Case No: 201102302C5
Neutral Citation Number: [2011] EWCA Crim 2992
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
HHJ MAYO
T2007/7898
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/12/2011
Before :

LORD JUSTICE HOOPER
MR JUSTICE HOLROYDE
and
MR JUSTICE SUPPERSTONE
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Between :

	HARBANS SINGH	Appellant	
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	THE CROWN	Respondent	

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MR. D. LEDERMAN QC and MR. A. KANE for the Appellant
MR. A. MUNDAY QC for the Respondent

Hearing date: 14th December 2011
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Judgment
Lord Justice Hooper : 
1.	On 14th December 2011, the day following the hearing, we announced our decision that the appeal against conviction was dismissed.   
2.	We now give our reasons. On 31 March 2011 Harbans Singh (“Singh”) was convicted of conspiracy to cheat the public revenue after a trial in the Crown Court sitting at Birmingham, before HHJ Mayo and a jury. The conspiracy related to a massive mobile phone MTIC fraud, otherwise known as a carousel fraud.  Some idea of the size of the overall fraud is gained from the fact that, on the prosecution’s case, £18.9  million of input VAT was reclaimed from HMRC of which some £7.8 million was repaid.  Singh’s involvement was with a buffer company, H Communications (“H”). The fact that Singh received a sentence of imprisonment of four years’ imprisonment whilst the principal defendant in his trial, Bhabdeep Chahal, received a sentence of fourteen years’ imprisonment gives an indication of Singh’s role within the conspiracy.  Charanjit Chahal, Bhabdeep’s partner, had received a sentence of 15 years’ imprisonment at the first trial.
3.	It was accepted that Singh, the director of H, had participated in the running of H and that H was being used as one of a number of companies to commit the fraud. The issue therefore was whether Singh knew that H was being used to commit the fraud and the jury must have been sure that he did know.  One graphic piece of evidence which supported the Crown’s case against Singh was that the VAT returns signed by Singh showed a turnover of under £30,000 in the period up to March 2005 and, in the period covered by the indictment, showed that the turnover in mobile phones increased to over £10 million in the next quarter and to over £14 million in the following quarter. 
4.	To be guilty of conspiracy to cheat, the prosecution had to show that Singh had conspired with at least one other. The prosecution’s case was that he had conspired with members of the Chahal family, one of whom had been convicted at an earlier trial and one of whom was on trial with Singh and also convicted. At that earlier trial Singh had been a defendant, had given evidence and the jury had failed to reach a verdict. At the retrial before HHJ Mayo, Singh did not give evidence.
5.	In 1990 Singh had married Sarbjit Kaur Singh, a member of the Chahal family. Singh himself spoke little English and worked as a mini-cab driver. Sarbjit Singh was originally a co-defendant at the first trial. However the prosecution offered no evidence against her and she was acquitted. This was not revealed to the jury in the second trial, following a ruling by the trial judge to that effect.
6.	Both at the first trial and at the retrial Singh’s defence, as submitted to the jury by Mr Lederman QC, was (at least in part) that H was being run by his wife, that there was no evidence that she was a conspirator and that she was not named as a conspirator in the indictment. At the first trial Singh, in giving evidence, said that his wife ran the company and that his role was much less significant. The judge at the first trial gave the jury two possible routes to a verdict in the case of Singh. One route was an agreement with Sarbjit Singh and at least one other alleged conspirator and the other route was an agreement with at least one other alleged conspirator. By leaving the jury with the opportunity to find an agreement with Sarbjit Singh to cheat the revenue, the judge was giving the jury the opportunity to conclude, contrary to the submissions of Mr Lederman to the jury, that Sarbjit was a conspirator even though she was not named as such in the indictment.  
7.	At the second trial Mr Munday QC declined to add Sarbjit Singh’s name to the indictment as a conspirator.  At the close of the prosecution case Mr Lederman said that the prosecution had to take a position as to whether Sarbjit was a conspirator. Mr Munday replied that “we do not know whether she is or is not, we do not have the evidence, otherwise ...”.  He went on to say (in effect) that if evidence came to light to suggest that she was “then I will act appropriately, but unless and until that occurs the Crown maintains its stance and will not be forced into doing something that it ...”. The transcript then reads:
JUDGE MAYO: So at this point there is no application to add either ... Mr Harban Singh’s spouse on the indictment?
