Case No: 201305988 B5
Neutral Citation Number: [2016] EWCA Crim 8
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
Mr Justice Holroyde
T20127550
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 02/02/2016
Before :

THE PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MRS JUSTICE PATTERSON
and
MRS JUSTICE WHIPPLE

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Between :

	BASHARAT ALI DITTA	Applicant	
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	THE QUEEN	Respondent	

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Jeremy Dein Q.C. and Abimbola Johnson for the Applicant
Anne Whyte Q.C. for the Respondent

Hearing date : 20 Jan 2016
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Judgment
Sir Brian Leveson P :
1.	On 1 November 2013, in the Crown Court at Liverpool, before Holroyde J and a jury, the applicant, Basharat Ali Ditta, a solicitor and at the material time a salaried partner at Forbes Solicitors in Blackburn, Lancashire, was convicted of two counts of doing acts tending and intended to pervert the course of public justice (contrary to the common law).  He was sentenced to 3 years’ imprisonment on each count (to be served concurrently). This is a renewed application for leave to appeal conviction and sentence following refusal by the single judge; further grounds have been added to the application.  Given that it is an application only, it can be dealt with quite shortly.
2.	The convictions arose out of the applicant’s acquaintance with Neil Scarborough, Suhail Vohra, and Tahier Chand, who were arrested in August and September 2011, as part of Operation Oak, a Lancashire police investigation into two closely linked major drug conspiracies in Preston and Blackburn.  These men were later convicted of conspiring to supply Class A drugs.  The three were or had been professional clients of the applicant. 
3.	The attention of Lancashire police was first drawn to the relationship the applicant had with Scarborough, Vohra, and Chand when, on 4 February 2011 while carrying out surveillance in connection with their investigation into the drugs conspiracies, police officers observed Scarborough hiding wraps of cocaine under a bin outside the applicant’s home. Thereafter, on 6 September 2011, when the applicant came to be arrested, cocaine residue was found in his wallet and on his credit cards.  He was thus charged with further offences between 5 February and 5 September 2011. On 24 October 2011, the applicant pleaded guilty before magistrates to three offences of possession of a Class A drug, namely cocaine. Further investigation led to these charges.
4.	At his trial before Holroyde J, the prosecution relied on the applicant being a regular user of cocaine and alleged that Scarborough was his supplier on repeated occasions, which compromised his professional and personal position and gave him every incentive to assist Scarborough to avoid arrest.  In particular, it was alleged that the applicant sought from the police and communicated information to Scarborough, Vohra, and Chand concerning Operation Oak and passed messages between suspects, knowing or believing that such acts might frustrate the ongoing police investigation. The defence case was denial of each ingredient of the offences.
5.	In the initial grounds of appeal, Mr Simon Csoka QC for the applicant relied on eight grounds, which were said individually or cumulatively to render the convictions unsafe. Permission was refused by the single judge (Ramsey J) on each ground. The applicant subsequently parted company with Mr Csoka and Mr Jeremy Dein QC was instructed to lead a new legal team; he relies in the present renewed application on all eight grounds advanced before Ramsey J, subsequently abandoning one relating to inferences from silence. As well as making substantive additions to the original grounds, Mr Dein also added two additional grounds.  The first related to the way in which the original legal teams (initially led by Mr Peter Wright QC, then Mr Csoka) handled conversations and correspondences between the applicant and Scarborough, Vohra, and Chand, said to be protected by legal professional privilege.  The second additional ground concerned fresh forensic evidence; this latter ground has since also been abandoned.
Grounds 1 and 2: Admission of evidence of applicant’s cocaine use
6.	The first two grounds of appeal are that the trial judge, Holroyde J, should not have admitted evidence relating to the applicant’s cocaine use, under section 98 or section 101(c) or (d) of the Criminal Justice Act 2003: namely, his three convictions and the circumstances of those offences.
