R v Saaqib Chawdhury

This is an application by the prosecution for leave to appeal against a ruling by the trial judge (HHJ David Richards) at Inner London Crown Court, under section 58 of the Criminal Justice Act 2003. The ruling in question was a decision to stay a proposed retrial on count 1 of a three-count indictment after a jury had returned some verdicts on that indictment and failed to agree about two of three men charged on count 1, the third man was acquitted of that count.

The respondent to this appeal is Saaquib Chawdhury. He stood trial alongside two other men. The first defendant was a man named Walker-Scarlett and the third defendant a man called Kairone Lee-Sang. The prosecution application for leave to appeal against the decision to stay count 1 against Mr Chawdhury has been referred by the Registrar to the Full Court and we now deal with it.

The ruling of the judge came about after Mr Chawdhury was acquitted by the jury of count 2 on an indictment which alleged possession of a prohibited firearm with intent to endanger life. The jury could not agree on count 1, which alleged a conspiracy to cause grievous bodily harm arising out of the same facts. The jury was then discharged and the prosecution sought a retrial in relation to Mr Chawdhury on count 1. The judge, in a nutshell, decided that in view of the acquittal of count 1 and the similarity of the way in which the case was put against Mr Chawdhury on counts 2 and count 1, a retrial would be an abuse of the process of the court.

Mr Walker-Scarlett was in a different position because the jury convicted him of count 2. They could not agree in his case either about count 1. The position so far as retrying him is concerned remains undecided. The third defendant, Mr Lee-Sang, was acquitted of all three counts. It will not be necessary to say anything more about him.

This case therefore concerns the relationship between counts 1 and 2 on the indictment (see [8] below) and the specific facts of the case. There is no principle of law of any novelty involved in this appeal. It all turns on the way in which the prosecution put its case at trial and, in consequence of that, on the meaning of the jury's verdicts, specifically the consequences of their acquittal of Mr Chawdhury on count 2.

This was not a particularly complicated case. On 13 July 2021, at about 9 o'clock in the evening, some members of the public called the police saying that some shots had been fired in or around a Shell petrol garage in Whitehorse Road in Croydon. When the police arrived at those premises, everyone involved in that incident had left but there was significant CCTV footage which was recovered. This demonstrated what had happened at the petrol station forecourt. Further investigation later revealed that there had been some kind of incident involving Lee-Sang and Chawdhury in a road traffic collision. Afterwards they had parked their vehicle in this petrol station. The road traffic accident appears to have angered a Mr Jetro Lopes and another man. The CCTV showed, and the mobile phone records later confirmed, that while they were parked in the forecourt Chawdhury and Lee-Sang were using their phones. The phone records showed that the contact was with Walker-Scarlett. Jetro Lopes was present in the petrol station forecourt and engaging in conversation, to put it neutrally, with Mr Chawdhury and Lee-Sang and he was then joined by another man. After that phone contact, and the prosecution said because of it, Walker-Scarlett drove from his home towards the petrol station. He parked nearby but at a point where he could not be seen by those at the petrol station forecourt. He put on a mask and put up his hood and walked towards the garage. As he approached Mr Chawdhury and Mr Lee-Sang were seen to move away from their car and away from Mr Lopes and his colleague, their antagonists. The prosecution relied upon that movement as evidence that they knew what was about to happen and did not want to get in the way or be caught in the crossfire. Immediately he arrived at the pavement opposite the garage Mr Walker-Scarlett drew a gun from his man bag. He fired four shots towards Mr Lopes and the other man. He missed them. The bullets were real because two of them were found to have struck houses nearby. Walker-Scarlett and Chawdhury then ran away. The CCTV showed that as they did so, Walker-Scarlett gave Chawdhury the gun. They were subsequently arrested. Both gave no comment interviews. At trial both gave detailed evidence. In his directions to the jury the judge directed them that it was open to them, if they thought it right to do so, to draw adverse inferences from their failures to mention matters relied upon in their defence. Mr Walker-Scarlett in evidence admitted arriving with the gun and firing it. He said that he had not been asked to do this, it was his own sole responsibility. He said that he had deliberately aimed so that the men were not struck by his bullets and that he had no intention to harm anybody or to endanger anybody's life. Insofar as he may have done, he was in any event, he said, using reasonable force in defence of his friends whom he believed to be under potentially lethal attack and was therefore acting lawfully. His case included a number of assertions, as we have said, which the judge suggested might reasonably have been mentioned when he was interviewed. These included the assertion that Mr Chawdhury had telephoned him and asked him to come and collect him, sounding hysterical as he did so. He then said that Mr Chawdhury had repeatedly called him and told him, in a number of calls, how he was feeling threatened. He said that when Mr Lopes's associate arrived to join them at the forecourt, Chawdhury had phoned Walker-Scarlett, telling him that somebody else had arrived and asking him how long he would be. He had told the jury, but not the police in interview, that when he fired the shots he feared for his friends and wanted to get them away. This was, he said, the only reason why he had brought a loaded pistol. He denied giving Chawdhury the gun as they fled the scene.