MR MUNDAY: There is not, no.
JUDGE MAYO: Well, that is no doubt a considered position and you know the consequences of either not doing that now.
8.	Mr Munday tells us that, at this stage, there was in the view of the prosecution insufficient evidence upon which a jury could properly conclude that Sarbjit Singh was a conspirator. 
9.	Bhabdeep Chahal was then called to give evidence. He was cross-examined by Mr Lederman about the role played by Sarbjit Chahal in the running of H. The effect of the evidence of Bhabdeep Chahal was that Sarbjit was responsible for making the money transfers and that her handwriting was to be found on many documents recording transactions.  As becomes clear in the summing-up, the effect of Bhabdeep Chahal’s evidence was that he was less involved than the evidence might otherwise suggest. In cross-examination Mr Munday did not suggest to Bhabdeep Chahal that Sarbjit Singh was a co-conspirator.
10.	Mr Munday accepted before us that if the jury were to accept Bhabdeep Chahal’s evidence about Sarbjit’s role in H, there was now evidence upon which a jury could properly conclude that Sarbjit Singh was a conspirator. Mr Lederman also agreed that by now, if not before, there was evidence upon which a jury could properly conclude that Sarbjit Singh was a conspirator.
11.	Mr Munday however also took the view that Bhabdeep Chahal was not a witness of truth and thus he was not prepared to tell the jury that they should accept the evidence of Bhabdeep Chahal as to the role of Sarbjit Singh.
12.	The retrial had, in relation to the role of Sarbjit, reached a similar position to the position reached at the first trial when evidence similar to that given by Bhabdeep Chahal as to the role of Sarbjit had been given by Singh himself. 
13.	Although the situation had changed in the light of Bhabdeep’s evidence, nothing was said at that stage by anyone about the change. 
14.	Mr Lederman then announced that he was not calling Mr Singh or any other evidence.
15.	After all the evidence and before the speeches, the judge discussed his proposed directions with counsel.
16.	Mr Lederman asked Mr Munday whether it was going to be suggested that Sarbjit was a conspirator. Mr Lederman said:
Well, I am not trying to make life complicated for myself, or the court, I do not.  I can rhetorically ask Mr Munday whether there is going to be any suggestion that Sarbjit Kaur was a conspirator.  My respectful submission is that there is no evidence that Sarbjit Kaur was a conspirator and indeed, Mr Munday has firmly suggesting, and we have a note; probably a similar note to Your Honour, of Mr Munday’s cross-examination of ... Chahal was firmly to suggest that everything, if I can be colloquial, was down to ... Chahal.  And insofar as Sarbjit Kaur did anything, she did anything under the instructions of ... Chahal and no suggestion was put to ... Chahal that Sarbjit Kaur was conspiring with him, indeed, the reverse.  
....
I just want confirmation that at this stage of the case no one is going to suggest that Sarbjit Kaur was a conspirator and as Your Honour may recall at the close of the case submissions were made, and if ever there was a stage when Mr Munday could have made submissions that she should be named as a conspirator it was then.  Your Honour enquired if that was so and the Crown declined to make that offer and it would be wrong in law and wrong in fact, by fact I mean the nature of my learned friend’s cross-examination, which began at one stage, and I have a note of it: “The proposition I put to you Mr ... Chahal, is that you were responsible for all the deals both in terms of the actual purchases/sales and the payment of the HComm Communications transactions.”  That proposition is, as I understand it, the Crown’s case re [Chahal] and that being the case there cannot be any suggestion that this lady was anything other than like a secretary conducting whatever she was told to do by ... Chahal on a [inaudible] basis.
17.	Mr Munday replied:
It is the Crown’s -- the Crown does not have a case that she was or was not a conspirator.  There is insufficient material for the Crown to reach a judgment and therefore, I would not be seeking to suggest that she was or was not.  There is no need for me to have to do it if she is not on trial.
...
I would be inviting the jury to look at what the Crown can prove against Harbans Singh and his relationship with ... Chahal and the position of the wife is irrelevant, from our point of view.
