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Naz, R v. [2000] EWCA Crim 24 (23rd March, 2000)
Case No: 199903731 X3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
THE HON. MR JUSTICE TUCKER
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 23 March 2000
B e f o r e :
LORD JUSTICE MANCE
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE SACHS
--------------------------------
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
--------------------------------
Mr. Philip Shears Q.C appeared for the Appellant
Mr James Hunt Q.C. (Mr A Bojarski) appeared for the Crown
--------------------------------
Judgment
As Approved by the Court
Crown Copyright ©
1. The appellant, Shakeela Naz, appeals with leave of the single judge against
her conviction on 25th May 1999 at the Crown Court at Nottingham
before Tucker J. for murder of her 19 year old daughter, Rukhsana Naz (born
13th April 1978), in Rukhsana's home at 140 Clarence Road,
Normanton, Derby on 26th March 1998. The appellant's co-accused were
her sons, Shazad Naz, aged 21 at the time of the murder, and Iftikhar Naz, aged
nearly 18. Iftikhar was acquitted. Shazad was convicted of murder. He had
admitted holding what he said was a piece of electrical wire, with which
Rukhsana was strangled, around her neck for some 3 or 4 minutes. The issue in
his case was simply whether he was guilty of murder or manslaughter. To
establish the former the Crown had to prove that he intended to kill or cause
GBH to her and to negative provocation. The jury's verdict shows that the Crown
did this.
2. The issue in the case of the present appellant was quite different. The
Crown case was that she was a willing participant in the murder, amongst other
things holding Rukhsana's legs while she was being strangled and making
effective admissions immediately after Rukhsana's death. Her case at trial was
that, although present when the strangling was committed, she knew nothing
about it until Shazad committed it and that, when and while it happened, she
was attempting to restrain Shazad. The jury evidently disbelieved her on this.
As regards Iftikhar, the Crown case (based on an alleged admission to his
girl-friend, Louise Wan) was that he assisted his brother pull on the ligature
strangling Rukhsana. His evidence was that he had been upstairs, knew nothing
of any plan to murder Rukhsana and only came downstairs as it ended, when he
saw Shazad holding a cord around Rukhsana's neck and the appellant holding her
legs. He was, as stated, acquitted.
3. Rukhsana had from school days had a long-standing friendship and at least in
recent years relationship with another 19 year old, Imran Najid. Both their
families were opposed to the relationship. On a holiday in Spring 1994 in
Pakistan Rukhsana had met and liked a second cousin, Sajid Nawaz, with whom a
marriage was then arranged, but who remained in Pakistan after Rukhsana's
return to England later in 1994 and at all times thereafter. Their first child
was born after her return to England. A second child was born following a
second visit to see Sajid in Pakistan in 1996. Imran Najid also married another
girl in or about 1997. In late 1995, however, Rukhsana became pregnant by
Imran. By 26th March 1996 she was some 28 weeks pregnant. About a
month previously she had bought the house at No. 140 Clarence Road, into which
she had moved with her sister, Safina, and Safina's husband, and she was
planning to give birth to Imran's child and to live with Imran. The Crown case
was that she was killed because of the perceived shame or disgrace which her
pregnancy involved for her family. The Crown also suggested that the appellant
had been insisting on 23rd March 1998 that Rukhsana finalise a will.
Rukhsana had on 26th March 1998 been with solicitors and a will had
been drafted, though not executed, leaving her property to her two children in
equal shares and making the appellant their guardian in the event of her death.
The evidence of Safina established however that the will had been under
discussion since November 1999 and that the appellant had initially been
against it.
4. The 26th March 1998 was a Thursday, a day of the week on which
the family custom was to meet for a family meal at No. 80 Clarence Road,
Normanton, Derby, where this appellant lived with some other family members. By
about 6.30 p.m. all the family was present, including Rukhsana's two children,
but not Rukhsana who had telephoned to say that she was not feeling well.
