R v Waqqas Amin Raja & Anor

On 19 January 2022 in the Central Criminal Court before His Honour Judge Leonard KC, the applicant Junaid Muhammad Idrak, then aged 26, pleaded guilty to one count of causing death by dangerous driving (count 1) and one count of causing serious injury by dangerous driving (count 3) in relation to a road traffic collision on 7 June 2019. The victims were Surrinder Gupta, aged 74, who was tragically killed and his wife, Raj Gupta who was seriously injured. The pleas were entered on a basis that was later abandoned.

On 6 November 2023 following a retrial in the Crown Court at Isleworth, before Her Honour Judge Barrie and a jury, the applicant Waqqas Amin Raja, then aged 30, was convicted on one count of causing death by dangerous driving (count 2) and one count of causing serious injury by dangerous driving (count 4) in relation to the same incident.

On 15 February 2024 both applicants were sentenced at Isleworth by Judge Barrie. Idrak was sentenced to nine years nine months’ imprisonment on count 1 and to a concurrent sentence of three years on count 3, so that his total sentence was nine years nine months. The judge disqualified him from driving for a total of 12 years and ordered that he pass an extended test. Raja was sentenced to nine years eight months' imprisonment on count 2 and to a concurrent sentence of four years on count 4, so that his total sentence was nine years eight months, from which 52 qualifying curfew days were deducted. He was disqualified from driving for a total of 12 years 10 months. The judge ordered that he pass an extended test.

Raja renews his application for leave to appeal against conviction and Idrak renews his application for leave to appeal against sentence, following refusals by the single judge.

We have had the benefit of able written and oral submissions from Mr Mendelle KC (who did not appear below) on behalf of Raja and from Miss Pasteris on behalf of Idrak. We are grateful to both counsel for the clarity of their arguments. We have considered written submissions from the prosecution in Raja's case. We have viewed the CCTV footage that was shown to the jury, which vividly shows the build-up to the fatal collision.

In the early hours of 7 June 2019 the victims were making their way home in their Lexus car, travelling westbound on the A4 over the Hammersmith flyover. Mr Gupta was driving and Mrs Gupta was in the front passenger seat. As the Lexus exited the flyover on the west side, in the middle lane of three, it was struck from behind by a green BMW travelling at speed, driven by Idrak. The BMW was registered as white but it had a green wrap. It bore a licence plate which was neither registered to that vehicle nor registered with the DVLA.

The collision caused the Lexus to travel across the nearside lane and collide with street furniture. Emergency services attended within minutes. Despite efforts to resuscitate him, Mr Gupta was pronounced dead soon afterwards. A post mortem confirmed that he died from severe crushing injuries to his chest. Mrs Gupta was taken to St. Mary's Hospital, Paddington, where she was treated for serious injuries, having sustained fractures to her spine and ribs.

Three vehicles were damaged: the Guptas' Lexus, Idrak's BMW and a Porsche that belonged to and had been driven by Raja. Aside from the victims, others at the scene included Raja and passengers from the vehicles. Raja was asked what happened. He said he was driving in the inside lane and that the Lexus was in the middle lane. He said that both cars were travelling at around 40 miles per hour. The BMW had been travelling faster, had lost control and had hit the Lexus which had then hit the Porsche.

Raja was arrested and interviewed by police on the same day. He stated that he had been driving home along the A4 when a group of high performance vehicles drew up alongside him. He was slightly over the speed limit on the flyover but was undercut by the green BMW which lost control, hit the central reservation and then hit the Lexus. He had moved into the nearside lane to avoid the collision but his vehicle had been struck by the Lexus. He denied racing at any point.

Idrak did not remain at the scene. He stripped the licence plates from his car and fled. He presented himself at Holborn Police Station on the following evening. He was interviewed and handed in a prepared statement in which he accepted being the driver of the green BMW. He said that he was on the flyover when he had suddenly lost control. He did not recall colliding with another vehicle and did not believe he was responsible for the loss of life.