7.	Section 98(a) of the 2003 Act provides that where evidence is “to do with the alleged facts of the offence with which the defendant is charged”, no bad character application need be made in relation to that evidence. In R v Sule [2013] Cr App R 3, Stanley Burton LJ commented, at [11], that the words “to do with” have a broad application: they would certainly cover prior conduct which provided a reason for the commission of an offence. Such a situation could also be admitted as important explanatory evidence or evidence to an important matter in issue between the defendant and the prosecution, under section 101(c) or (d) in regard to the defendant’s bad character. The route by which such evidence is admitted is not of any consequence once admitted. 
8.	As found by Holroyde J at [8] of his ruling on the bad character application, and reiterated by Ramsey J refusing leave to appeal, the nature of the relationship between the applicant and Scarborough, Vohra, and Chand lies at the heart of the matter. Indeed, it was the prosecution’s case that the applicant’s receipt of cocaine from the drug conspiracies via Scarborough provided him with the motivation to assist Scarborough to avoid arrest, leaving his own illegal and unprofessional conduct left undetected. We entirely agree with Holroyde J, at [11], that the evidence relating to the applicant’s cocaine use:   
“… is evidence which the jury could find supportive of the inference that his dealings with his three clients were compromised by his own repeated use of cocaine and consequent willingness to assist a man who was at least one source of supply of that drug”. 
9.	The course of justice at issue was part of Operation Oak (namely that part of it which involved investigation into Scarborough, Vohra and Chand).  The Crown’s case was that the applicant’s use of cocaine supplied by a conspirator under investigation as part of Operation Oak provided him with good reason for doing acts tending and intended to pervert that police investigation. 
10.	We further agree with Ramsey J that the applicant’s use of drugs supplied by one of his clients had substantive probative value on the true nature of the applicant’s relationship with Scarborough, Vohra, and Chand; and, moreover, without that evidence, a jury would find it difficult to understand the other evidence in the case. 
11.	In these circumstances, it is also difficult to imagine how admission of this evidence would have such an adverse effect on the fairness of proceedings that the court ought not admit it under section 78 of the Police and Criminal Evidence Act 1984 (PACE).  
12.	We, therefore, do not consider that there are arguable grounds of appeal against the admission of the applicant’s drug offences and the circumstances of those offences under section 98 or section 101(c) or (d) of the Criminal Justice Act 2003.
Ground 1A: Previous convictions of Scarborough, Vohra, and Chand
13.	The first new ground which Mr Dein seeks to argue is that the previous convictions of Scarborough, Vohra, and Chand should not have been admitted either under section 98 or section 101(c) or (d) of the Criminal Justice Act 2003. 
14.	These previous convictions once again fall within the broad ambit of what is to do with the offences under section 98. They are relevant to the prosecution showing that the applicant was fully aware of the criminal proclivities and activities of Scarborough, Vohra, and Chand when he communicated with them, and, additionally, the likelihood that they would be arrested as part of Operation Oak. The offences would also fall under section 101(c) or (d). 
15.	While Holroyde J could have been more explicit at 40F to 42C as to the relevance of the previous convictions, it is obvious that they pertained to the applicant being fully aware of the criminal activities of Scarborough, Vohra, and Chand and thus knew they would be interested in whether there was a police investigation which might reach them. The effect certainly was not to taint the trial with irrelevant, unattractive, and prejudicial material, as Mr Dein argued. For these reasons, neither is it the case that section 78 PACE is engaged. Accordingly, there are no arguable issues in relation to the previous convictions of Scarborough, Vohra, and Chand.
Ground 1B: Admission of information relating to Operation Oak 
16.	Mr Dein complains about what he argues to be admission of an overly large body of material relating the involvement of other persons in Operation Oak. 