According to Rukhsana's sister, Safina, the appellant was instrumental in
telling Rukhsana not to come partly because she was ill and partly because her
pregnancy was showing - Iftikhar did not yet know of the pregnancy and the
appellant did not want him to find out. Then, again according to Safina, at or
shortly after 7.00 p.m., the appellant suddenly announced that she had to see
someone in hospital, and, after asking Iftikhar for a lift, left the house with
him and with Shazad. Safina next saw her mother at 8.05 p.m. and her two
brothers only at about 11.10 p.m. The appellant and her two sons had in fact
gone, whether or not all at the same time, to Rukhsana's house, where the
murder had taken place. The two sons had then taken Rukhsana's body in a pillow
case by car to a field some 70 miles away where they left it, before returning
to Derby. At about 10.30 p.m. Safina and her husband had returned to No. 140
and, finding no sign of Rukhsana, telephoned the appellant. According to
Safina, her mother's reaction was not as she would have expected. She simply
told Safina that she was not to worry and to "Go to sleep" and that Rakhsana
might come back next morning. Safina did in fact report Rukhsana as missing,
but withdrew this report after being told by Iftikhar that it would bring shame
on the family. Rukhsana's body was only found by a farmer on 31st
March 1998, after which extensive police investigations began. By then Shazad
had left England and he remained abroad until 24th June 1998.
5. The contents of the various statements taken and interviews held by the
police feature prominently in the appellant's grounds of appeal, and we
therefore deal with them in some detail. Their particular significance lies in
the statements which were made or recorded as made in them by one defendant
adverse to another defendant, in this context the appellant.
6. On 3rd April 1998 the police saw and took witness statements from
Iftikhar and the appellant. On 4th April 1998 Iftikhar said threats
had been made to Rukhsana by Imran's father and gave details of an alibi with
his girlfriend, Miss Wan. On 5th April 1998 he said that Shazad had
dropped him at Miss Wan's house on 26th April at about 7.15 p.m., and that he
had the impression that Rukhsana's draft will, which he had seen, had been made
with suicide in mind. Initially, Louise Wan supported Iftikhar's alibi, giving
a witness statement accordingly. On 10th April 1998 Iftikhar was
arrested and between then and 14th April he, and between
12th and 15th April, this appellant were interviewed
extensively by the police. Initially, he maintained his alibi with Louise Wan
and said that he had first heard that Rukhsana was pregnant on 27th
March 1998. Eventually, on 12th April 1998 after being told that
Louise Wan had withdrawn her support for his alibi and had admitted lying about
it to the police, he changed his account, and gave a revised account which in
many respects implicated both Shazad and the appellant. Amongst other things,
he made references to a plan about which he said he had been told. For example,
he said that, en route back to Derby in the car after disposing of the body,
Shazad had told him that it had been the appellant's intention to "tell the
lads", but that they had not in fact told Iftikhar, because they knew that he
would not approve of what they had just planned (transcript p.100-1). He said
that he believed that he had told Louise Wan that Shazad had done it and that
the appellant knew about it and that he believed it had been planned (pp.107
and 109). He said that he thought that he now believed that spades which had
been purchased by Shazad and an uncle in Derby earlier in the week beginning
23rd March 1998 had been bought as part of a plan to kill and bury
Rukhsana (p.113).
7. As to events on 26th March 1998 he said that he had gone with his
mother and Shazad to Rukhsana's house, that Shazad had parked in a side road,
which he had thought strange, that, when they went into Rukhsana's house, the
appellant had asked Rukhsana whether she was going to have an abortion, that
either the appellant or Razad had indicated that, despite the lateness, she
still had a chance to have one with a doctor in Birmingham, and that at some
point Rukhsana had said that she was not going to Birmingham; he said that he
had gone upstairs to the toilet, heard argument and Rukhsana telling the others
to leave and, when he came downstairs, he had seen Rukhsana face down and not
struggling, Razad with a rope or wire around his hands and the appellant
holding Rukhsana's legs; the appellant had said to "Be strong, son"; Razad
carried on and the appellant then said that (or - as a later passage in
Iftikhar's interview suggested - asked whether) Rukhsana was dead, whereupon
Razad unwound the rope or wire and threw it on the ground; later, his mother
came up to him and again told him to be strong, that it would be all right and
that it was wrong but had to happen; on 27th April the appellant
said that they had been "robbed" because Safina had reported Rukhsana to the
police as missing.
