R v Mirza; R v Connor and Rollock
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT,MR JUSTICE HUNT |
| Judgment Date | 13 May 2002 |
| Neutral Citation | [2002] EWCA Crim 1235 |
| Docket Number | No: 200101355/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 13 May 2002 |
[2002] EWCA Crim 1235
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Vice President
(Lord Justice Rose)
Mr Justice Hunt and
Mr Justice Keith
No: 200101355/X3
MR E FITZGERAL QC & MISS W FISHER-GORDON appeared on behalf of the APPELLANT
MR P RUEFF appeared on behalf of the CROWN
On 20th February 2001, on a retrial before His Honour Judge Pitman at Snaresbrook Crown Court, this appellant was convicted, by a majority of 10:2, on six counts of indecent assault. On 21st May the trial judge exercised his powers under section 85 of the Powers of Courts (Sentencing) Act 2000 and passed a sentence consisting of a custodial term of 4 years' imprisonment concurrently on each of the first five counts in the indictment and 3 years on count 6. He ordered an extended period of licence of 4 years. He appeals against conviction by leave of the Single Judge.
The conviction appeal is based primarily on an undated letter, now known, because of an enquiry made at the direction of the Court, to have been written by a juror to the appellant's counsel, after conviction. The matter came to the attention of the trial judge on 2nd May 2001, before sentence was passed.
It is unnecessary, for the purposes of this judgment, to rehearse the detail of the evidence which was before the jury. It suffices to say that the complainant, a girl aged 17 at the date of trial, made allegations of sexual abuse against the appellant over a period of years, starting from the time when she was about 6 years old and continuing until the time when she was about 15 or 16.
The appellant's case was that he had never been alone with the complainant and had never behaved indecently towards her. It was suggested that the complaints were the product of suggestions made by the complainant's mother and were entirely false.
The only other feature to which reference needs to be made, so far as matters before the jury were concerned, is that the appellant came to this country from Pakistan in 1988.
During the course of the trial two notes were sent by the jury. The first, which came at a stage prior to the opening of the defence, asked: "How old is the defendant? What was his job at the restaurant? When did he come to the United Kingdom?" The second note came after the appellant had given evidence and told the jury that he came to the United Kingdom in 1988 from Pakistan, that he spoke Urdu and that he could understand some English. The second note posed this: "Question for the interpreter. In your experience as a court interpreter, would it be typical of a man of the defendant's background to require your services, despite living in this country as long as he has? How long have you held the position of court interpreter?"
By reason of those notes having been received there was an admission made by the prosecution and the defence in the following terms:
"It is usual for persons who are not fluent in English to require the services of an interpreter in police investigations and court proceedings, which are complex, serious and involve complicated legal terms. This is a safeguard and in the interests of justice, and of all persons before the courts, including the jury. All such persons are assisted by this. The courts may see many people, who have lived here for many years who cannot speak English at all."
Thereafter, the final speeches to the jury by counsel addressed the issue of the interpreter. Prosecuting counsel told the jury to make full allowance for the appellant's difficulties, and defence counsel warned the jury of the possibility of prejudice and advised against prejudice operating. The judge, furthermore, in the course of his summing-up, dealt with this aspect of the case in these terms, as appears from the transcript of the summing-up, starting at page 9-G:
"I will mention the rule also about the language difficulty. The defendant, as you have observed, has had an interpreter; and the defendant as you have observed, can understand some words in English. There was the odd occasion where he answered a question, as it were, by-passing the interpreter. Think of it, perhaps, this way. Some of you may have friends or relations who, for example, go off to Spain, spend a few months there, retire there. They get quite good at saying muchos gracias, ordering tapas and chatting in the local shop�they can speak a bit of Spanish; they can understand some questions. But if they suddenly found themselves in court, charged with a motoring accident that killed a lot of people, and matters suddenly got very grim, and they were tried in a Spanish court in Spanish, what would you think if your friend or relation was denied an interpreter on the basis, well, they can understand a bit of Spanish; why should they have an interpreter? Look at it that way; and this was the sort of case where you are entitled to understand not only most or some of what is said in your trial, but every single word. So that in those circumstances you should draw no adverse inferences from the defendant exercising his right to have an interpreter."