The police investigation had several strands including forensic investigation of the crash site, the analysis of CCTV footage and taking statements from a number of people who had seen a group of high performance cars travelling at speed prior to the collision.

Against this background, we turn first to Raja's application which is limited to leave to appeal against conviction.

The prosecution case at Raja's trial was that the manner of his driving was dangerous taking into account the following factors:

It was the prosecution case that Raja's actions played a part in causing the collision that led to death and serious injury. It is accepted that on the prosecution version of the facts the jury could find that Raja's actions were a cause of the collision and so were a cause of death and serious injury.

In support of their case the prosecution relied on:

The jury heard evidence from accident investigation experts called on behalf of each party. In their joint statement the experts agreed that Raja had increased his Porsche's speed to follow or join the group of eight other high performance cars; that immediately before the collision his Porsche had been travelling at over 80 mph on a road subject to a 40 mph speed limit; that the Porsche was positioned in lane 1 of three lanes prior to the collision between the Lexus and the BMW; that in this position, and at the speed calculated, the Porsche would have been in a position to undertake the Lexus; and that the Lexus experienced several impacts – initially with the BMW, then with roadside furniture and possibly the Porsche.

The defence case was that Raja was not part of the original convoy. Idrak's BMW was being driven dangerously long before it encountered Raja's vehicle, and the collision arose solely from the actions of the BMW. Raja accepted that he was speeding, but denied that he was racing or driving competitively. He did not give evidence at trial and relied on his answers in interview.

The issues for the jury were whether Raja (a) drove dangerously and (b) caused the death of Mr Gupta and the serious injury to Mrs Gupta by driving dangerously.

The judge provided the jury with her legal directions in writing as part of a split summing-up. We commend the clarity and care with which she gave her written directions and then, in the second part of her summing-up, summarised orally the evidence for the jury.

We need to mention two aspects of her directions. The first aspect relates to how she directed the jury to treat Raja's answers to questions in his police interview. In her written legal directions she told the jury:

The judge returned to the theme of Raja's answers in interview when she summed up the evidence after counsels' speeches. Dealing with the defence case, she said as follows:

The judge then summarised what Raja had said in interview, in which he gave his version of events and denied racing. As part of the summary of the interview, the judge described what Raja had said that might suggest to the jury that he had interacted with the BMW on the flyover. She said:

In relation to the competing arguments about the effect of what Raja was saying in this part of the interview she gave a further direction as follows:

Having given this further direction, she went on to summarise the remainder of what Raja said in interview and to remind the jury of Raja's case as a whole. In doing so she reminded the jury:

These are the three directions on Raja's interview that are criticised on his behalf by Mr Mendelle. There is a second aspect of the judge's directions that we must mention. Although there were only two counts on Raja's trial indictment, the judge left, as an alternative to count 2, the offence of dangerous driving. In relation to that count, the judge directed the jury in her written legal directions that there were three possible verdicts, as follows:

“A.

'Guilty' (if you have found the defendant guilty of causing death by dangerous driving);

B.

Not guilty, but guilty of dangerous driving'; or

C.

'Not guilty' (which will mean that you have found the defendant not guilty of both causing death by dangerous driving and dangerous driving).”

The judge did not leave any alternative to count 4.

The jury began their deliberations on 2 November 2023 shortly before 1.00 pm. On the following day, at 12.21 pm on 3 November, the jury were called back into court. The judge said that she had received a note from the jury. The note was not disclosed to counsel but for the purposes of this application the Registrar has provided a copy to counsel and to us in a disclosable form. The note conveyed to the judge that the jury were unable to agree a verdict in relation to causing death by dangerous driving but were agreed that he was guilty of dangerous driving. The author of the note expressed the belief that the jury would not be able to reach a verdict on causing death.

In light of the note the judge told counsel that the time had come to give the majority direction which was duly given. The jury retired again.

