Neutral Citation Number: [2010] EWCA Crim 1683
Case No.  200903341B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
Date: Tuesday, 29 June 2010
 
B e f o r e:

LORD JUSTICE AIKENS 

MR JUSTICE DAVID STEEL 
 
RECORDER OF CARDIFF ‑ HIS HONOUR JUDGE NICHOLAS COOKE QC
(Siting as a Judge of the CACD) 
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R E G I N A 

v 

MIFTAH FAZAL UL‑HAQ 

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Mr P Lewis QC and Mr R Lallie appeared on behalf of the Appellant
Mr TWM Bayliss QC appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE AIKENS:  This is an appeal against conviction by Miftah Fazal Ul‑Haq, which is brought with the leave of the single judge.  On 4 June 2009, after a six‑week trial before the Recorder of Bradford, HHJ Gullick, and a jury, the appellant was convicted of the murder of Billy Khan.  That was count 1 on the indictment.  The appellant was sentenced to life imprisonment for that offence, and the minimum term was fixed at 14 years, less 279 days spent in custody on remand.  
2.	The appellant was acquitted of the attempted murder of Yusuf Khan (count 2 on the indictment).  Yusuf Khan is the brother of the deceased.  The appellant was also acquitted of two other counts which we need not go into.  
3.	There were two co‑accused.  The first was Kayshan Shazda Farooq, who is the appellant's nephew.  He pleaded guilty to the attempted murder of Yusuf Khan upon re‑arraignment at the close of the prosecution case.  He was sentenced to 11 years' imprisonment, less time spent on remand.  He was acquitted of count 1 on the direction of the judge.
4.	The second co‑accused was Mohammed Farooq, the appellant's brother.  He was acquitted of all counts by the jury upon a direction of the judge after the judge had accepted a submission of no case to answer.  It had been the Crown's case that Mohammed Farooq had a knife with him on the day of the fatal stabbing.  The judge effectively ruled that there was no evidence to go before the jury that Mohammed Farooq did have a knife on him at any relevant time.  
5.	The facts giving rise to the charges are as follows: the deceased, Billy Khan, had lived in a flat with his girlfriend in Charles Street, Elland, West Yorkshire, but they had been evicted.  On 28 August 2008 the deceased tried to force his way back into the flat, which had been locked and barred, in order to get his clothes and other belongings.  The police were called, and Billy Khan was arrested for criminal damage.  Members of the Farooq family, who lived in nearby Langdale Street, were present at the arrest.  There were heated exchanges between the Farooqs and Billy Khan.  
6.	Billy Khan was released without charge the following afternoon.  He was angry with the Farooq family because he thought that they had been responsible for his arrest.  He was made more angry by news of the loss of his job.  He and his brother, Yusuf Khan, went to the Langdale Street area.  They went to an off‑licence called Nozzy's, which is at the corner of Langdale Street and Rosebery Street.  They bought some lager there and drank it in the street.  Subsequently there were heated exchanges between Billy and Yusuf on the one hand, and Mohammed and Kayshan Farooq on the other.  These occurred outside the Farooq house at 79 Langdale Street.  Soon afterwards, Kayshan Farooq telephoned the police and complained about Billy Khan's verbal abuse and the fact that he (Billy) had offered to fight him and Kayshan's father, Mohammed Farooq.  
7.	Later there was a further exchange in Langdale Street outside the Farooqs' house between Billy Khan, Yusuf Khan and some of their friends on the one side, and the appellant and his brother on the other.  At one stage Mohammed Farooq advanced towards the brothers Khan, who retreated into Rosebery Street.  At some point the appellant went back to his own house because he was concerned about threats that he thought Billy Khan had made towards the appellant's children.  At his house the appellant asked his wife where the children were, and he was told that they were outside playing.  The appellant armed himself with a large carving knife, which he put into the jogging bottoms that he was then wearing.  He told his wife to ring the police.  
8.	The fatal incident took place soon after 4.45pm on 29 August 2008 near the off‑licence called Nozzy's.  Unfortunately the CCTV camera outside the shop did not record all the incident because of the angle at which the camera was set.  There was evidence that the Khan brothers had bought more lager at Nozzy's just before the fatal incident.
9.	After heated exchanges between Mohammed Farooq and Yusuf Khan in particular, Mohammed Farooq advanced on Yusuf, who was then in Rosebery Street, and grabbed him.  A wrestling match ensued between them.  The appellant's evidence was that Yusuf had Mohammed Farooq in a headlock and that he (the appellant) saw his brother's little finger was bleeding.  The deceased was nearby to his brother, Yusuf.  There was also other evidence that there was a scuffle involving the two Khan brothers and the appellant and his brother, during which the appellant had Billy Khan in a headlock.  
