R v Rafique ; R v Sajid ; R v Rajah

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeTHE LORD CHIEF JUSTICE,MR JUSTICE PILL
Judgment Date07 April 1993
Judgment citation (vLex)[1993] EWCA Crim J0407-9
Docket NumberNo. 91/1464/W3 No. 91/1466/W3
Date07 April 1993

[1993] EWCA Crim J0407-9

IN THE COURT OF APPEAL CRIMINAL DIVISION

Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Pill and Mr Justice Sedley

No. 91/1464/W3

No. 91/1465/W3

No. 91/1466/W3

Regina
and
Mohammed Sajid
Mohammed Zubair Rafique
Nasir Aolan Rajah

MR WARWICK McKINNON appeared on behalf of THE CROWN

MR JOHN PERRY QC and MR EDMOND ALEXANDER appeared on behalf of THE APPELLANTS

THE LORD CHIEF JUSTICE
1

On 19 February 1991 at the Central Criminal Court before His Honour Judge Smedley QC and a jury Mohammed Zubair Ahmed Rafique, Mohammed Sajid and Nasir Aslam Rajah were each convicted by a majority of ten to two of an offence of doing acts tending and intended to pervert the course of public justice (count 7). Each of them was conditionally discharged for three years. They appeal against conviction with leave of the single judge.

2

Rafique had also been charged with manslaughter (count 1) and all three Appellants were charged with having a loaded shotgun in a public place (count 2). Count 7 was added shortly before arraignment. Counts 3, 4 and 5, which alleged doing acts tending and intended to pervert the course of public justice and doing acts with intent to impede the apprehension of another, were then ordered to lie upon the file. At the close of the Prosecution case, the learned Judge upheld submissions that there was no case to answer upon counts 1 and 2 but rejected similar submissions on count 7, which had become count 3 in the amended indictment. The particulars of offence on count 3 are that the Defendants " on the 5th day of April 1990 with intent to pervert the course of public justice did a series of acts which had a tendency to pervert the course of public justice in that knowing that an investigation into the death of Mahboob Ahmed was in progress or imminent assisted in the concealment of a shotgun and cartridges from police officers responsible for investigating the said death."

3

In the early hours of 5 April 1990, the three Appellants and two other young men, Chaudry and Mahboob Ahmed, drove to a public park known as The Rookery in Streatham. Ahmed had recently acquired a double-barrelled shotgun and a box of cartridges and wished to test the gun. Chaudry and Rajah remained in the car while Ahmed, Rafique and Sajid climbed over railings to enter the park. Ahmed passed the gun through the railings to Rafique. Rafique walked ahead and was followed by the other two men. He turned to see if the others were following him and the gun discharged. Ahmed was struck in the chest and sustained injuries from which he died within minutes.

4

Rafique and Sajid ran back to the motor car in panic, taking the gun with them. All four men then left the scene in panic with Rafique driving the car.

5

Chaudry was taken home and the three Appellants then drove towards Thornton Heath. They stopped and Rafique "broke" the gun. Sajid removed the spent cartridge and a live cartridge and these were thrown from the car. They drove on and stopped near a small lake. Rajah threw the gun into the bushes. On the following morning, the Appellants abandoned the car and went by train to Birmingham where they laid low for twelve days. They then returned to London and gave themselves up to the police, having first consulted a solicitor. Unknown to them, the gun had been recovered by the police on the day it had been thrown into the bushes. When interviewed, each of the Appellants gave an accurate account of what had happened to the gun.

6

All three Appellants gave evidence. Rafique said that after he had shot Ahmed he could not believe what had happened. He was in shock and panicked. He could not stand the sight of the gun and cartridges. He said that he did not apply his mind to the fact that throwing them away would interfere with the course of justice or any investigation. He accepted that he knew that an investigation would occur when the body was found. Sajid said that he became hysterical when he saw blood flowing from Ahmed's mouth. He did not want to touch the gun, but took the cartridges out to make it safe. He threw them away but it was never his intention to avoid the police. He gave no thought to the police or any investigations. When later he realised that the police would be looking for them he decided to go into hiding because he was frightened and needed time on his own. Rajah said that he told the other men to stop the car and get the gun out. He took the gun and threw it. He just wanted to get it out of the car. He was not thinking about a police investigation. If he had been, he could easily have thrown the gun into the lake.

