R v Aziz

JurisdictionEngland & Wales
JudgeLord Goff of Chieveley,Lord Jauncey of Tullichettle,Lord Browne-Wilkinson,Lord Mustill,Lord Steyn
Judgment Date15 June 1995
Judgment citation (vLex)[1995] UKHL J0615-2
Date15 June 1995
CourtHouse of Lords
Regina
and
Aziz
(Respondent)
Regina
and
Tosun
(Respondent)
Regina
and
Yorganci
(Respondents)
(Consolidated Appeals)

[1995] UKHL J0615-2

Lord Goff of Chieveley

Lord Jauncey of Tullichettle

Lord Browne-Wilkinson

Lord Mustill

Lord Steyn

HOUSE OF LORDS

(on Appeal from the Court of Appeal (Criminal Division))

1

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

Lord Goff of Chieveley

My Lords,

2

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Steyn. For the reasons which he gives I would dismiss the appeals and answer the certified question in the manner he proposes.

Lord Jauncey of Tullichettle

My Lords,

3

I have read the speech of my noble and learned friend Lord Steyn. For the reasons which he gives I would dismiss the appeals and answer the certified question in the manner he proposes.

Lord Browne-Wilkinson

My Lords,

4

I have read the speech of my noble and learned friend Lord Steyn. For the reasons which he gives I would dismiss the appeals and answer the certified question in the manner he proposes.

Lord Mustill

My Lords,

5

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn. For the reasons he gives, I, too, would dismiss the appeals and answer the certified question in the manner he proposes.

Lord Steyn

My Lords,

6

In this case counsel for the Crown called into question the correctness of principles laid down by your Lordships' House in R. v. Sharp [1988] 1 W.L.R. 7 regarding defendants' statements, which contain both admissions and exculpatory assertions, and he challenged principles enunciated by the Court of Appeal in R. v. Vye and Others [1993] 1 W.L.R. 471 regarding directions to be given by trial judges to juries in respect of evidence of good character of defendants. The thrust of the argument by the Crown was that the Court of Appeal wrongly quashed the convictions of the three respondents on the ground of inadequate directions by the trial judge as to the good character of the respondents.

7

(1)

8

The Customs and Excise launched an investigation into a fraudulent scheme, which was operated in the garment manufacturing industry in North and Northwest London during the period of 1986 to 1990. By the use of false invoices small companies and firms systematically cheated the Revenue. The total loss to the public was said to be some £12 million in income tax and £2 million in value added tax. Several trials followed. The present case is concerned with one trial which involved 20 men. The prosecution offered no evidence against two men. They were discharged. Seven pleaded guilty to various offences. The trial proceeded against 11 men. The trial lasted five months. The jury returned their verdicts in March 1993. By their verdicts the jury acquitted five defendants. Six defendants, including the respondents, were convicted. The jury convicted Kazim Aziz ("Aziz") of conspiracy to cheat the Revenue. The judge sentenced him to 3 years imprisonment, imposed a fine of £20,000 and disqualified him as a director for five years. The jury convicted Metin Yorganci ("Yorganci") on two counts of conduct involving the commission of one or more offences under section 39(1) and 39(2) of the Value Added Tax Act 1983 contrary to section 39(3) of that Act. The judge sentenced him to a total of two years imprisonment and disqualified him as a director for five years. The jury convicted Ali Yener Tosun ("Tosun") on one count similar to that on which Yorganci was convicted. The judge sentenced Tosun to two years imprisonment and disqualified him as a director for five years.

