R v Chenia (Shokat)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,LORD JUSTICE CLARKE |
| Judgment Date | 01 November 2002 |
| Neutral Citation | [2002] EWCA Crim 2345 |
| Docket Number | Cases No: 9902534Y2 and 9902639Y2,No: 99/2534/2640/Y2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 November 2002 |
[2002] EWCA Crim 2345
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NOTTINGHAM
His Honour Judge Machin
AND ON APPEAL FROM THE CROWN COURT AT LEICESTER
His Honour Judge Mayor QC
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Clarke
Mr Justice Pitchford and
His Honour Judge Fabyan Evans
Cases No: 9902534Y2 and 9902639Y2
Robin Spencer QC and Charles Benson (instructed by Attridges) for the Appellant
Patrick Upward QC and Andrew Wheeler (instructed by the Crown Prosecution Service)
for the Respondent
Introduction
1. This is the judgment of the court. There are before the court appeals by the same appellant, Shokat Chenia, against his convictions in two entirely different trials. The first trial ('the fraud trial'), which was a retrial, took place at the Crown Court at Nottingham before His Honour Judge Machin and a jury between about 30 October and 17 November 1998. The second trial ('the drugs trial') took place at the Crown Court at Leicester before His Honour Judge Mayor QC and a jury between about 23 February and 1 April 1999.
2. At the end of the fraud trial, on 17 November 1988, the appellant was convicted of two counts of conspiracy to defraud and one count of managing a company while being disqualified from doing so. On 4 December 1998 he was sentenced to 6/12; years imprisonment concurrent on each of the conspiracy counts and 18 months imprisonment consecutive on the disqualification count, making a total of 8 years in all. The judge also made a recommendation for deportation and disqualified him from managing a company for 10 years. There had been five co-accused, to whom we shall refer so far as necessary below, but only the appellant was tried at the retrial.
3. At the end of the drugs trial, on 1 April 1999, the appellant was convicted and sentenced as follows. He was convicted on six counts in the indictment. On count 3 he was convicted of conspiracy to supply heroin and sentenced to 12 years imprisonment consecutive to the sentences imposed after the fraud trial. All the other sentences were ordered to run concurrently with the sentence on count 3. He was convicted of one further count of conspiracy to supply a class A drug (count 4), this time cocaine, for which he received 12 years. He was convicted of three counts alleging conspiracy to supply class B drugs. On count 1 he was convicted of conspiracy to supply amphetamine and sentenced to 4 years imprisonment. Counts 8 and 10 each alleged conspiracy to supply cannabis resin. There were two counts because count 10 covered a particular transaction relating to about 89.3 kilograms. The appellant was sentenced to 8 years imprisonment on each of those counts. Finally, on count 5 he was convicted of possession of a further class A drug (MDMA) with intent to supply and was sentenced to 12 years imprisonment.
4. The appellant was thus sentenced to a total of 20 years imprisonment, 8 years as a result of the fraud trial and 12 years as a result of the drugs trial. After the fraud trial, the appellant did not seek leave to appeal in time against either his conviction or sentence, although he subsequently did so out of time. His applications were refused by the single judge, Klevan J. After the drugs trial the appellant also sought leave to appeal against his conviction and sentence. Those applications were also refused by Klevan J. However, all the applications were renewed to the full court and on 19 December 2000 the full court (Henry LJ, Douglas Brown J and His Honour Judge Stephens QC) granted leave to appeal against conviction in both cases.
5. Leave was granted to argue the grounds advanced in a skeleton argument dated 4 December which had been drafted by Mr Spencer and Mr Benson, neither of whom had represented the appellant at either trial. In addition, as we understand it, the court in effect adjourned an application to advance a further ground of appeal which had been prepared by the appellant himself, relating to covert surveillance. Mr Spencer now advances the grounds upon which leave was granted and seeks leave to advance the ground which was adjourned. The appeal thus involves a consideration of one ground arising out of the fraud trial and involves or potentially involves eight grounds arising out of the drugs trial.
6. The full court did not consider the renewed applications for leave to appeal against sentence, which must we think be treated as adjourned pending the determination of the appeals against conviction.
The fraud trial
7. The sole ground of appeal is that the judge misdirected the jury on the approach to the appellant's no comment interview and that, as a result, his convictions are unsafe. This involves a consideration of both sections 34 and 35 of the Criminal Justice and Public Order Act 1994 ("the Act") because, not only did the appellant give a no comment interview, but he also did not give evidence.
8. Sections 34 and 35 provide, so far as relevant, as follows:
"34. (1) Where, in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.
(2) Where this subsection applies—
(a) a magistrates' court inquiring into the offence as examining justices;
(b) a judge, in deciding whether to grant an application under –
(i) section 6 of the Criminal Justice Act 1987 (application of charge of serious fraud in respect of which notice of transfer has been given under section 4 of that Act; or
…
(c) the court, in determining whether there is a case to answer; and
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper.
…
35. (1) At the trial of any person who has attained the age of fourteen years for an offence, subsections (2) and (3) below apply unless -
(a) the accused's guilt is not in issue; or
(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;
but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence.
(2) Where the subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal without good cause, to answer any question.
(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.
(4) This section does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.
(5) For the purposes of this section a person who, having been sworn, refuse to answer any question shall be taken to do so without good cause unless-
(a) he is entitled to refuse to answer the question by virtue of any enactment, whenever passed or made, or on the ground of privilege; or
(b) the court in the exercise of its general discretion excuses him from answering it.
(6) Where the age of any person is material for the purposes of subsection (1) above, his age shall for those purposes be taken to be that which appears to the court to be his age.
(7) This section applies -
(a) in relation to proceedings on indictment for an offence, only if the person charged with the offence is arraigned on or after the commencement of this section;
(b) in relation to proceedings in a magistrates' court, only if the time when the court begins to receive evidence in the proceedings falls after the commencement of this section."
Section 38(3) of the Act provides
"A person shall not have the proceedings against him transferred to the Crown Court for trial, have a case to answer or be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in sections 34(2), 35(3) ….
9. Before considering the part of the summing up which is complained of it is appropriate to set out the facts. The prosecution case on count 1 was, put shortly, as follows.
i) During 1990, the appellant seized a business opportunity to enter into an agreement with a local farmer, Anthony Crane, to build a nine-hole golf course on part of the land of Kingstand Farm in or near Leicester. During the five years or so that followed the initial...
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Subject Index
...2416 ...............3 3R v Cartwright (1914) 10 Cr App R 219.... 298R v Case (1850) 4 Cox CC 220........................ 20R v Chenia [2002] EWCA Crim 2345 .......... 53R v Chief Constable of Yorkshire Police, ex p.Marper [2004] UKHL 39 ............................6 7R v Clark (Sally) [2003......
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Table of Cases
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