7

The jury rejected the Appellants' evidence as to their state of mind when the gun was thrown away and by their verdict, upon the directions given, found that the Appellants had intended to impede imminent police investigations.

8

On behalf of the Appellants, Mr John Perry QC first submits that the throwing away of the shotgun and cartridges, in close proximity to the commission of an alleged offence (ie manslaughter), before any investigation had begun, does not render the Appellants liable to conviction for an offence of perverting the course of public justice. On behalf of Sajid and Rajah, he questions whether the allegation is maintainable against them, having regard to the legislative intent expressed in the Criminal Law Act 1967, Sections 4 and 5. On behalf of Rafique he submits that his conduct is covered by the principle against self incrimination and in law did not constitute the offence charged. Mr Perry also submits that the learned Judge misdirected the jury in equating "police investigations" with "the course of justice". The offence charged is limited to protecting the "curial process", whereas the learned Judge proceeded on the basis that to impede police investigation (imminent or actual) is an offence. The conduct covered by the offence, it is submitted, is no wider than would be covered by the law of contempt of court.

9

Mr Perry referred to the uncertain boundaries of the offence of doing acts tending and intended to pervert the course of public justice. In submitting that acts performed before any investigation had begun were outside the ambit of the offence, Mr Perry relied upon the statement of Watkins LJ when giving the judgment of a Division of this Court in R -v Selvage and Morgan 1981 73 CAR 333. At page 341 Watkins LJ referred to R -v Vreones 1891 1 QB 360 and said that the case provided one of the vital tests of principles which helps to determine whether or not a charge of perverting the course of justice is properly laid. Watkins LJ stated:

"… this we take to be that a course of justice must have been embarked upon in the sense that proceedings of some kind are in being or are imminent or investigations which could or might bring proceedings about are in progress in order that the act complained about can be said to be one which has a tendency to pervert the course of justice."

10

In submitting that the boundaries of the offence should be narrowly defined, Mr Perry also relied upon Lord Dilhorne's approval in Withers and others -v DPP 1975 60 CAR 85 at page 91 of the approach to this question of Lord MacDermott CJ in ( Bailey 1956 NILR 15). Lord Dilhorne stated:

"… in this connection in my opinion the approach of Lord MacDermott in this case is both helpful and right. After saying that the facts in that case suggested that they might be brought within the category of acts prejudicial to the administration of public justice he said at page 25: '… but can they be brought within this category without creating an offence previously unknown to the law? As already indicated, we think that the appropriate criterion is not the existence of some authority exactly on all fours with the present case but whether the state of the law is such as to lead fairly and reasonably to the conclusion that what was done here fell within the ambit of this category.'"

11

In Vreones, the Defendant, by tampering with the subject matter of a contract for the purchase of wheat, intended to deceive any arbitrators who might be appointed under the contract. He was convicted of attempting to pervert the course of justice. Lord Coleridge CJ stated at page 366:

"The first count of the indictment in substance charges the Defendant with the misdemeanour of attempting, by the manufacture of false evidence, to mislead a judicial tribunal which might come into existence. If the act itself of the Defendant was completed, I cannot doubt that to manufacture false evidence for the purpose of misleading a judicial tribunal is a misdemeanour. Here, in point of fact, no tribunal was misled because the piece of evidence was not used; but I am of opinion that fact makes no difference; it was none the less a misdemeanour although the evidence was not used."

12

Pollock B stated, at page 369:

"The real offence here is the doing of some act which has a tendency and is intended to pervert the administration of public justice."

13

That statement of Pollock B has frequently been cited with approval, including by Watkins LJ in Selvage and Morgan. Further, to excuse an act by claiming that the truth is on your side is to confuse the course of justice with the result arrived at (Lord Alverstone CJ in Tibbitts and Windust 1902 1 KB 77 at page 88 [cited by Stephenson LJ in R -v Kellett 1975 61 CAR 240 at page 248]).

14

In R -v Machin 1980 71 CAR 166 Eveleigh LJ, when considering an offence such as the present one, stated that:

"… the law is concerned to forbid unlawful conduct which may result in a miscarriage of justice….. The gist of the offence is conduct which may lead and is intended to lead to...

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