10.	The appellant's evidence was that he saw something in Billy Khan's hand which looked like a sharp and shiny object, which the appellant thought could be part of a beer can.  The appellant's evidence was that he thought that Billy was going to kill his brother, Mohammed Farooq.  The appellant admitted at trial that he delivered the fatal blow to Billy Khan, stabbing him once in the lower abdomen, where the knife severed the abdominal aorta and the vena cava.  Billy Khan died minutes later.  
11.	Yusuf Khan escaped and ran down the road, but was chased by the co‑accused, Kayshan Farooq.  At some stage before Yusuf finally escaped, Kayshan Farooq stabbed him more than once, including one potentially fatal stab into Yusuf's liver.  
12.	There were three relevant telephone calls to the police at and shortly after 5pm.  In the first at 17.01 the appellant's wife, Shahnaz Miftah, telephoned 999 from 83 Elizabeth Street, and she told the operator that there was a "riot going on".  She later changed that to say that threats were being made.  She was told to ring an 0845 number, which she did at 17.10.  She then alerted the police to the fact that Billy Khan and his brother "were back and causing problems again".  Shahnaz Miftah told the police that the call was prompted by her husband, the appellant.  The appellant was cross‑examined on whether or not he was actually present when that phone call was made.  He denied that he was present, although it was undeniable that he was in the same house at the time.  
13.	The third call was made by the co‑accused Kayshan Farooq, the son of the co‑accused Mohammed Farooq.  It was at 17.13 and it was a 999 call.  The jury were given transcripts of all of those phone calls, but they did not, during the evidence or counsel's speeches or the summing‑up, listen to the tapes of those calls.  
14.	The Crown's case at the trial was that the appellant had deliberately returned to his house to arm himself with a knife, had then returned to the scene of the argument and had then unlawfully killed Billy Khan with the intent to kill him or to do him grievous bodily harm, so that he was not guilty of murder.  
15.	The defence case was that the appellant stabbed Billy Khan in the lawful defence of his brother Mohammed, who was held by Yusuf and was about to be fatally slashed in the neck by Billy.  Therefore it was said the appellant was not guilty of any offence.  Alternatively, the words and deeds of the two Khan brothers provoked the appellant so that he was entitled to rely on the partial defence of provocation, so that he was not guilty of murder but guilty only of manslaughter.
16.	There are four extant grounds of appeal, the single judge having refused leave on the proposed ground 2, which is not pursued.  The first ground of appeal is that the judge was wrong to have refused the defence's application, pursuant to section 100 of the Criminal Justice Act 2003, to cross‑examine Yusuf Khan about his previous convictions and his previous encounters with the police.  The application was made just before Yusuf Khan gave evidence.  The judge refused the application, although he permitted other applications relating to cross‑examination.  He gave his detailed reasons for his refusal later on in the trial on 20 May 2009.  
17.	The convictions date from 1994, 1995, 1997, 1998, 2000 and 2004.  The convictions are principally for offences of dishonesty.  However, the 1994 offence is for grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861.  That offence was committed when Yusuf was 16.  He had pleaded guilty to that offence.  
18.	In his ruling, the judge accepted that the issue of the credibility of Yusuf was an important matter in the trial.  However, he said that there was an important distinction between "dishonesty" and "untruthfulness" and he noted the distinction, as drawn by Rose LJ, in the leading case of Hanson [2005] 1 WLR 3169 at para 13.  The judge concluded that the previous convictions of Yusuf did not demonstrate a propensity to untruthfulness which would assist the jury in the present case.  He also held that the convictions were "irrelevant to the issues that the jury have to determine and they are also of considerable antiquity and have no bearing on the present case: see sections 100(2) and (3) of the 2003 Act". 
19.	It is submitted by Mr Lewis QC for the appellant that these convictions related to important issues in the case, and that they had substantive probative value and so ought to have been admitted by the judge.  Mr Lewis identifies the important issues as being (a) that Yusuf Khan was violent and aggressive, and (b) that Yusuf Khan's evidence as to how the fatal stabbing occurred was false.  So he submits that the evidence of Yusuf's convictions ought to have been admitted under section 100 of the 2003 Act.