8. In his evidence at trial Iftikhar's account was in some respects different.
He said that his mother had asked to be taken to the hospital at about 6.00
p.m. on 26th March and had left, he did not know where. A telephone
call had been made to Rukhsana, who said that the appellant was not there. He
had later driven with Shazad to Rukhsana's house, although Shazad parked in a
side road and he had asked him why. At some point, perhaps as they were in the
car, Rukhsana telephoned to say the appellant was at her house. The appellant
opened Rukhsana's front door, the appellant asked Rukhsana in a normal manner
whether she was going to keep the child and then said: "I think she's giving
birth to the bastard". He saw that Rukhsana was obviously pregnant, and said"
It's a good job I haven't been talking to you, you are fucked up or you have
messed up". He then just wanted to go upstairs and to the toilet, so he went,
leaving his mother seated and his brother showing no emotions. He was out of
the room 3 to 7 minutes. He heard escalating voices and on coming downstairs
saw a scene which he described as follows:
"I saw my sister on the floor in front of me. I froze in shock. I saw in the
corner of my eye my mother to my right. My brother was on the left. My mother
was by her feet, she was down on her knees type of thing. I believe she may
have had her hands on her feet. As for my brother, I believe I saw him by
Rukhsana's head kneeling down. I believe I saw a flex or cord of some sort, it
was dangling from his hands, it was sort of near her head, I thought her head.
I can't be exact but I think personally he may have been probably just
strangled her or something."
9. He went on to say that the picture lasted seconds, not long, in silence.
Then the appellant was very upset, saying "Why has this happened?" and giving
words of comfort "Be strong". She said "It has to happen" and Shazad said "It
had to be done". He believed that the appellant had then said: "If she had
listened, it wouldn't have come to this desperate situation". Rukhsana appeared
dead, with her tongue sticking out. Shazad and the appellant kept on telling
him "Be strong". Shazad came and threw a trunk in the corner. The appellant was
comforting Shazad. Shazad started to put Rukhsana in the trunk. Iftikhar did
nothing. Shazad got out a flick knife, hit him and said he would kill him, if
he did not help. He had been very scared and so had helped put the body in a
bag and dispose of it. The next day he had spoken to Louise Wan for two hours,
in an emotional state, blaming himself and had made up the alibi involving her.
In cross-examination the Crown suggested that his account in the witness box
was also lying, and that he had been present throughout the murder and had
assisted in it. He said that "I told the police what happened" and that in
general terms what he told them was correct.
10. The appellant made four statements to the police. She described learning
that Rukhsana was pregnant some weeks before 26th March 1998. She
said that Rukhsana said that she intended to have the child and asked the
appellant to take her two children by her husband to Pakistan. She said she had
thought that she would do this for six weeks or longer. She said that on
26th March 1998 someone had told her that Rukhsana was coming round
to her house for the customary evening dinner, but that at about 7.45 p.m. she
herself had gone out to a friend Fakara's house, returning home at 8.15 p.m. to
discover that her two sons had gone out. She said that Rukhsana had telephoned
at about midnight or later about Rukhsana, but she had suspected that Rukhsana
had gone off with Imran.
11. In her interviews the appellant originally maintained her account that she
had gone out on the evening of 26th March to see her friend, Fakara,
and had then returned to her own home. She denied that she had seen Rukhsana
since she had left her house earlier that day, after visiting solicitors, and
denied ever discussing any will with Rukhsana. Dealing with the period leading
up to 26th March 1998, she spoke of threats by Imran's father and
said that she had been angry with Rukhsana. She said that she had seen a doctor
about an abortion for Rukhsana. The doctor's reply had been that since Rukhsana
was some 23 weeks pregnant it was too late, but that there was a doctor in
Birmingham who could do something. This account was largely confirmed by the
relevant doctor in evidence. The appellant said that Rukhsana had refused to
agree to this proposal, and that she had been very angry with Rukhsana and had
kicked her. She said that Rukhsana wanted to have the child and to marry Imran,
and that she was going to take Rukhsana's children to Pakistan, and thought
that, if a visa could be arranged, Rukhsana's husband could come to England to
obtain a divorce.
12. On 14th April 1998 the appellant substantially changed her
account regarding the evening of 26th March, though not prior
events. She did so, as emerged at trial, having learnt that Iftikhar had told
the police that she had been at Rukhsana's house at the relevant time. She said
that she went to Rukhsana's house with Shazad, after first going to Fakara's
house. She said that she had told Shazad that Rukhsana was expecting a baby and
had asked him to speak to Rukhsana and ask her to have an abortion. Shazad had
asked Rukhsana whether she was pregnant and she had denied it. Shazad got angry
and got hold of Rukhsana to hit her. The appellant had stood up and told him
not to hit her. He had got Rukhsana round the throat. Rukhsana fell to the
floor, but Shazad again got hold of her, pulling what she described as threads
round Rukhsana's throat. Throughout she and Iftikhar were trying to separate
them and to free Rukhsana. When they eventually succeeded in pushing him back,
she turned Rukhsana over from the legs, while Iftikhar turned her from her
upper body. Rukhsana was lifeless. Shazad was surprised also and became
scared.