At 2.10 pm the judge told counsel that she had received a further jury note, the detail of which she could not disclose but which indicated that the jury could not reach verdicts. The Registrar's summary of the disclosable elements of this note says:

The judge asked counsel whether the alternative offence of dangerous driving should be added to the indictment, presumably to assist the jury. There was a discussion about the law and procedure relating to adding a count to the indictment. Prosecution counsel indicated that he would need to take instructions. The jury were sent home for the weekend.

On the following Monday, which was 6 November 2023, prosecution counsel indicated that the prosecution were still considering whether to add an alternative count to the indictment. The jury were brought into court and the judge asked them to continue with their deliberations. She assured them that she was not ignoring their note sent before the weekend. The jury retired at 10.22 am.

At 11.30 am the jury sent a further note to the judge. The note was not disclosed to counsel. For reasons which are not clear to us it was not mentioned to counsel. The note stated:

We assume for present purposes that the judge saw this note and ought therefore to have informed counsel about it. We observe however that even if the judge had raised and discussed the note with counsel she would have been not only entitled but also advised to do no more than remind the jury of her direction about the standard of proof and provide them with a short form of words saying that the term "sure" needed no elucidation.

Events thereafter moved swiftly as the jury sent another note at 11.43 am. This note from the jury stated:

At 12.09 pm the judge informed the parties that there were verdicts. The jury were brought in and returned majority verdicts of 10 to 1 on both counts.

Mr Mendelle advances two grounds of appeal. Under Ground 1, he submits that the convictions were arguably unsafe because the judge erred in directing the jury that Raja's replies in interview were not evidence of the facts stated but only evidence of his reaction and attitude when questioned about the allegations, save that any admission could support the prosecution case. Mr Mendelle submits that given that the interview contained both admissions (that Raja was speeding) and denials (that he was racing), the judge ought to have treated the interview as a mixed statement which in part comprised admissions and in part contained exculpatory statements. As such, the jury ought to have been directed that they should treat the whole interview as evidence of the facts stated.

Mr Mendelle submits that by failing to give an accurate direction about a mixed statement, the judge had wrongly invited the jury to ignore Raja’s explanation unless it was an admission supporting the prosecution case. He contends that Raja's case at trial had been seriously undermined by the judge's error because his version of events was wholly contained in his interview as he did not give evidence. He submits that the judge directed the jury in a manner that damaged Raja's case by devaluing his explanation of events.

We accept that the judge made an error in her written legal directions. As accepted in the respondent's written submissions, the authorities establish that where a statement, typically an interview, contains both inculpatory and exculpatory remarks, the jury should be directed that the entire statement is evidence in the case, subject to the caveat that it has not been tested under oath: R v Greenhalgh [2014] EWCA Crim 2084. The judge's written legal directions did not take this approach. To this extent we agree with Mr Mendelle. We note that this error was not drawn to her attention by counsel.

We have set out above the two other occasions when the judge returned to the theme of Raja's answers in interview in the second part of her summing-up. On the first of those other occasions the judge told the jury that they should have regard to the interview when assessing the defence case. We agree with the respondent's written submissions that this was a clear direction that the jury should have regard to Raja's account in interview. This direction therefore moved away from the terms of the written legal direction. There is nothing arguably objectionable about what the judge said in this direction.

As for the final time that the judge dealt with the interview, we agree with the respondent's written submissions that the direction was in the nature of a standard direction on confessions and was plainly intended to ensure that the jury only treated Raja's own comments about interacting with the BMW as supportive of the prosecution case if it was proper to do so.

Mr Mendelle has today submitted that the judge's summing-up of the interview failed to remind the jury of the major plank of Raja's defence, namely that he had not interacted with the BMW in the way alleged by the prosecution but had moved lanes to get away from the BMW which was out of control. He submits that in the context of the retrial of a serious charge with complex expert evidence, the judge ought to have expressly reminded the jury of the passage in interview where Raja had said this.

The jury had the written transcript of interview with them in their deliberations. The judge was not obliged to summarise every aspect. She expressly described Raja moving lanes when he noticed the actions of the BMW which in context implies that he was moving away from the BMW. We regard the judge as having reminded the jury of the defence interpretation of events and summarised both the inculpatory and exculpatory parts of the interview so that the jury would have a balanced account.