20.	Mr Lewis submits that the judge erred in his ruling in several respects.  First, although the judge purported to apply section 100, he wrongly referred to Hanson, which was a case under section 101 of the 2003 Act, dealing with the defendant's bad character.  Moreover, Mr Lewis submits that the remarks at paragraph 13 on Hanson on which the judge relied are inapposite in the present case.  Secondly, Mr Lewis submits that the judge's approach should have been that adopted by this court in the case of R v Stevenson [2006] EWCA Crim 2325, see in particular the remarks of Hughes LJ at paragraph 27.  In other words, Mr Lewis submits, the judge should have asked: is this relevant material that the defendant should be permitted to use to defend himself against a serious criminal charge?  Thirdly, Mr Lewis submits that the judge erred in not appreciating that it was important for the jury to know the character of Yusuf in order that it could better evaluate the truthfulness of his evidence.  Lastly, Mr Lewis submits that if the jury had had this material before them, they might have taken a very different view of Yusuf's evidence, and that could have been important in their overall view of the evidence and so in relation to their verdict against the appellant.  
21.	We cannot accept Mr Lewis' submissions.  We appreciate that the convictions were sought to be introduced under section 100 of the 2003 Act, which deals with the bad character evidence of non‑defendants.  Bearing in mind the definition of what constitutes "important explanatory evidence" that is set out at section 100(2) of the 2003 Act, the previous convictions of Yusuf Khan and his other alleged misconducted were properly excluded on that basis.  Such material must be relevant to the jury's understanding of the other evidence in the case or of understanding the case as a whole.  That did not apply in this case, so section 100(1)(a) is irrelevant. 
22.	We accept, as did the judge, that the issue of Yusuf's credibility was an important issue in the case.  We are prepared also to accept the question of whether he was violent and aggressive was also an important issue.  But the key question for the purposes of deciding whether to admit the evidence under section 100(1)(b) is whether the evidence has "substantive probative value" in relation to those issues and is of "substantial importance in the context of the case as a whole".  
23.	In section 100(3) of the 2003 Act, factors are set out which must be considered on the assessment of the "probative value of the evidence" for the purposes of whether it should be admitted under section 100(1)(b).  It is quite clear, in our view, that these convictions could not have "substantive probative value" in relation to the only matters to which they are said to be relevant, viz. the truthfulness of Yusuf's evidence or his violence on 29 August 2008.  
24.	The convictions relate to events which had no connection with the instant case.  They were years beforehand and there was no similarity between the conduct concerning those events and the present case.  In our view, the judge was correct to refuse to admit them.  The material concerning the other allegations, apart from convictions, also have no probative value at all, and, in addition, they would have been likely to divert the jury into useless satellite litigation.  
25.	The second ground now relied on is that the judge summed up the facts of this case in approximately 50 minutes in the second half of his summing‑up, which took place on the morning of 2 June 2009.  It is submitted that the summing‑up on the facts failed to put fairly the defence case, and the facts the defence relied upon; that the summing‑up generally skimped the facts; tended to treat evidence as if it were agreed facts and failed to draw to the jury's attention to certain inconsistencies in the evidence.  It is said the summing‑up therefore failed to deal with the seriousness of the factual disputes that had arisen in the course of the six‑week trial.  
26.	At paragraph 59 of counsel's advice on appeal, counsel for the appellant had listed some nine evidential matters which were said to be particularly important in relation to the defence and which it is said were not drawn specifically to the jury's attention by the judge in the course of his summing‑up, either sufficiently or at all.  
27.	In his oral submissions to the court, Mr Lewis has developed these submissions in relation to particular facts.  He draws specific attention to certain omissions by the judge, which he submits were crucial to the defence case.  Thus, he says, first, that there was only a passing reference to the fact that Mohammed Farooq's right little finger was injured and there was no reference at all to the medical evidence that this injury was almost certainly caused by a knife.  Secondly, he says that there was no substantial consideration of the evidence that there were splatters of Mohammed Farooq's blood on the trainers of Yusuf Khan, which could only have got there as a result of the injury to Mohammed Farooq's finger, which injury must have been caused by Yusuf's use of a knife.  Thirdly, Mr Lewis submits that the judge did not refer to supporting evidence from Yusuf's girlfriend that the appellant had said that he (the appellant) did not wish to fight.  
28.	It is not that often that this court is faced with a submission that the summing‑up was too short.  At an early stage of the judge's summing‑up when dealing with the law on unlawful killing, the judge had said expressly at page 19, lines 13 to 14, that "by no means is the evidence of all the witnesses you have heard, including the defendant, to the same effect".  The judge had also given the standard direction at pages 11 to 12 that, if he did not mention a particular piece of evidence that the jury thought important, that should be "brought to the attention of your fellow 11 jurors" for discussion and decision by the jurors when they retired.  