18.	The judge said that he would have to remind the jury that Singh could not be guilty of a conspiracy if he had only conspired with his wife.
19.	The transcript reads:
JUDGE MAYO:  But you see Mr Lederman asked Mr Chahal a lot of questions about what Sarbjit Kaur had done and identified her handwriting, effectively laid the way clear, quite rightly, nothing forensically wrong with it at all, to say, to suggest in his closing address to the jury; “Well all of this has got Sarbjit’s fingerprints on it.”
MR MUNDAY:  Bold submission.
JUDGE MAYO:  Well, I am not concerned about what is bold and what is not, I am concerned about what Mr Harbans Singh’s case is, because I must leave it to the jury and I have to deal, do I not, with what do the jury, what do they do if they think that Sarbjit Kaur is an active participant in H Comm.
MR MUNDAY:  If Your Honour feels that that is appropriate then Your Honour will have to deal with it in this way, that -- the way in which you (sic) have dealt with on the last occasion, namely that if they came to the view that she was a conspirator then they could not find Harban Singh guilty if he only allegedly, and I put it in inverted commas “conspired with her.”
JUDGE MAYO:  Yes.  Well that is what I am going to do.
20.	Mr Lederman was very unhappy at this development. He referred the judge to a passage in Archbold (33.46) to the effect that if there is a reference in the indictment (as there was) to conspiring with persons unknown, then, once an alleged conspirator becomes known, the indictment should be amended accordingly.  His principal complaint was against Mr Munday. He should have made an application to name Sarbjit as a conspirator. He should have cross-examined Chahal to this effect. It was for the prosecution to show that she was a conspirator. He described Mr Munday’s position as sitting on the fence. He continued:
I can categorically tell the court and I say this simply because I feel duty bound, that my advice to Harbans Singh not to give evidence was based upon the cross-examination by Mr Munday of the first defendant, because I heard it, I noted it.  I noted how ... Mr Munday was putting to ... Chahal his, Mr Munday’s response, to Sarbjit Kaur when ... Chahal was saying: “Actually, Sarbjit Kaur did some of the work, actually Sarbjit Kaur did,” and Your Honour in fact, if you remember, he said: “Later on she did some of the work,” and Your Honour said: “When was that,” and this matter was canvassed, and all the time Mr Munday’s position was: “You are offloading this, if you like, onto Sarbjit Kaur.  Actually you were the person.”  And that is why one has as one has.  In the s. 34 [adverse inference] submissions by Mr Munday, the fact that he, ... Chahal, has raised Sarbjit Kaur in evidence, but not in interview, is a subject which they are entitled to comment on the basis that it is not true.
21.	A little later the transcript reads as follows:
JUDGE MAYO:  ... my view is that there is evidence that [Sarbjit] acted as a conspirator.  Now the question is whether I am prevented or it would be wrong of me to tell the jury that, because of the stance that has been adopted by the Crown and you would say that potential evidence that she is a conspirator should not be put before the jury in my summing up, because the Crown have chosen not to say that she is a conspirator.
MR LEDERMAN:  Precisely, that is precisely it and the Crown were offered their chance and specifically declined it.  And in addition, Your Honour, this is -- and I hope the court accepts this from me, this is not in any way meant to be a sort of blackmail submission -- I can categorically say to the court from the Bar, that our advice to Mr Harbans Singh as to whether he should give evidence or not, proceeded on the basis that after the cross-examination of ... Chahal when Mr Munday made quite clear his position, the decision not to call my client was wholly influenced by the way Mr Munday had conducted that cross-examination.