17.	However, despite the Schedule of Events being lengthy (some 91 pages), as Ms Anne Whyte QC submits for the respondent, the applicant’s trial was always going to be conducted in the substantial context of Operation Oak. Despite the Schedule containing some unnecessary detail, much of it was required for the prosecution’s case in explaining the communication between the applicant and members of the drugs conspiracies, Scarborough’s supply of cocaine to the applicant, and the relationship between Scarborough, Vohra, and Chand and the persons whose arrests it was alleged triggered the applicant to act to pervert the course of public justice. 
18.	The volume of information admitted in relation to Operation Oak does not, therefore, give rise to an arguable ground of appeal. 
Ground 3: Propensity for untruthfulness
19.	Mr Dein submits that Holroyde J erred in admitting evidence arising from police interviews following the applicant’s arrest for possession of cocaine on 6 September 2011 adduced to show that he had a propensity for untruthfulness.  
20.	In the interviews, the applicant lied asserting that he had never used cocaine and that Scarborough had not supplied cocaine on 4 February 2011. He also falsely claimed that phone conversations between him and Scarborough around that time (which clearly led to the supply of cocaine) were subject to legal professional privilege (“LPP”) and that, if Scarborough had visited his house, it was only because of a legitimate professional relationship. 
21.	The trial judge admitted the evidence on the basis that it was relevant to an important matter in issue between the applicant and the prosecution, namely whether the applicant had a propensity to be untruthful. The trial judge further held that the nature of the applicant’s relationship with Scarborough, Vohra, and Chand was a very important matter in issue in the case and that the jury would have to consider whether the applicant’s phone contact with them was legitimate or whether LPP barred the applicant from giving evidence as to the contents of those calls. The decision to admit was made at the beginning of the case, at a time when the applicant’s position as set out in his defence case statement was that LPP barred him from giving evidence of those calls.  Even after the applicant abandoned that position and gave evidence of the various conversations, the appellant’s propensity to tell lies remained at the heart of the case, and this evidence remained highly relevant.    
22.	The applicant’s willingness to lie about his relationship with Scarborough is clearly of direct relevance to the charges on which the jury had to decide, which had, at their heart, the nature of the relationship between the applicant and Scarborough, Vohra, and Chand. Moreover, given the important role LPP was to play in this case, it was again relevant that the applicant had falsely attempted to assert LPP in the past. Finally, it must be noted that, in summing up, Holroyde J was at pains to ensure that undue weight was not given to these pieces of evidence, if the jury were in fact to decide that the applicant had a propensity to shelter untruthfully behind his role as a solicitor. 
23.	In these circumstances, we have no doubt that it is not arguable that Holroyde J erred in admitting evidence arising from police interviews following the applicant’s arrest for possession of cocaine on 6 September 2011 to show that he had a propensity for untruthfulness. 
Ground 4: No case to answer
24.	Mr Dein further adopts the fourth original ground of appeal that the prosecution presented insufficient evidence to leave the case to the jury. In particular, it is said that the circumstantial evidence presented did not form a sufficient basis for the jury to convict. 
25.	In this regard, in R v Lewis [2014] EWCA Crim 48, at [141], citing Goring [2011] EWCA Crim 2, I set out the relevant propositions in the following terms: 
"34. As to the primary ground of appeal, the traditional approach identified by Lord Lane CJ in R v. Galbraith [1981] 1 WLR 1039 (if a reasonable jury properly directed could not on the evidence find the charge proved beyond reasonable doubt) concerned the weight to be attached to evidence implicating the defendant upon which the Crown relied. The application of that principle to cases of circumstantial evidence, however, has been the subject of further debate, primarily in a number of unreported decisions which were considered accurately to reflect the common law by the Judicial Committee of the Privy Council in DPP v. Varlack [2008] UKPC 56 which concerned an appeal from the Court of Appeal of the British Virgin Islands. 