29.	At the start of his summary of the factual evidence on the second day of the summing‑up, the judge reminded the jury (at page 47, lines 8‑12) that experience showed that not everyone sees everything, and in some cases some people were concentrating on some things or people to the exclusion of other matters.  The judge then re‑emphasised that he was giving a summary or a review of the evidence, not a recitation of his notebook.  All of those directions were entirely proper and correct.
30.	We have of course read the summing‑up carefully.  We accept that the judge does not, in one place, set out the defence case, nor the particular facts on which the defence particularly relied.  To do so might have been a better course.  However, the fact is that the judge did refer to the appellant's evidence that he saw his brother's finger bleeding shortly before the fatal blow.  The judge also referred to the blood on Yusuf's trainers.  The jury also had in their jury bundle graphic photographs of the injury to Mohammed Farooq's little finger.  The judge did not link those facts to arguments by the defence.  But, in our view, he had no need to do so, particularly as the jury had heard counsel for the defence's speech so recently.  
31.	We accept that there is no reference to the girlfriend's evidence.  However, we also note that there was no submission by experienced leading counsel for the defence to the judge at the end of his summing‑up that the judge should have drawn the jury's attention to particular facts.  We are sure that all relevant inconsistencies and evidential matters, as well as argument, would have been drawn to the jury's attention in the closing speech of leading counsel for the appellant.  If there are, in counsel's opinion, important issues of fact or evidence, as opposed to argument concerning facts, that should go before the jury before they retire that the judge has not dealt with, then it counsel's professional duty to draw that to the judge's attention.  
32.	There is no ground of appeal that leading defence counsel failed in his duty at the trial.  If there had been, then we would doubtless have had an explanation from leading trial counsel why he did not ask the judge to draw to the jury's attention particular aspects of the facts on behalf of the defence.  
33.	We are satisfied overall that there were no material omissions that could possibly lead to the conclusion that this conviction was unsafe.  The vast majority of the points made in paragraph 59 of the advice on appeal are points of argument based on certain evidence of certain witnesses.  The judge was not obliged to remind the jury of counsel's specific arguments on the facts.  We therefore reject that ground of appeal.
34.	The third ground of appeal, which is linked with the second one, is that the judge failed properly to deal with the request of the jury, received at about 13.17pm on the day they retired, that the judge "repeat what he said about (a) provocation and (b) lawful/unlawful killing". 
35.	The judge had all his directions to the jury on his laptop, and he used his laptop to give those directions throughout the time he addressed the jury.  The wording of the repeated directions of law that the judge gave on provocation and lawful/unlawful killing are virtually word‑for‑word the same as those given in the body of his directions.  The description of the appellant's evidence, which is given at page 24, line 20 and following in the original summing‑up dealing with provocation is repeated almost verbatim at page 118 from line 1 when the judge repeated his directions.  Again, we note that no objection was taken to that description of the evidence of the appellant when it was stated by the judge, either on the first or the second occasion.  
36.	Mr Bayliss QC for the Crown submits in his written outline argument to this court that the judge's description of the appellant's evidence as given by the judge is accurate.  We have no transcripts to check it.  It cannot have been that inaccurate a summary or else we are sure that Mr Taylor QC would have raised an objection on the first occasion it was recited, and that junior counsel for the appellant would have raised the point when the judge redirected the jury, particularly as the wording used was the same on each occasion.  We therefore reject that ground of appeal.
37.	That brings us to the last ground, which is that the judge was wrong to permit the jury to listen to the tapes of the three emergency telephone calls that were made after 5pm on 29 August 2008.  As we have noted, the jury's request to do so came shortly after they had retired on 2 June once the judge had finished his summing‑up.  The judge heard submissions from counsel and then gave a reasoned ruling.  Trial counsel for the appellant had submitted that the jury should not be permitted to hear the tapes, noting that the Crown had not sought to play them and had not called the appellant's wife to give evidence.  
38.	Defence counsel at the trial submitted that the only reason that the jury might want to listen to the tapes as opposed to read the transcripts was to try and investigate the appellant's state of mind, which they might do in relation to the issues concerning intent and also provocation.  That, it was submitted, was an impermissible thing to do in relation to the tapes.