13. In evidence (given through an interpreter) the appellant maintained this
account, adding that she had been massaging Rukhsana's legs in an attempt to
revive her, a suggestion not mentioned by her in any of her interviews. In
interview she said further that her sons had decided to hide the body, and they
had all helped put it into a pillow cover which she said was obtained by her
sons from upstairs. She was inconsistent about where it came from. She said at
first that Rukhsana must have bought it, and later that she did make pillow
cases and had made this one, which Rukhsana had taken with her when she moved
into No.140.
14. Shazad Naz was interviewed at a substantially later date, after his return
from abroad. He said that he had no idea of Rukhsana's pregnancy before they
went to her house that evening, that, once they were there, an argument had
developed between the appellant and Rukhsana, with the latter lashing out at
the former. He had been shocked and tried to intervene, but Rukhsana had
struggled and was trying to go towards the appellant. He saw a flex lead,
grabbed it and tried to tied her to her chair so that she would not hit the
appellant. The flex got caught round her neck, the appellant was grabbing hold
of him, Rukhsana was struggling, went limp and then fell to the floor face
downwards. She'd "choked her tongue out" and the next thing she was dead.
Neither his mother nor his brother were involved in her death. The flex had
been round her neck for some 3 to 4 minutes. When he had let her go, he
said:
"My mother straightened her while she was shaking, she, I mean, she had her
hands on her face to like wake her up to get in conscious again, like we
thought she's unconscious ... or something or she's trying to bring her, you
know, alright again, or whatever, and what did she, er, think she was holding
her legs because I think she was shivering or something but what, what my
mother was trying to do is, try to get her conscious again".
15. Shazad said that it was only after the appellant left the house that he
went upstairs to get the pillow case in which he and Iftikhar then put the
body. He said that the spades and other items bought were for his uncle's
trade.
16. Louise Wan gave evidence of conversations with Iftikhar on 27th
and 28th March 1998. On 27th March (as summed up in the
summing up:)
"She said "Iftikhar looked upset, he had tears in his eyes" and she knew
something was wrong. When Louise asked him, he said his sister was missing,
that "she might have been kidnapped by some people". He started crying and
said he didn't know who'd done it." He elaborated the story by saying her
shoes, coat and credit card had been left in the house. Those were, of course,
lies. "He said she'd last been seen yesterday. He didn't come to college by
car as he usually did." When asked where the car was, he said it had been
crashed near his house when someone ran into the back of it. That, too was a
lie; the car had been taken by Shazad."
17. On 28th March, during an emotional two and a half hour talk, he
said amongst other things that his sister was dead. As the summing up recounts
it:
" On the Saturday she had met him again and he had said that his sister was
dead "my brother did it". "It just happened, he was there and his mother was
there".
Iftikhar said "we strangled her, his brother had strangled her".
"His brother said something about helping him, he said he
did."
Iftikhar told her that he pulled one end of the wire and that his
brother was using full force.
He said "Rukhsana's face was just going white, she had her tongue stuck
out. I think my sister was lying on the floor."
"I think my mum was ....Iftikhar said she was holding her legs or
something. I'm not quite sure. She was there, she was holding her legs or
something like that."
She went on to say that Iftikhar described Rukhsana lying there and
then they had wrapped her in a cloth and took the body in a car.
Iftikhar described going to a country lane. "She was wrapped in a blue or
black cloth. He said his mum made it. I don't know when she made it."
He had also said that his brother and mother were discussing about
kicking. "I don't know when". He just thought it was all a joke."
She went on to describe agreeing to provide Iftikhar with an alibi"
18. The Grounds of Appeal originally served on 7th June 1999
identify one area of complaint, namely improper pressure put by the police on
Louise Wan to give evidence and improper control by them of her evidence.
Because of her admitted lies in support of Iftikhar's false alibi, she was
arrested and charged on 21st April 1998 with an offence of assisting
an offender. Originally, it was intended that the charge should feature on and
be tried at the same time as the indictment for murder. But by 28th
September 1998 it had been decided to make Louise Wan a witness in the case.