35. Thus, in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1, in the Supreme Court of South Australia, King CJ summarised the appropriate approach in these terms: 

"[I]t is not the function of the judge in considering a submission of no case to choose between inferences which are reasonably open to the jury. He must decide upon the basis that the jury will draw such of the inferences which are reasonably open, as are most favourable to the prosecution. … Neither is it any part of his function to decide whether any possible hypotheses consistent with innocence are reasonably open on the evidence. … He is concerned only with whether a reasonable jury could reach a conclusion of guilty beyond reasonable doubt and therefore exclude any competing hypothesis as not reasonably open on the evidence. 

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case, that implies that even if all the evidence for the prosecution was accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilty beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."

36. This was the conclusion reached in this court in R v. Bokkum (7 March 2000, unreported), where Tuckey LJ rejected, as contrary to Galbraith, the proposition that in a case dependent on circumstantial evidence, the judge would be required to withdraw the case if some inference other than guilt could reasonably be drawn from the facts proved ... .. This approach was approved in R v. Edwards [2004] EWCA Crim 2102 (paras 83-5) and adopted in R v. Jabber [2006] EWCA Crim 2694 in which Moses LJ said (at para 21): 

"The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence. But that is not the same as saying that anyone considering those circumstances would be bound to reach the same conclusion. That is not an appropriate test for a judge to apply on the submission of no case. The correct test is the conventional test of what a reasonable jury would be entitled to conclude." 
26.	In the present case, from the pattern and timing of phone contacts, in particular at the times of the cash seizure in February and the drug and cash seizure and arrests in August 2011, and from the surrounding circumstances, a reasonable jury would be entitled to infer that at least some of the defendant’s phone contacts with Scarborough, Vohra, and Chand involved the deliberate passing by the defendant of information which he intended to assist those three men in avoiding arrest: see [18] of Holroyde J’s ruling on submission of no case to answer. Indeed, it constituted strong circumstantial evidence. There was, therefore, sufficient evidence for a judge to decide that there was a case to answer. 
Ground 6: s. 34 of the Criminal Justice and Public Order Act 1994
27.	By s. 34(1) and (2)(d) of the 1994 Act, a court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from his failing to mention any fact relied on in his defence when being questioned under caution or at any time after he was informed that he is being charged with the offence or officially informed that he might be prosecuted for it. 
28.	In his summing up, Holroyde J directed the jury that s. 34 inferences could be drawn in two limited respects. First, at trial, the applicant gave evidence that he had only used cocaine up to about the end of May 2011 and that he did not obtain any cocaine from Scarborough after 4 February 2011, whereas in interview he did not say anything about the extent and duration of his cocaine generally, or of the supply of cocaine to him by Mr Scarborough in particular. Second, the applicant gave evidence explaining the reasons why he was in contact with Scarborough, Vohra, and Chand on 18 April and 24 August 2011, whereas he did not put forward any of those explanations when he was questioned in interview. 
29.	Mr Dein sought to argue that there is no reasonable basis for inferences to be drawn from the applicant’s silence in regard to these matters for a number of reasons.  First, the disclosure made by the police was minimal; second, no telephone evidence was provided before the interviews in the context of the conversations being between seven and eleven months old; third, he was at risk of incriminating his clients; fourth, there was a risk of breaching their privilege or confidentiality; and fifth, the applicant’s solicitor could provide no meaningful advice before interview. 
30.	However, as Ramsey J concluded when considering the matter pursuant to s. 31 of the Criminal Appeal Act 1968, while these matters would have been properly deployed as reasons why the jury should not draw an adverse inference in the circumstances, the trial judge was correct to direct the jury that it was open to them to draw such inferences. It should also be noted that Holroyde J limited the possibility of s. 34 inferences to the two issues described, the prosecution having unsuccessfully argued that that provision should apply to several additional matters dealt with in interview. Furthermore, it is clear from his summing up (at 23E to 27B) that Holroyde J was scrupulously fair in directing the jury on this matter, clearly drawing attention to the reasons offered by the defence for the applicant’s silence.
31.	In these circumstances, it is not arguable that there was no reasonable basis for the section 34 inferences on which the trial judge directed the jury. 
Ground 7: Summing up 
32.	Mr Dein’s seventh adopted ground was that the judge’s summing up rendered the conviction unsafe.  He submitted that Holroyde J’s summing up at page 11 misunderstood the nature of the interviews on 24 August 2011 which were limited to one supply in February which did not involve Tahier Chand; their significance was wrongly stated.  Even if this submission is made good, however, it is difficult to see how the jury was in substance misled. Tahier Chand was a co-conspirator who was well within the scope of the Operation Oak investigation: his house had in fact been searched on 24 August 2011 in his absence and they planned to arrest him around the 6-7 September. He equally would have wished to receive information for his criminal purposes. As such, the learned judge’s summing-up in this regard cannot be criticised, or, even if not as full as it might have been, cannot be criticised so as to amount to an arguable ground of appeal. 
33.	It is further argued that the judge did not direct the jury as to the inferences capable of amounting to ingredients of the two offences. Many of the points raised in the Perfected Grounds are points which are properly left to the jury: it is open to argument whether inferences can be drawn from the circumstantial evidence to which reference is made. Further, this must be taken in connection with Holroyde J’s clear and accurate explanation at 15G-17C of what inferences may be drawn from the circumstantial evidence. On a full reading of the summing-up, we therefore agree with Ramsey J’s conclusion that it both put prosecution and defence case based on the circumstantial evidence fairly before the jury. 