Moreover, the only question for this court is whether Raja's conviction is arguably unsafe. Irrespective of the position at trial, there is no dispute before us about what was shown on the CCTV footage which shows the dangerous speed of Raja's vehicle when it joined the convoy, together with the dangerous manner of his driving. The CCTV footage is compelling evidence that Raja justled for position and competed with the other vehicles. By the time he was approaching Idrak's BMW, Raja was driving at over 80 mph on an Inner London flyover with a speed limit of 40 mph. It is unarguably the case that the CCTV evidence undermined both what Raja said in interview about his driving and, in the face of his silence at trial, what the defence asked the jury to infer from the prosecution evidence. We agree with the single judge that any misdirection by the judge in this regard was immaterial. Ground 1 is not arguable and is refused.

Under Ground 2, Mr Mendelle submits that the judge should not have allowed the jury to continue deliberating on 6 November 2023 while the prosecution was still deciding whether to add the alternative count of dangerous driving. He contends that there was a prospect that the prosecution could have resolved the matter of the alternative count which could or would have been added to the indictment. He submits that by allowing the jury to continue deliberating without waiting for the prosecution decision and without giving any further directions, the judge deprived Raja of the reasonable possibility of being acquitted of causing death and serious injury by dangerous driving.

Mr Mendelle submits that, had the prosecution agreed to add the count, the judge would have given the jury further directions about that count. Had the prosecution refused to add the count, the defence would have been able to make submissions to the judge that there should be further directions to the jury about the route to verdict for dangerous driving. Mr Mendelle submits that, either way, the judge's failure to give further directions renders the convictions arguably unsafe.

We disagree. The key question is whether the judge placed any pressure on the jury. In this regard we note that she told the jury when they returned to court on 6 January 2023 that she was not ignoring their note.

We agree with the Respondent's Notice that, by acknowledging that note and confirming that it was not being ignored, the judge ensured that the jury were not left with an impression of reproach or disapproval for the position previously indicated, nor was there an instruction or inference that a verdict must be reached. In our judgment there can be no suggestion that any juror was made to feel that he or she was obliged to express agreement with a view that they did not hold or that was not in accordance with their oath. There is nothing else to suggest, even arguably, that the verdicts were flawed or vitiated by any delay in responding to their note. This ground of appeal is not arguable and is refused.

In summary, Raja's convictions were not arguably unsafe. His renewed application for leave to appeal is refused.

We turn to Idrak's application for leave to appeal against sentence. We do not need to repeat the facts.

The judge sentenced both applicants at the same time but we focus on her sentencing remarks as they relate to Idrak.

In her sentencing remarks the judge observed that there was overwhelming evidence that the vehicles were racing one another. They were driving at grossly excessive speeds and carrying out highly dangerous manoeuvres, contravening red lights and undertaking at speed. This continued over a sustained period of time, using London's roads as a race track. The judge observed that Mr and Mrs Gupta found themselves innocently caught up in the middle as Idrak and Raja were trying to undertake and overtake at speed. It was plainly foreseeable that one of them would lose control with catastrophic consequences. The judge observed that the collision was wholly avoidable and caused solely by their senseless and selfish driving. The impact on the victims and their family was devastating.

The judge considered the relevant sentencing guidelines. She confirmed that a new sentencing guideline applied in relation to causing death by dangerous driving for anyone sentenced on or after 1 July 2023. She correctly stated that the court was obliged to follow the guideline in force at the time of sentence, not at the time of the offending.

Applying the relevant guideline the judge found in relation to count 1 that there were several factors indicative of higher culpability A and noted that there was no separate assessment of harm because the nature of the offence automatically involved cases of the utmost seriousness. The starting point on count 1 was 12 years and the range was eight to 18 years (or in this case 14 years which was the maximum sentence at the time of the offending). The judge said that Idrak was involved in a more prolonged, persistent and deliberate course of competitive and dangerous driving of high performance vehicles which started earlier that evening and which justified an upward adjustment of the starting point to 13 years.