The charge was not therefore proceeded with. Louise Wan gave evidence on
11th May 1999. On a review of her position on the next day, Miss
Cattell, the solicitor with the CPS having the conduct of the matter, concluded
that it would not be in the public interest to prosecute her to trial. The
relevant documents relating to the decisions taken in respect of Louise Wan
were disclosed to the defence, and Miss Cattell gave evidence at trial. This
course of events was the subject of close attention at trial. Mr Shears told us
that Mr Latham, counsel for Iftikhar to whom Louise Wan's evidence was directly
related, raised in a forthright way all points which could fairly be taken.
There was no explanation why Louise Wan had been charged not with perverting or
conspiring to pervert the course of justice, but with a charge which meant that
the Crown would have first to establish Iftikhar's guilt. It was submitted that
Louise Wan may have felt under pressure because of the charge hanging over her,
and that its pendency might influence her evidence.
19. No application was made to exclude the evidence of Louise Wan under s.78 of
PACE or otherwise. And it is not now suggested that it was inadmissible. The
criticism made is that the judge did not however give sufficiently careful or
appropriate directions with respect to her evidence and its risks. It is
however notable, reading the summing up, that the judge did return repeatedly
to this important aspect and to the care which it merited. He said this:
"The two principal witnesses for the prosecution were Safina, the victim's
sister, and Garyan, or Louise, Wan, Iftikhar's girlfriend. You will have to
give careful consideration to their evidence, particularly the evidence of Miss
Wan for reasons which I will explain.
......
"I turn next to the evidence of Louise Wan, the girlfriend of Iftikhar. His
counsel has submitted that her evidence cannot be relied upon and that it has
been coloured by the knowledge that a criminal charge is hanging over her for
assisting an offender. You will have to consider that suggestion with great
care and ask whether it cause you to conclude that it would not be safe to rely
on the witness's evidence. The charge arose out of the fact that Miss Wan gave
a witness statement to the police in which she provided a false alibi for
Iftikhar. I will come back to that topic in due course.
......
"Another aspect of Louise Wan's evidence concerns the creation of a false
alibi for Iftikhar. He asked her what he should say if the police came looking
for him. He said he could not say he was at her house, she said "Why not?" So
it was agreed that Iftikhar would say he was Louise's house. The following
day, they discussed what they should tell the police. She said she would be
prepared to tell them that he was with her on Thursday evening and that is what
she did say. She made a statement to the police, giving Iftikhar a false
alibi.
She ended up by being arrested and detained for a day. On 21st April, she was
charged with the offence I have mentioned, that of assisting an offender. She
was later told by the police that she would have to attend court as a witness
and she gave a witness statement. May I return to what I referred to earlier.
At the time Louise Wan gave her evidence before you, she had not been told
whether or not she would be prosecuted for the offence. She said she thought
it might have something to do with her evidence here. However, she said that
she was telling the truth in her witness statement and to this court. At a
later stage of the case, the prosecution tendered a Miss Cattell, a solicitor
for the Crown Prosecution Service, for cross-examination by the defence. It
appeared that, on 30th April 1998, it was decided that Louise Wan would appear
on the same indictment as these three defendants, not, of course, charged with
murder, but with the offence of assisting an offender. But some time between
that date and 28th September, the decision was taken to make her a witness in
the case. It did not occur to Miss Cattell that Louise would be under any
pressure because of the charge hanging over her or that that might cause her to
think that what she said in evidence might influence the decision whether or
not to prosecute her. It was felt that before proceedings could be brought, it
would have to be established that there was an offender, that is to say
Iftikhar, and to establish that he had committed an offence. Louise Wan gave
evidence on 11th May. The next day there was a review of her case. In Miss
Cattell's opinion, it would not be in the public interest to prosecute her.
Counsel for Iftikhar submits that here was a deliberate attempt by the
prosecution to influence Louise Wan's evidence. You must give that submission
serious consideration. None of this renders Louise Wan's evidence
inadmissible; you have heard it without objection from the defence. The
question is whether it casts doubt on the reliability of her evidence so as to
affect the weight which you should attach to it. The prosecution point out
that as long ago as 14th April 1998, a passage from Louise Wan's statement was
put to Iftikhar, as you will remember from page 110 of his interviews.
Iftikhar denied the allegation contained in that passage. The point is that is
is not something which has been recently made up. What was said by Louise Wan
in her statement and what was put to Iftikhar in that passage is not, of
course, evidence against Iftikhar. He denied it, so it is not evidence against
him."