34.	Mr Dein’s third strand of argument in relation to the summing up is that the trial judge failed to disregard the prosecution assertions of face to face meetings on the basis that this and other matters were raised for the first time at trial without proper disclosure. To our minds, the idea that an extensive “trial by ambush” took place is fanciful. In any case, Holroyde J (at 108 of the summing-up) reiterated the criticisms advanced by trial counsel, Mr Csoka, as to the prosecution case in relation to the face to face meetings and general evidence relating to the conversations (at 126). As for the prosecution’s case that the applicant made Friday phone calls to arrange his cocaine for the weekend, given the applicant’s admission as to his weekend cocaine use, it was obvious that the prosecution would argue that the applicant’s phone calls to his clients on Fridays were to arrange cocaine. In this context, the defence were in possession of the relevant cell site material since 26 April 2013, well before the trial. Finally, as to non-disclosure of the logs, it would appear that they were in fact disclosed.  We deal with the fourth strand relating to LPP below.
Ground 8 and 8A: Disclosure 
35.	Mr Dein adopts and develops as ground 8A the original ground 8 that there was insufficient disclosure by the prosecution. As Ramsey J noted, the central question of the extent of the disclosure of Operation Oak was fully ventilated before Openshaw J on 8 May 2013 and was subject to a ruling of Holroyde J on 3 October 2013. The present application does not seek leave to appeal this ruling (which we have not seen) and does not seek to argue that the prosecution’s disclosure did not comply with it.  
36.	The main issue raised by this ground is an alleged failure to disclose all the investigation material related to Operation Oak.  We entirely agree with the views expressed by Openshaw J and Holroyde J, that to demand disclosure of all that material in the context of this prosecution would have been wholly disproportionate (or “absurd”, to borrow the word used by Openshaw J).  This was a prosecution for perverting the course of justice, in relation to certain named conspirators, in the course of the investigative phase of Operation Oak.  It was not suggested that the course of justice had in fact been perverted in any material way.  There was no basis for wider disclosure of the unused material and served evidence in Operation Oak.   
37.	Specifically, the probe transcripts and relevant observation logs were disclosed, albeit with some delay.  The cell site evidence was not disclosed but it would not have made any difference: the prosecution would still have been at liberty to suggest that the applicant contacted Scarborough on Fridays to obtain cocaine for the weekend – the location of Scarborough at the time of receiving the call(s) is not material.  The applicant admitted face to face meetings with Scarborough and others, and the prosecution case was not specific as to when those meetings took place, and would be unaffected by the existence of cell site or observation evidence at certain times.  
38.	Mr Dein makes a particular point in relation to Tahier Chand.  He argues that it emerged from a sentencing document obtained after the applicant’s trial that Chand was not party to the 18 February 2011 drug supply.  It is said that, by questions put to the applicant in cross examination and by answers he gave, the impression was left that Chand was party to that supply, but that this was not true, but the false impression was not corrected at trial because that document had not been disclosed.  We do not accept this argument.  The prosecution never asserted that Chand was party to the February 2011 supply; rather, the prosecution case was that Chand was a close associate of Scarborough and Vohra, who became relevant after June 2011 and sought information from the applicant after Vohra was arrested in August.  Further, the transcript which we have reviewed does not leave the impression that Chand was directly involved in the February 2011 supply.  The applicant at one stage suggested Chand was “involved in” the February 2011 supply, but this was not asserted with any confidence, and the language of involvement is vague. In any event, the role of Chand was not central to the issues in the case, and this was a tiny fragment of evidence amongst a large amount of evidence adduced.  
39.	Overall, quite apart from the merits of the complaints discussed above, we conclude that the convictions are not rendered unsafe by any of the complaints about lack of disclosure now advanced.  
Ground 9: LPP
40.	The applicant relied on LPP in his police interview and in his defence case statement, and on the basis of LPP, declined to give any details of the various phone conversations with Scarborough, Vohra, and Chand.  When he came to give evidence as part of his case, he adopted a different course and gave evidence about those conversations.  That course has given rise to a ninth ground of appeal, to the effect that the trial was unfair and the convictions are unsafe, having regard to the course of events relating to LPP before and, more particularly, during the Applicant’s trial.  
41.	We were unable to determine whether leave should be granted on this ground without first hearing from the applicant himself, and from his trial legal team, de bene esse: a number of the submissions now advanced by Mr Dein were not in the original document upon which the defence legal team commented.  We therefore adjourned Ground 9, with directions we have given, for a further hearing.  
42.	In the circumstances, this renewed application for leave to appeal against conviction fails on all grounds except ground 9, which is adjourned.  Although this is the ground upon which Mr Dein concentrated in the renewed application, given the need for new material and the fact that we are far from clear that we fully understand the position, we do not believe that it is appropriate to go further and, on the basis that the issue will have to be analysed de novo, do not reserve the restored hearing to ourselves.  It is for that reason that we have dealt with all the remaining grounds. 
Appeal against Sentence
43.	Turning to sentence, the renewed application for leave to appeal against sentence, to such extent as it is pursued (not having been formally abandoned) is, in any event, refused.  The applicant was sentenced 3 years imprisonment. He is currently out on licence.  We see no arguable basis for interfering with that sentence.  We agree with the observations of Ramsay J, that this was a serious case of offending by a practising solicitor; Holroyde J correctly identified the mitigating and aggravating features.  The sentence was entirely appropriate.