As for count 3, the judge found that the offence against Mrs Gupta had a substantial and long term effect on her life. She concluded that, if this offence were being sentenced alone, it would fall within Category 1A or at the top of Category 2A. Category 1A has a starting point of four years with a range of three to five years. Category 2A has a starting point of three years with a range of two to four years.

The judge said that having regard to totality, count 1 would be the lead offence, with an uplift to reflect the serious injury to Mrs Gupta under count 3.

The judge considered that there were several aggravating factors. The injury to Mrs Gupta was very serious. Idrak had a passenger who had been exposed to highly dangerous driving. He had convictions for driving offences, He had been using false number plates and had therefore made the vehicle untraceable. These aggravating factors justified an upward adjustment to 14 years.

The judge weighed the fact that Idrak was young at the time of the offence (24 years old). However as there was no evidence that he was emotionally immature, the judge found that this was not a mitigating factor. The judge considered whether the significant delays merited a reduction in the sentence. She noted that Idrak had committed further driving offences within five months of the offences for which he was being sentenced. She stated that this was not indicative of remorse and demonstrated a pattern of reckless behaviour. Furthermore, after he was charged he had breached his bail and attempted to leave the country. Since being in custody he had been sentenced for possessing a prohibited item in prison. In light of all these factors, the judge found that although delay was a mitigating factor it warranted only a modest reduction.

On count 1 the judge concluded that the notional sentence for Idrak before plea was 13 years. He was entitled to 25 per cent credit for pleading guilty at the PTPH so that the sentence was nine years nine months, as we have said. She went on to impose a concurrent sentence of three years on count 3 and the other ancillary orders that we have mentioned.

Idrak had four previous convictions arising from two separate occasions. The first arose from this same incident on 7 June 2019, namely failing to stop at the scene of a road traffic accident and driving while uninsured, for which he received a suspended term of imprisonment on 30 January 2020. Other than that, on 11 November 2019 he was stopped in a BMW M4 and gave insurance details that he subsequently admitted were false, resulting in a conviction for fraud by false representation and using a vehicle whilst uninsured for which he received a suspended sentence on 14 February 2020.

There was no pre-sentence report.

Miss Pasteris submits that the judge should have made a substantial reduction to reflect the significant delay between the comparatively early guilty pleas and the sentence which was simply too long. She submits that Idrak had suffered prejudice from the delay, having regard to the substantial change in the sentencing guideline for causing death by dangerous driving that had occurred in that two-year period. She submits that by failing to make an adequate reduction, the sentence imposed was manifestly excessive or wrong in principle.

There is no traction in this argument. The judge's sentencing remarks are clear, detailed and compelling. We agree with them. The sentence of 13 years before the appropriate discount for the guilty plea was not arguably manifestly excessive nor arguably wrong in principle.

Idrak's speed reached at one time an average of between 87 and 99 mph. His brake lights were by then illuminated so that his speed would have at some stage been even higher. Before then he had engaged in sustained racing in a convoy that grew to nine cars. He showed a sustained disregard for the obvious dangers to others. He overtook, jostled and changed lane in a deliberate decision to ignore the rules of the road and the safety of others. This was very serious offending even of its kind.

Miss Pasteris referred us to various judgments of this court which, she submitted, left room for the argument in this case that the judge could and should have taken into account the old guideline or given delay more weight in general. The new guideline was however applicable and the judge was bound to apply it. She considered the effects of delay as a whole but concluded that there had been no significant detrimental effect on Idrak. She was entitled to reach that conclusion.

We observe that even if Idrak had been sentenced under the old guideline, a sentence close to the maximum sentence would have been warranted. The delay in bringing his case to court and in sentencing him made no difference. The severity of the sentence was caused not by a change in the guideline but by the seriousness of his offending. No arguable error of law or approach is to be found in the judge's sentencing remarks. This renewed application is refused.