20. In this area, he was, as counsel for the appellant accepts, also covering
ground which had been fully and forcefully covered in submissions by Mr Latham,
counsel for Iftikhar, who was directly affected by Louise Wan's evidence. We do
not think that the jury can or would have been in any doubt about the nature of
the problem and the risk to which their attention was being directed. In our
view the summing up in this area is not susceptible to the criticisms which
have been made of it.
21. As to the suggestion made that at one point the judge tended to reverse the
onus of proof in this area, what he said in respect of the defence suggestion
was:
"You will have to consider that suggestion with great care and ask whether it
causes you to conclude that it would not be safe to rely on the witness's
evidence."
When he came back to it, at the end of his full treatment of the point, he
said:
"Counsel for Iftikhar submits that there was a deliberate attempt by the
prosecution to influence Louise Wan's evidence. You must give that submission
serious consideration. None of this renders Louise Wan's evidence
inadmissible; you have heard it without objection from the defence."
22. At the beginning of his summing up, he also directed the jury in standard
terms as to the onus on the Crown. It is we think clear that by using the word
"conclude" he meant no more than "consider" or "think". He was not directing
the jury about onus of proof.. We do not think that they can have been left in
any doubt that the relevance of the admitted course of events regarding the
outstanding charge was whether it cast any doubt on the reliability of Louise
Wan's evidence. In this area, as in others, we note that counsel, to whom the
judge before concluding his summing up and in the absence of the jury expressly
offered the opportunity of correcting any errors or omissions which they would
like him to correct, raised only one (presently immaterial) minor matter of
concern which the judge duly corrected. Since the offer was made just before
adjourning for the night and the jury was not sent out until next morning,
counsel also had the opportunity of reflecting on the summing up overnight.
23. In Further Grounds of Appeal served 12th August 1999, the
appellant submits that the judge (a) failed to give any direction as to the
admissibility of Louise Wan's evidence in respect of the appellant and Shazad
Naz, (b) failed to direct them that any conversation which she had with
Iftikhar Naz after the killing was not admissible, (c) failed to direct them
that Louise Wan's evidence could not be taken to support Iftikhar Naz's
admissions to the police implicating the appellant in the killing and (d)
failed to deal in detail with those passages in the interviews of Iftikhar Naz
which in his evidence he confirmed as being true.
24. Ground (a) is factually incorrect, as counsel for the appellant now
accepts. The judge gave a direction on the point in wholly appropriate
terms:
"I warned you at the time, and I repeat the warning now, that what one
defendant says about another defendant in the absence of the other is evidence
only against the defendant who says it. It is not evidence against the other
defendant who is not there to hear it and not in a position to challenge it.
Therefore, what Iftikhar, for example, said about his mother, Shakeela, or
about his brother, Shazad, to his girlfriend or when giving a witness statement
to, or being interviewed by, the police, is not evidence against Shakeela or
Shazad and you should disregard it so far as they are concerned. The same
applies to anything which Shakeela or Shazad said in similar circumstances."
(page 13).
Later he said:-
"The defendant, Iftikhar, told the police that it was a skipping rope taken
from his room which was subsequently dumped, though he had earlier said it was
a black rope or wire. To Louise Wan, Iftikhar referred to it as "a wire". I
remind you that is evidence only against Iftikhar." (page 29).
25. When dealing with Louise Wan's position, he also said:
"What was said by Louise Wan in her statement and what was put to Iftikhar in
that passage is not, of course evidence against Iftikhar. He denied it, so it
is not evidence against him." (page 27).
This third passage identifies the underlying principle as it applies to
out-of-court statements made in the presence of a defendant, but not endorsed
by him or her. Further, as is apparent from what the judge said, the direction
given at page 13 had been previously given by him during the course of the
trial, in all likelihood on the first occasion when evidence of the type in
question was first adduced. In addition, although this is in no way necessary
for the conclusions which we reach, counsel for the Crown told us that his
notes show mentioned it as the last point in his opening speech, and in
likelihood the point was also made in closing speeches.
26. What is now submitted is not that the judge failed to give any direction,
but that further directions were called for in view of the importance of
Louise Wan's evidence, with which the judge dealt in his summing up at pages
22-27. We do not consider that this objection has any weight either. The jury
were, as we have indicated, told on a number of occasions of the relevant
principle regarding anything said by Iftikhar which might appear to implicate a
co-defendant. Iftikhar's statements only came before the court (a) in
consequence of the evidence of Louise Wan, called by the Crown with reference
to the Crown case against Iftikhar or (b) in the case of the interviews, in
consequence of the evidence of a policeman producing the transcript. The jury
must have appreciated that the warning about their irrelevance to the case made
against other defendants (here, the appellant) applied directly to the contents
of Louise Wan's evidence. That in some respects similar statements were said to
have been made by Iftikhar to Louise Wan and to the police in interview does
not carry the matter any further.