9

The prosecution case depended on thousands of false invoices from some 50 companies, most of which were either non-existent or not trading. By and large this evidence was not disputed so far as it related to the three respondents. Aziz admitted that he, his brother and his girlfriend wrote out many false invoices but he said that he did not know that the invoices were false. Aziz did not give evidence but relied on his exculpatory statements in the course of interviews conducted by officers of the Customs and Excise. In the same interviews Aziz made significant admissions. Aziz relied on his absence of relevant previous convictions. By cross-examination counsel for Aziz sought to show that a co-defendant, Gultekin Mustafa Ben ("Ben"), misled Aziz about the nature of the invoices. Yorganci gave oral evidence. He denied that he knowingly created or supplied false invoices. He relied on the fact that he had no previous convictions. He accepted that he had knowingly made a false mortgage application and that he had lied to Customs officers during interview. Tosun also gave oral evidence. He denied that he had knowingly used false invoices. He testified that he had no previous convictions. He conceded, however, that he had not declared his full earnings for Inland Revenue purposes, and that he had allowed employees to declare substantially less income than they were in fact earning. He also accepted that he had submitted a mortgage application form which falsely stated his income, but he said that he was unaware of this and blamed his accountant.

10

(2)

11

Given that the focus of the appeal is on the judge's directions to the jury about good character, it is only necessary to refer to that part of his summing up. The judge said:

"Now about character. Good character: this means that a defendant has never been before the courts before and has never had his integrity and his honesty impugned. This is relevant primarily in regard to his credibility when giving evidence before you, whether you believe him or not. This applies to the defendants … Yorganci and Tosun.

What about a defendant who has not given evidence: you may take good character into account as part of the evidence as a whole as being relevant whether it is likely that a person with such a character would have committed the offence. … Kazim Aziz has two minor offences which took place a very long time ago and which did not involve dishonesty: I expect you would like to put those aside and treat him effectively as a person of good character."

12

On the supposition that Aziz, Yorganci and Tosun were entitled to be treated as persons of good character - that being the view of the trial judge - the directions given failed to comply with the principles laid down in the then recently decided case of Vye. Although there were 16 counsel in court, the judge's attention was not drawn to this aspect. Admittedly Vye had not yet been reported in any official law report. But a detailed report of the decision had appeared in The Times a month before the summing up.

13

(3)

14

With the leave of the single judge the three appellants appealed against their convictions. The first ground of appeal argued in the Court of Appeal is no longer material. The second ground of appeal, which was advanced in the Court of Appeal on behalf of all three respondents, related to the judge's directions about good character. Giving the judgment of the court Glidewell L.J. explained what he meant by "good character":

"All three of these appellants until their conviction on these charges were of good character in the sense in which that phrase is commonly used in the criminal courts; that is to say they have never previously been convicted of any criminal offence, or at least of any criminal offence of any relevance or significance. The qualification is necessary because Mr. Aziz has two previous convictions but the judge properly considered they were irrelevant."

15

Glidewell L.J. referred to the summary of the applicable principles given by the Lord Chief Justice in Vye. The two relevant principles were stated in Vye as follows [1993] 1 W.L.R. 471, 479:

"(1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements.

(2) A direction as to the relevance of his good character to the likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements."

16

It will be convenient to describe these principles as the credibility and propensity directions. Applying these principles Glidewell L.J. held that prima facie the judge's directions were inadequate because:

  • (a) in the case of Aziz the judge only gave a propensity direction:

  • (b) in the cases of Yorganci and Tosun the judge gave only credibility directions.

17

Then Glidewell L.J. addressed a particular argument that Aziz was not entitled to any good character direction because he did not testify and mounted a cut-throat defence against Ben. He also addressed specific argument that Yorganci and Tosun were not entitled to any good character direction because of their admitted misconduct. Glidewell L.J. rejected these submissions and held that the principles in Vye applied. He added:

"If there are reasons, as there may well have been in relation to each one of these appellants, why the jury might give less weight to good character than they would otherwise have done, that can be dealt with by a qualification carefully expressed by the judge when he comes to deal with the particular individual appellant and his evidence.

We therefore conclude that in relation to each of these appellants there has been a misdirection."

18

The question arose whether the proviso should be applied. There was strong evidence against each appellant. With "hesitation, indeed with reluctance", the Court of Appeal decided that it would not be right to apply the proviso. In the result the Court of Appeal quashed the convictions of the three respondents.

19

Counsel for the Crown asked the Court of Appeal to certify that a point of law of general public importance was involved in the decision to allow the appeal in all...

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11 books & journal articles
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    • Sage International Journal of Evidence & Proof, The No. 8-4, December 2004
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