury must always have been obvious, not least given the repeated references to Part 8.7 of the CPD. It is difficult to see realistically on the facts how there could ever have been any different outcome on the question of jury discharge.

The Judge was entitled to conclude to the criminal standard of proof that jury tampering had taken place and there is no challenge to his finding to this effect. Any concerns about the reliability of Jurors 2 and 4 might have gone to this issue but are not otherwise relevant.

The Judge was also in our judgment right to conclude that the trial could continue fairly without a jury:

In short, we have no concerns about the Judge's careful assessment that he can provide the appellants with a fair trial although proceeding alone and without a jury.

Finally, there has been no challenge to the Judge's conclusion that it was not necessary in the interests of justice to terminate the trial. The reasons that he gave for continuation are indeed compelling: the strong public interest that jury tampering should not find its reward in an otherwise fair trial being stopped; the age of the alleged offending; the reliance upon the memories of both prosecution and defence witnesses; the point in the trial at which the jury were discharged; and the fact that any re-trial was very unlikely to be listed before 2025.

The Judge granted leave to appeal, not because he considered the ruling that he had made to be wrong in principle or unjustified in any way, but because he understood from the authorities that trial judges in similar situations to the instant case have invariably granted leave.

Parliament chose to grant a right of appeal from orders under section 46(3) or (5), but not an automatic right. That should be respected. By section 47(2), such appeals may be brought only with the leave of the judge or the Court of Appeal. Leave to appeal should only be given on a principled basis, namely where it is considered that there is a real prospect of success. There is no need for every case to come to this court simply because the event is rare or the consequence serious. There is now a body of caselaw and we have set out the principles. The judge need be no more willing to grant leave to appeal in these than in any other cases. If leave is refused by the judge, it can be sought from the Court of Appeal in the usual way.

For these reasons, we dismiss the appeals. We confirm the Order. The trial will continue before the Judge and without a jury.

In the circumstances, we also lift the reporting restriction imposed previously under section 4(2) of the Contempt of Court Act 1981.