27. It is said that the judge should when reciting Louise Wan's evidence have
repeated that her recollection of what Iftikhar had said to her was only
admissible against Iftikhar. Mr Shears cited Makanjuola (1995) 2 CAR
469. That case followed the abolition of the requirement of a warning about
convicting a person on the uncorroborated evidence of an accomplice or of the
victim of an alleged sexual offence. Considering the residual discretion which
exists in appropriate circumstances to give such a warning, the Lord Chief
Justice court suggested that it should be given by the judge in the course of
his resume of the evidence, rather than as a set piece direction. We are not
here concerned with a warning of the dangers of acting on uncorroborated
evidence, but with a direction relating to the inadmissibility and irrelevance
of a certain category of evidence as against the appellant. But, quite apart
from that, every summing up must be read as a whole. Here the direction given
made with specific reference to the particular statements to which and the
particular defendants to whom it had practical relevance. It repeated a like
direction given previously in the trial. After recounting the evidence of
Louise Wan, the judge again made specific reference to the point. There is to
our mind no force in the objection made.
28. Mr Shears sought also to take issue in this connection with the terms in
which the judge warned the jury to consider with care whether it was safe to
rely on Louise Wan's evidence. The judge said:
"Counsel for Iftikhar submits that there was a deliberate attempt by the
prosecution to influence Louise Wan's evidence. You must give that submission
serious consideration. None of this renders Louise Wan's evidence inadmissible;
you have heard it without objection from the defence. The question is whether
it casts doubt on the reliability of her evidence so as to affect the weight
which you should attach to it."
29. But the whole of the passage of which this quotation forms part was in the
context of the attack which had been made on Louise Wan's evidence by Mr
Latham, counsel for Iftikhar. Both the passage and the judge's summary of
Louise Wan's evidence were in terms directly related by the judge to the
Crown's case against Iftikhar. When he referred as he did at page 24G to the
importance of her evidence, he did so quite in a context and in terms which in
our view made it clear that he was referring to its importance for the Crown
case against Iftikhar.
30. In these circumstances, we see no force in any of the points which we have
identified above as points (a), (b) and (c).
31. An additional point - though one on which it is quite unnecessary to rely
in order to reject the objection, as we have done - is that the jury cannot in
any event have accepted Louise Wan's evidence as to what statements Iftikhar
did make to her. That follows from the jury's acquittal of Iftikhar.
32. In point (d) it is suggested that the judge should have given more specific
directions relating to the interviews which Iftikhar confirmed in evidence were
"in general terms" true after the police had told him that Louise no longer
supported his alibi. However, Iftikhar's evidence corresponded in very material
respects regarding the events of the evening of 26th March with the
account given in his later interviews, including that part of such account as
implicated the appellant. Iftikhar's evidence about seeing the appellant
kneeling by Rokhsana's feet and about what the appellant said thereafter, were
extremely damaging evidence from the appellant's viewpoint, even if marginally
weaker than the account given in interview. They combined with the very
considerable unlikelihood that Shazad could have strangled Rokhsana in the
appellant's presence and with Iftikhar upstairs, without the appellant being
party to what was occurring. It is true that Iftikhar did not in evidence say
all that he had said in interview. For example, he did not (and could not
because he had no direct knowledge on the subject) speak of his belief in the
appellant's involvement in a prior plan. But the jury was appropriately
directed to ignore statements in interview not made in the witness box. It was
unnecessary to go further. Moreover, if the judge had gone further or attempted
to identify any differences more specifically, it might have might have drawn
attention to matters not expressly covered in interview in a way which would
have been positively unfavourable to the appellant.
33. Mr Shears also invited us to consider what reasons the jury can have had
for acquitting Iftikhar while convicting this appellant. The jury heard all the
evidence and had the opportunity of assessing the truthfulness and reliability
of each defendant. That the appellant played an active role in the strangling
was positively shown by evidence given by Iftikhar, whose innocence the jury
accepted. The jury was evidently not satisfied about the accuracy of at least
that part of Louise Wan's account of her conversation on 28th March
1998 with Iftikhar in which she recalled that he had used words incriminating
himself. The background to events on 26th March found in the
appellant's wish that Rukhsana have an abortion and her anger with Rukhsana,
her lies after such events and her failure until trial to mention that she had
been rubbing Rukhsana's legs in any attempt to revive her all supported the
case against her. We do not consider that the fact that the jury acquitted her
and convicted Iftikhar gives any reason to regard the jury's verdict as
unsafe.