The final and very much subsidiary point made by Mr Fitzgerald QC, who did not appear in the court below, on behalf of the appellant, in the course of his written and oral submissions to this Court, is that the jury's notes, to which we have referred, were such as to demonstrate, on the jury's behalf, a preoccupation with the question of whether or not the defendant required an interpreter, such as to demonstrate that the verdicts which they reached, on the evidence before them, should properly be regarded as unsafe.
That is not a submission which we accept. In our judgment, the learned judge dealt with the matter, both in relation to the admission, which we have rehearsed, and in the paragraph in his summing-up which we have recited, in an entirely appropriate manner. In consequence, if the notes of the jurors stood alone, there could be no basis for regarding this appellant's conviction as unsafe.
The primary thrust of Mr Fitzgerald's submission, however, relates to the letter written by the juror. In relation to his subsidiary point, Mr Fitzgerald accepted, with the frankness which one expects of him, that he was really seeking�as he put it�to smuggle in the letter by way of reinforcement of the freestanding complaint about the jury note. The letter which the juror wrote, which was received by the appellant's counsel on 26th February, 5 days after the conviction is in terms which are summarised by Mr Fitzgerald, in his written submissions, in the following way. From the beginning of the trial, there was a theory, among some of the jury, that the use of an interpreter was in some way a devious ploy. The writer of the letter was not able to convince anyone that she knew from her experience that there was nothing suspicious about the use of an interpreter. The writer of the letter claimed to be the only juror with any insight into the defendant's culture which others on the jury regarded with undue suspicion. The question of the interpreter was raised early during the jury's deliberations and the letter writer claimed that she was shouted down when she objected to this and sought to remind the other members of the jury that there was an admission to the effect that the interpreter was not a matter which should count adversely against the defendant.
The submission is made that, if the writer of the letter is correct, there was a specific refusal by other jurors to accept the judge's direction in the summing-up and the terms of the admission. The letter further indicated that the terms of defence counsel's warnings to the jury, in her final speech, about prejudice, were regarded by some members of the jury as "playing the race card". There is further reference in the letter to what was said, by the writer of the letter, to be the decision of bigots on the jury, on the basis of the defendant being guilty because he had pretended to need an interpreter that this was a pretence being enforced because the defendant, in the course of police interview, declined the offer of a police interpreter to explain the video which he was shown of the complainant's evidence.
The submission which is made by Mr Fitzgerald, is that the letter demonstrated that the jury disregarded the judge's instructions and the admission made by the prosecution and defence. It showed undue influence on the jury of their irrelevant belief that the appellant did not need an interpreter; that they had reached a verdict not solely on the basis of the evidence but because of suspicions about the appellant's real need for an interpreter; and that, in consequence, they were influenced by prejudice, involving racial elements, against the defendant.
In the course of his oral submissions to this Court, Mr Fitzgerald said that the primary complaint was not racism in itself but that the jury's preoccupation with the defendant not needing an interpreter gave rise to bias, in that the jury were influenced, in reaching their verdict, by an irrelevant consideration, in the light of the test laid down by Lord Goff in R v Gough [1993] AC 644 and in the light of the observations of the European Court of Human Rights in Remli v France 22 EHRR 253, at paragraphs 46�48 and in Sander v The United Kingdom 31 EHRR 1003, at paragraphs 27 and 35, that is to say, submitted Mr Fitzgerald, there existed objectively justified and legitimate doubts as to the impartiality of the jury on the evidence. Unless evidence were adduced to rebut these doubts, there must be a breach of Article 6 of the ...
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