Mr Chawdhury's case in evidence also contained a number of matters which he had not told the police about. He described being in a car when it was rammed on Whitehorse Road and thereafter being followed by another car to the petrol station. He described calling Mr Walker-Scarlett to ask him to help but the only help he was seeking was that Mr Walker-Scarlett would come and collect them to get them away. He said that he was frightened of Mr Lopes, who appeared to have a weapon, and said that he had nevertheless not asked Mr Walker-Scarlett to bring a weapon with him. He was simply seeking his assistance by picking him up.

This factual case resulted, as we have said, in an indictment which contained three counts. Given the issues that we have to resolve on this appeal, it will be sensible to set it out:

The substance of count 3 was the passing of the gun from Walker-Scarlett to Chawdhury after the shooting incident had finished. The jury convicted Mr Chawdhury of that. Counts 1 and 2 both related to conduct before that point including the shooting incident itself. The Opening Note which we have read sets out the indictment and summarises the evidence relied upon. It says nothing to explain how counts 1 and 2 relate to each other on the facts of this case. We understand that this note does not reflect how the case was actually opened to the jury but it is not suggested that they received any assistance about why counts 1 and 2 both appeared on this indictment and whether they stood or fell together, or whether some factual findings might lead to a conviction for one but not the other. The potential complexity posed to this trial by the presence of these two counts (counts 1 and 2) does not appear to have arisen for specific consideration during the trial itself. Accordingly it is not dealt with in terms in the summing-up or the Route to Verdict.

With that introduction we shall now turn to a preliminary point which we need to resolve, the outcome of which will determine whether or not we have jurisdiction to dispose of this appeal on the merits.

The trial took place between 7 April and 2 May 2025. The verdicts were returned on 2 May 2025. Mr Chawdhury was convicted, as we have said, by a majority of 10 to 1 on count 3. He was acquitted of count 2, and the jury was discharged from returning a verdict on count 1 because they were unable to reach a verdict. We have explained how matters transpired in relation to the other two defendants already.

Following those verdicts in the case of Mr Chawdhury the prosecution were allowed time to decide whether they wished to seek a retrial in his case on count 1. A week later, on 9 May 2025, they informed the court that they did seek a retrial. Counsel for Mr Chawdhury, Ms Arnot Drummond, who appeared for him at trial and who has appeared before us today, informed the judge that she would seek a stay of this proposed retrial as an abuse of the process of the court. Ultimately, that application resulted in a ruling by the judge on 13 June 2025 staying any retrial as an abuse and that is the ruling which we are asked to consider in this appeal.

The two preliminary points which may go to the jurisdiction of the court are as follows. First, it is submitted that the application to this Court was lodged with the Registrar out of time. It was served on her on 9 July 2025 - actually it was sent to the Court by email the previous evening but the following morning was deemed to be the point of receipt. It is said that more than five business days had elapsed by that date since the prosecution had given notice of its intention to appeal against the ruling and it was therefore out of time. Secondly, it is submitted that when they gave that notice the prosecution failed to give what is always described these days as the "acquittal undertaking".

