R v Sajid Qureshi
| Jurisdiction | England & Wales |
| Judgment Date | 23 July 2001 |
| Neutral Citation | [2001] EWCA Crim 1807 |
| Docket Number | No. 2000/06537/Y5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 23 July 2001 |
[2001] EWCA Crim 1807
The Vice-President of The Queen's Bench Division
(Lord Justice Kennedy)
Mr Justice Wright and
Mr Justice Leveson
No. 2000/06537/Y5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR G COLE appeared on behalf of THE APPLICANT
MR J F SHAW appeared on behalf of THE CROWN
MR M BOWES QC appeared as AMICUS CURIAE
Monday 23 July 2001
LORD JUSTICE KENNEDY: On 17 October 2000, in the Crown Court at Mold, by a majority of eleven to one, this applicant was convicted of arson, being reckless as to whether life was endangered, and of attempting to obtain property by deception. He was subsequently sentenced to four years' imprisonment on each count concurrent. He now seeks leave to appeal against conviction. His application has been referred by the Registrar to the full court.
The prosecution case was that in January 1999 the applicant purchased the 41-bedroom Plas-y-Coed Hotel at Colwyn Bay. Its value was £160,000 or thereabouts. He arranged insurance cover in the sum of £2.5 million. The applicant then, according to the Crown, persuaded a man named Algieri to set fire to the hotel, which he did on 20 February 1999. For that task, Algieri was promised a fee of £5,000. However, Algieri's wife contacted the police. On 23 April 1999, the applicant was arrested and interviewed. Three days later Algieri was arrested. On 4 May 1999, both men were charged. From the outset, Algieri said that he was acting on behalf of the applicant. However, the applicant made no admissions, and on 23 June 1999 he was told that he would not be prosecuted.
Proceedings continued against Algieri who was in very poor health. In September 1999 he pleaded guilty. On 11 October 1999, he made a nine-page witness statement as a result of which the Crown decided to resurrect proceedings against the applicant.
On 15 October 1999, Algieri was brought back before Judge Stephen Clarke sitting at Mold. The judge saw counsel in private as to Algieri's medical condition. It is a regrettable feature of this case that what then took place was not recorded. This court has said time and again that such proceedings should always be recorded.
On 3 December 1999, before the same judge, Algieri was sentenced to two years' imprisonment suspended for two years. It was an exceptionally lenient sentence but, as the judge made clear in his sentencing remarks, the evidence as to Algieri's health showed that he was unfit to withstand a prison sentence.
The case against the present applicant was then committed to the Crown Court for trial. On 9 October 2000, Mr Cole, on behalf of the applicant, submitted to Judge Kilfoil that because of what happened, or may have happened, in private on 15 October 1999 in relation to Algieri, it would be an abuse of process if the present applicant were to be tried, or at least he should only be tried without permitting Algieri to give evidence for the Crown. Judge Kilfoil rejected that submission. His rejection of it forms the first ground of appeal to this court. Assistance has now been obtained from counsel who appeared in the case of Algieri. In the light of what they have said, Mr Cole has sensibly come to the conclusion that his first ground of appeal has no realistic prospects of success.
We turn, therefore, to the second, and even more troubling, ground of appeal which concerns what has happened since the jury in the present case returned its verdict on 17 October 2000. On 20 October, a female who claimed to have been a member of the jury telephoned the applicant's solicitors. She was told to contact the partner concerned, who was not immediately available. He, rightly, advised her to contact the Crown Court. Having spoken on the telephone to a member of the court staff, she was asked to put what she had said in writing, and did so in a letter dated 23 October 2000. On 2 November 2000, the court manager wrote to the parties summarising the allegations made in the letter. The material part of that court manager's letter reads:
"(a) Despite the usher's warning not to make racist remarks, disparaging remarks were made throughout the trial by some members of the jury about the defendant's appearance, his accent, his poor English, his mannerisms, and his business integrity. It is alleged that the following remarks were made during the trial:
'I know his sort, they're all the same.'
'I have worked with them in Birmingham. I know what they're like.'
'The only reason he's got a clean record is because he's never been caught.'
'He would have been better off staying in India'.
(b) Some members of the jury appeared to have reached a decision at the outset of the trial and did not change their minds.
(c) During the trial, newspapers dealing with the trial were brought into the jury retiring room by jurors and shown around.
(d) At least three jurors had mobile phones and two of them used them to contact outsiders during the trial and to tell them about the progress of the trial.
(e) A juror fell asleep during the evidence.
(f) A juror was deaf and could not hear all the evidence.
(g) Other members of the jury adopted a bullying attitude."
Counsel for the appellant then drafted his second ground of appeal which reads:
"Since the trial, a juror contacted the appellant's solicitors and then the Crown Court expressing that inherent prejudice was exhibited by the jury, along with other matters that reveal the conviction to be unsafe and not one arrived at as a true verdict according to the evidence. In all the circumstances the conviction is unsafe."
On 22 March 2001, the case was listed before the full court, differently constituted, and instructions were given for a senior police officer to take a statement from the juror, avoiding any inquiry as to what took place when the jury was deliberating. The statement has now been taken. On 11 July 2001, the matter was brought back before us, with the juror concerned in attendance to give evidence if required. For present purposes, suffice it to say that her statement is consistent with, and amplifies, the concerns summarised in the letter of 2 November 2000.
On 11 July 2001, we were of the opinion that before the matter proceeded any further it was necessary to have regard to what was said by this court in R v Miah and Akhbar [1997] 2 Cr App R 12 as to the propriety after verdict of making any inquiries of jurors as to what was said by individual members of the jury, not only during deliberations (as to which there is specific provision in section 8 of the Contempt of Court Act 1981), but also at any time after the jury had been empanelled and before it had delivered its verdict. In Miah and Akhbar, the court considered not only the decision of the Court of appeal in R v Young [1995] 2 Cr App R 379 (the ouija board case), which turned on the provisions of section 8, but also the earlier common law authorities, including R v Ellis and Deheer [1922] 2 KB 113, and R v Thompson (1962) 46 Cr App R 72.
In R v Ellis and Deheer Bankes LJ said at page 117:
"…. I desire to make it clear that the Court will never admit evidence from jurymen of the discussion which they may have had between themselves when considering their verdict or of the reasons for their decision, whether the discussion took place in the jury room after retirement or in the jury box itself."
The last few words make it clear that the prohibition envisaged was not confined simply to the period of deliberations. Atkin LJ agreed and added at page 121:
"The reason why that evidence is not admitted is twofold, on the one hand it is in order to secure the finality of decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict. To my mind it is a principle which it is of the highest importance in the...
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