39.	The judge considered a number of reported cases in deciding the issue.  In particular, he considered the judgment of Lord Lane CJ in R v Riaz and Burke [1992] 94 Cr App R 339.  Those were two cases which were heard together in this court, and they concerned police interviews where the jury asked to listen to the tapes after they had retired to consider their verdicts.  Lord Lane pointed out that the tapes were the evidence in the exhibits, not the transcripts of the tapes.  Lord Lane said that, although the general principle was that the jury should not receive any fresh evidence once they had retired, that was not an inflexible rule.  In appropriate cases, if the jury had had the transcripts and requested after retirement to hear the tapes on which the transcripts had been prepared, they could do so, subject to safeguards.  The principal ones would be that they must hear the tapes in court and they must be given appropriate directions upon doing so.  
40.	The judge accepted that Riaz and Burke concerned police interviews.  However he came to the conclusion that, as the jury wished to review the "original material", as he put it, they could do so, albeit they must do so in court.  When the jury came into court to hear the tapes, the judge gave them a direction on their utility before they heard the tapes.  He emphasised that the defendant did not make the calls.  He said that the jury could only be concerned about what was being said by the person making the calls and the state of mind ‑ calmness, agitation and so forth ‑ of the individual making the call.  
41.	The judge then said: 
"Bear this well in mind, you should not then seek to say that because X was in a state of whatever, therefore this defendant was in a state of whatever, and so on.  
So, to that extent, the tape which you are now going to hear will demonstrate to you, I apprehend, as it were the state of mind and speech of the individual concerned." (See page 103 of the transcript) 
42.	The jury then listened to the tapes in open court and then retired to continue with their deliberations.  The submissions of Mr Lewis are that (1) the only purpose for which the jury could wish to listen to the tapes was to try to gauge the state of mind of the caller, and therefore from that to try and infer the state of mind of the appellant.  That was an impermissible exercise. (2) Because the tapes had not been played in the course of the trial, and as neither caller had given evidence on that aspect, the tapes themselves had not been the subject of any submissions from counsel.  Moreover, counsel were not given any opportunity to address the jury on this new material after it had been played.
43.	We have given this particular ground of appeal very anxious consideration for several reasons.  First, it is clearly still the rule that a jury should not receive evidence after it has retired to consider this verdict, except in exceptional circumstances.  Secondly, we accept that the tapes of these calls, not the transcripts, were the primary evidence, and that if either side had wanted to put the tapes before the jury, that should have been done in the course of the trial.  Thirdly, as the judge pointed out when giving his further direction to the jury, the tapes could not provide any evidence of the state of mind of the appellant, but only that of the caller.  Therefore, fourthly, it seems to us there was very little point in allowing the jury to hear the tapes because we cannot see what additional probative value the hearing of the tapes would have had, particularly at that late stage in the proceedings when they could not be connected with, for example, cross‑examination of the appellant on his state of mind.  
44.	Accordingly, we doubt that the judge's decision was the correct one in the circumstances.  However, we are quite satisfied that, with the judge's firm and careful direction, the decision to allow the jury to hear the tapes in open court did no harm to the appellant's case.  Although counsel did not have the opportunity to address the jury further because the playing of the tapes had no probative value, and as there was no specific point that counsel for the appellant could have put to the jury other than the one forcefully made by the judge in his direction, the appellant suffered no prejudice.  We are thus entirely satisfied that the decision and the playing of the tapes did not make this conviction unsafe.  Therefore, we reject that ground of appeal also.  
45.	Mr Lewis submitted that we must consider all these grounds of appeal altogether, as well as individually.  We have done so.  In our view, they do not, either individually or collectively, mean that this conviction is unsafe.  
46.	Accordingly, we must dismiss this appeal.
47.	Mr Lewis, we are very grateful for all your assistance. 
48.	MR LEWIS:  My Lord, thank you.  I am asked to invite your Lordships to consider one further matter.  As your Lordships will appreciate, Mr Lallie has appeared with me pro bono.  He was of course involved in the trial, and it was he who prepared the advice and grounds of appeal that have figured in this case.  In fact, my Lord, he had the benefit of a legal aid certificate for junior counsel only from 13 April until 24 May of this year, and then the Registrar extended the certificate for leading counsel alone, and I was instructed in place of Mr Taylor.  
49.	I have to say I have been very grateful for the assistance that Mr Lallie has given me.  He attended with me pro bono at a consultation at York Prison with the appellant, whom I had never met before.  I would invite your Lordships to consider extending the representation order for today's appearance to cover the attendance of Mr Lallie as well as myself.
50.	LORD JUSTICE AIKENS:  Yes, thank you.  (Pause)
51.	Mr Lewis, we are entirely sympathetic, and provided we have jurisdiction to extend it, then we will do so.
52.	MR LEWIS:  My Lord, I am grateful.