In relation to the time issue Criminal Procedure Rules 38.3(2) requires the prosecution to serve an appeal notice on the Registrar no less than five business days after telling the judge of the decision to appeal in cases where expedition of the appeal is not ordered. There was no order for expedition in this case. Criminal Procedure Rules 36.3(a) allows the court to extend or shorten the time limit even after it has expired unless that is inconsistent with other legislation.

After the ruling was handed down on 13 June 2025, the prosecution correctly applied for an adjournment so that they could consider whether they wished to exercise their right of appeal. The judge granted a period of seven days for that purpose which expired on 30 June when the case was next fixed for hearing. On 27 June Ms Arnot Drummond requested that the hearing should be moved from 30 June to 2 July and the judge and the prosecution agreed with that. In his communication with the judge on 30 June 2025, Mr Michael Shaw, who appeared for the prosecution before the judge and has appeared for the prosecution before us, first sent an email agreeing to the move of the date and then sent a subsequent email at 19 minutes past 6 in the evening:

The submission on behalf of Mr Chawdhury is that the email sent by Mr Shaw on 30 June at 19 minutes past 6 in the evening was the time at which the prosecution informed the Court that it intended to appeal. Accordingly time for lodging the notice of appeal ran from then (30 June) and further, the email does not include the acquittal undertaking which was not therefore on that basis given at or about before the time when the prosecution informed the court of its intention to appeal. The prosecution submit that they gave notice of intention to appeal at the hearing on 2 July, and that service of the appeal notice on 9 July was within time. The issue on both submissions is therefore the same: when did the prosecution inform the Crown Court that it intended to appeal?

The provisions of section 58(4) and (8) of the Criminal Justice Act 2003 have been the subject of multiple decisions in this Court since they came into force 20 years or so ago. The position has evolved that strict compliance in relation to the acquittal undertaking required by section 58(8) of the Act is required so that if the acquittal undertaking is not given at or before the relevant time then any appeal must fail for want of jurisdiction. It is unnecessary for us, for the purposes of this case, to review that ever-lengthening series of cases any further. It is though appropriate to refer to one case R v BJF [2024] EWCA Crim 1670. In that case, prosecuting counsel informed the court of the prosecution's intention to appeal against a ruling by email. Prosecuting counsel did not in that email give the acquittal undertaking. Accordingly the Court held that the appeal was without jurisdiction.

In our judgment the principles are correctly and clearly set out in BJF derived from many other earlier decisions. The outcome in that case was dictated by counsel's choice of language in the email which was sent to the judge in that case. By the same token the outcome of the issues before us should be resolved by interpreting the language used by counsel in his email in this case, sent which we have set out above. In our judgment, it is perfectly plain that this email is intended as a matter of courtesy to alert the court and other parties to what the prosecution proposed to do at the hearing on the following Wednesday. They proposed to inform the court that they intended to appeal and they proposed to give, at or before they did so, the acquittal undertaking. To inform someone that one is intending to do something at a point in the future is not the same thing as doing it at the point when that information is given. It is clear, in our judgment, that the email sent in this case was not intended to be the information as to the Crown's intention to appeal, which is required by section 58(4) of the 2003 Act. That occurred the following Wednesday. When it occurred the acquittal undertaking was given and accordingly we have jurisdiction to deal with this appeal. It also follows that the appeal notice was within time.

We have set out most of the relevant material in setting the scene at the start of this judgment, but it is necessary to add certain further extracts from the judge's directions to the jury and the Route to Verdict in relation to counts 1 and 2 on the indictment so far as they concerned Mr Chawdhury. In his written directions at paragraph 20 the judge said this about count 1:

In relation to count 2, in the written directions at paragraph 39, the judge said this:

A Route to Verdict was prepared by the judge. We will only quote the parts which relate to the case against Chawdhury on counts 1 and 2. In relation to count 1, against Chawdhury, the judge posed these questions:

After they had gone into retirement and not very long before they returned such verdicts as they were ultimately able to agree, the jury sent a note. It said this:

The judge relied on the principles to be derived from two decisions which he considered in detail in the ruling. These were Connelly v DPP [1964] AC 1254 and R v Beedie [1998] QB 356. These are decisions in which the scope of the defence of autrefois aquit and autrefois convict are considered and the Court sets out principles to be applied in deciding when, in circumstances where those defences are not strictly available, a prosecution should nevertheless be stayed as an abuse if it offends against the principles on which those defences fundamentally rely. The judge considered that the acquittal of Mr Chawdhury on count 2 removed the factual basis on which the prosecution had invited the jury to convict on count 1. He held that in those circumstances, although the elements of the two offences are quite different and the mental element of the two different offences are different nevertheless, on the facts of this case, the two different offences were two different ways of putting the same allegation. In those circumstances the judge decided that in seeking a retrial on count 1 the prosecution were seeking to re-litigate issues on which they had already lost by reason of the jury's verdict on count 2. He held that that was an abuse of process and made the ruling that he did.

Mr Shaw and Ms Arnot Drummond essentially repeat before us the submissions which they advanced before the judge at the hearing which resulted in his ruling. The prosecution submits that count 1 and count 2 charged different offences. Each requires proof of a different mental element and the prosecution points out that it had not been argued at the trial that counts 1 and 2 stood or fell together and they note that the jury, or at least some of the members of the jury, appear to have appreciated the difference between the two counts because whereas there was a sufficient agreement to produce an acquittal in relation to count 2, there was no verdict in relation to count 1. Therefore at least two members of the jury must have felt that Mr Chawdhury was not guilty on count 2 but might be guilty on count 1.

The submissions on behalf of Mr Chawdhury are to the opposite effect and repeat the contention that, on the facts of this case at least, to seek a retrial on count 1 offends against the principles enunciated in Connelly and Beedie.

It seems to us that the presence of these two counts on the same indictment arising out of the same conduct, without a full explanation to the jury, was likely to lead to some difficulty; it appears that it has. We were informed that in February 2025 there was a hearing before the judge at which there was some discussion about the interrelationship of counts 1 and 2. That does not appear to have led to any clear exposition for the jury about that interrelationship. We have set out in full the relevant legal directions and Route to Verdict, which explain the different elements of the conspiracy offence in count 1 and the possession of a firearm with intent to endanger life in count 2. They do not however deal with the consequences of any findings that might be made in relation to one of those offences when it comes to making findings in relation to the other. It is therefore perhaps not surprising that there came a time when the jury felt that they needed some assistance in that regard. Their note was timed about half-an-hour before the verdicts were returned and it posed the question on the premise that a guilty verdict may be returned in relation to count 2 and the question: what was the significance of that for count 1? That was indeed the question which appears to have arisen in relation to Walker-Scarlett (who was convicted of count 2), and the jury may well have wanted to know what was the consequence of that for count 1 in his case. The obversequestion which arose in the case of Mr Chawdhury, namely what happens if Chawdhury is acquitted of count 2, was not canvassed in the note and was not canvassed by the judge in dealing with it. The judge answered the note by telling the jury that the different offences and different defendants had to be considered separately and referred them back to the legal directions that he had already given them. Those legal directions are entirely correct in terms of identifying the essential elements of the offences with which the jury were dealing. They do not however cover the problem which the jury must by then have been grappling with in relation to Mr Chawdhury. In his case they were soon to return a not guilty verdict in relation to count 2. That possibility was not canvassed or dealt with by the judge at that stage. Had he done so then, in our judgment, given the way that the case had been put he would inevitably have been required to direct the jury that, if they found that Mr Chawdhury was not guilty of count 2, they could not properly convict him of count 1.

In order to make that conclusion good, it is necessary only to look at the legal directions and the Route to Verdict in relation to count 2, which we have set out in full above. On the facts of this case, if the jury were not sure that Mr Chawdhury had done those things which are covered in the Route to Verdict for count 2, what was the foundation on which they could conceivably convict him of count 1? The answer is that there was none. Count 2 against him was not put on the basis of joint possession of this firearm, it was put on the basis that Mr Chawdhury had encouraged Walker-Scarlett to possess the firearm in the vicinity of the petrol station and to use it to threaten others thereby endangering their lives. If he had not done any of those things, what evidence was there that he was part of any conspiracy which would go further than that and result in grievous bodily harm being inflicted to the targets (Mr Lopes and the other unknown person)?