34. Finally, in his oral submissions, Mr Shears directed our attention to the
Equal Treatment Bench Book, especially the passages at page 99:
"Ethnocentric assumptions are a source of social injustice and social
exclusion, involving the imposition of one group's implicit expectations and
evaluations on another - a form of institutional racism.
........
There is a risk that juries may evaluate some aspects of evidence according to
inappropriate yardsticks.
* Erroneous assumptions can be drawn about the credibility of those from
minority backgrounds before they even say anything at all.
* Judges should warn juries of the dangers of deploying their own assumptions
to evaluate the behaviour of those whose cultural conventions are different
from their own.
The significance of any act of behaviour cannot be adjudged without reference
to the relevant cultural code."
35. He referred to a statement made by counsel for the Crown that, on the
Crown's case that Rokhsana was murdered, it "beggared belief" that attitudes
were as they were, and to various passages in the summing up. Those were
passages where the judge mentioned the possible motive which the Crown was
suggesting for the murder, namely disgrace which Rokhsana's behaviour and
intentions might have been perceived as bringing on her family or its honour,
where he referred to "the tensions which may develop between members of the
same family, between different generations of the same family and between
different cultures, outlooks and morals which different members of the family
may adopt", and where he quoted (in the context of his direction on
provocation) Shazad's counsel's own description of Shazad as "an idealistic
Muslim follower holding the ideas of Islam". Mr Shears submitted that the judge
should have warned the jury about the risk of deploying their own assumptions
to evaluate others' behaviour. This is a ground not contained in the notice of
appeal, and no notice of any intention to raise it was given prior to counsel's
argument before us. This being pointed out, Mr Shears deliberately refrained
from making any application to amend the notice of appeal. In the
circumstances, Mr Hunt was correct in saying that the point is not one to which
he had to respond on this appeal.
36. But, in any event, we do not see that the point has or could have force in
the light of the circumstances and issues in this case - whether directly or,
as Mr Shears also suggested, as "background". The summing up was in fair and
neutral terms. The possible motive which the Crown suggested was one which the
Crown was justified in suggesting by the evidence given, and it was one which
the Crown itself acknowledged was on its face an extraordinary one. The issues
before the jury were clear, and turned essentially on the evidence before the
jury about the factual course of events. Mr Shears did not identify the
assumptions which the jury might have made which could have clouded the
resolution of the issues in this case. In the event, the jury accepted part of
the Crown's case and rejected part. It acquitted Iftikhar, but convicted the
appellant. There was, as we have indicated, compelling evidence against her. We
see nothing in this part of Mr Shears's submissions which could render the
verdict in relation to her unsafe.
37. Mr Shears pointed at the very conclusion of his submissions to some
particular words used or observations made by the judge in the course of a
summing up covering some 60 pages, which he also suggested would have been
better not said. One passing reference was to the fact, correct on the
evidence, that the appellant did not speak English after 24 years in England.
Another invited the jury to consider whether any of Shazad, Iftikhar or the
appellant at any stage displayed any remorse for what had happened. The latter
point does not seem to us immaterial in a case where the issue was whether the
defendants had played any and what role in Rokhsana's death. Again, however,
these are points which are not in any ground in the appellant's notice of
appeal, and which could not in any event, alone or with any other points, make
the jury's verdict unsafe.
38. For all these reasons, we consider that the jury's verdict in respect of
this appellant was safe, and that her appeal must be dismissed.
MR SHEARS: My Lord, can I ask you, obviously with a view to advising this
appellant as to any other remedies she may have in the European Court, for you
to certify that there is no point of English domestic law of general public
importance involved in the decision of the court. It seems to me that is
self-evident. But I would invite you to say that because of course we have to
exhaust our remedies here.
LORD JUSTICE MANCE: Mr Shears what we say is that if we had had an application
we certainly would not have been minded to consider that there was a point of
general public importance involved in the decision.
MR SHEARS: My Lord, I make no application because there is not one, but it has
to be understood for any further application that that is the position.
LORD JUSTICE MANCE: I think you can rest assured that that would indeed have
been our view.
MR SHEARS: Thank you very much for that indication.
© 2000 Crown Copyright
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