The two counts on this indictment with which we are concerned make logical sense if they are approached in the reverse order in which they appear on the indictment. If the jury which were first to consider count 2, they would decide whether they were sure that Mr Chawdhury had encouraged Mr Walker-Scarlett to behave as we have described with the necessary intent. If they were sure of that, they would convict of count 2 and they could then logically go on to consider whether in addition to proving count 2, the prosecution had proved the further element, namely a conspiracy to cause grievous bodily harm, not merely to threaten or endanger life but actually cause grievous bodily harm with the firearm.

If that is the logical explanation for the appearance of both counts on this indictment then it becomes even clearer that if the jury acquit of count 2, they do not get off first base when it comes to considering count 1. It follows that when the jury were asking for assistance as to the relationship between the two counts, it would with hindsight have been better if the judge had contemplated specifically the position of Mr Walker-Scarlett and Mr Chawdhury separately. It would have been better if he had specifically contemplated the consequences not only of conviction of count 2 but also of acquittal of count 2 and directed the jury appropriately. Had he done so, in our judgment, it is clear that he would have given the jury an answer to their question which would have resulted in a verdict of not guilty on count 1 because he would have directed them that such a verdict followed necessarily on the facts of this case from their conclusion on count 2.

This is therefore not, as the judge held, a strict autrefois aquit case because the two allegations in counts 2 and 1 have different elements and are different offences. It is however, in our judgment, sufficiently analogous to the situations which arose for consideration in Connelly and Beedie,so that the principles which can be derived from those decisions apply. In those circumstances, in our judgment, the judge was right to prevent the prosecution's attempt to try count 1 again. In short, they had tried Mr Chawdhury on count 1 and, by reason of the jury's verdict on count 2, had lost. The fact that did not result in verdicts accordingly perhaps arose because none of those involved appreciated the way that the jury was actually considering the case. We do not ascribe blame to anybody for that, but that, in our judgment, explains what has happened here. Notes of this kind have to be responded to quickly and we have had the benefit of long reflection which is denied to a trial judge.

For those reasons, we would grant the prosecution leave but dismiss their appeal. That means that by virtue of the acquittal undertaking I believe Mr Chawdhury is entitled to be acquitted.

MR SHAW: He is indeed, yes.

THE VICE-PRESIDENT: That is a difference because obviously the result of a stay is not an acquittal but the result of an unsuccessful challenge to a stay is an acquittal.

MR SHAW: It is. The matter is back before Judge Richards on 15 December. We will make progress from there with your Lordships’ guidance.

THE VICE-PRESIDENT: Indeed so. Thank you very much Mr Shaw.

There is nothing to be said now except that section 71 of the Criminal Justice Act 2003 placed a reporting restriction in relation to these proceedings. But these proceedings on count 1are now at an end in relation to Mr Chawdhury and therefore these proceedings can be reported, so far as he is concerned, but we need to have an eye to the fact that there may be a further trial in relation to Mr Walker-Scarlett.

MR SHAW: That remains a possibility. We will take stock of the position in respect of Mr Walker-Scarlett in light of your Lordships’ ruling now. I will take instructions from those who instruct me in due course and bring that decision for appeal to the Crown Court on the 15th.

THE VICE-PRESIDENT: Will you be ready to do that before Christmas?

MR SHAW: We will be ready before the 15th, yes.

THE VICE-PRESIDENT: That is what I thought. That will do nicely.

What we will do -- I will speak to my Lords -- what I think we will consider doing, subject to that discussion, is make an order postponing publication of this judgment in order to prevent prejudice to any retrial of Mr Walker-Scarlett but that order will only last until 15 December, when it should be further considered by the Crown Court. If there are no further proceedings in relation to Mr Walker-Scarlett concerning these proceedings then that order can lapse. If there are, then it should continue.

MR SHAW: My Lords, I am grateful. Thank you.

THE VICE-PRESIDENT: Is that clear enough?

MR SHAW: Crystal.

THE VICE-PRESIDENT: Thank you both very much indeed for your assistance.