22.	In accordance with his rulings, the judge directed the jury in the following way:
When you consider the case for and against Harbans Singh it will necessarily involve careful consideration of the available evidence as to what Sarbjit Kaur (his wife) did or didn’t do.  It may be tempting to ask yourselves whether Harbans Singh could possibly be guilty, because his wife has not been tried alongside him.  The answer in law is that he can be guilty if you’re sure of the matters I’ve set out earlier -- participation, knowledge, dishonesty -- and the fact that his wife has not been tried is quite simply irrelevant.  This fact cannot on its own provide Mr Singh with a shield or some form of insulation from blame.  You will have to look very carefully at the evidence of participation of Sarbjit Kaur, and if you conclude that she may have played a role in this conspiracy then add her to the list of conspirators who are not being tried by you, and they are on the indictment.  But that in itself will not mean that Harbans Singh is more or less likely to be guilty himself.  It’s one of the matters that you must weigh up as you consider the evidence as a whole.  (Underlining added)
	Before deciding whether Harbans Singh is guilty there’s a particular matter of law that you must take into account.  A husband and wife are not guilty of conspiracy if they alone are the parties to the conspiracy.  You don’t have to worry about why.  That’s what the law is.  So if there’s only two people in a conspiracy and they’re married they can’t be guilty of conspiracy.  If, however, they conspired together and with at least another person then both husband and wife can be guilty of conspiracy.  
	So in Harbans Singh’s case the test is a little different from it is with Mr Chahal and Mr Mallourides, and these are the questions you must ask yourselves: are we sure that there was a conspiracy?  If yes, are we sure that Harbans Singh participated with his wife and at least one of the conspirators named on the indictment -- in other words, not just her -- or are we sure that Mr Singh, along with at least one of the conspirators named on the indictment, participated in this conspiracy, and was that done with the intention of defrauding the revenue?  If yes, did he do so knowing that the result was likely to lead to the revenue being defrauded?  If yes, did he do so dishonestly?  Again, if the answer to all of those questions is yes he’s guilty.  If not, he’s not guilty.
23.	As can be seen from the last paragraph the judge gave the jury the same two routes to verdict as the judge had given at the first trial.
24.	Mr Lederman did criticise the use of the word “may”, but the judge made it clear in the following paragraph that the jury (on the first route) had to be sure that Harbans Singh participated with his wife.
25.	Mr Lederman repeated before us his criticism of Mr Munday. We do not accept the criticisms of Mr Munday. His case was that Harbans Singh had conspired with the Chahals and the position of the wife was irrelevant. Mr Munday did not accept the evidence of Bhabdeep Chahal and was not prepared to invite the jury to find, on the basis of his account of the role of Sarbjit, that she was a conspirator. Mr Munday was entitled to take that view.
26.	Was the judge entitled, in the absence of a request by Mr Munday to amend the indictment to name Sarbjit Singh as a conspirator, to tell the jury that they could convict on the basis of being sure that Singh participated with his wife and at least one of the conspirators? It is important to note that unless Singh conspired with a named conspirator he could not be convicted (although the indictment referred to person unknown, the issue was whether Singh had conspired with Charanjit Chahal and/or Bhabdeep Chahal).  Thus, unless the jury were sure that Singh had conspired with Charanjit Chahal and/or Bhabdeep Chahal, as the prosecution alleged that he had, then Singh could not be convicted.  
27.	Mr Lederman referred us to the authorities dealing with judges putting an alternative case to the jury referred to in Blackstone, para. D18.40. Of these authorities Falconer-Atlee (1973) 58 CR. App. R. 348 is probably the best known.  Mr Munday referred us to Evans (1990) 91 Cr. App. R. 173 and Williams (1994) 99 CR. App. R. 163.  In the latter case the Court (page 167) referred to cases where the respective courses adopted by the prosecution and the defence present the jury with an incomplete range of options open to them in arriving at their final determination.  “In these cases the judge may be under a duty to direct the jury on a version of the facts which neither the prosecution nor the defence has advanced”. 
28.	In our view the judge was entitled in the unusual circumstances of this case to take the approach which he did, unless to do so prevented the appellant from having a fair trial. We turn therefore to that issue.
29.	Mr Lederman submits, as he did to the judge at the time, that he might have called, or might well have called or in all probability would have called his client and/or Sarbjit Singh had he known that the judge might, of his own motion, have left to the jury the issue of whether Sarbjit was a conspirator. We do not accept that submission.  Mr Lederman was aware of what happened at the first trial when almost exactly the same situation had arisen. If he had wanted assurance from the judge, the time to seek that assurance was after Chahal had given evidence. We note also that in the discussions about the contents of the summing up, Mr Lederman was still uncertain as to how the prosecution would put its case (see paragraph 15 above). He was hoping to obtain the tactical advantage of being able to say to the jury, without contradiction, that Sarbjit was more involved than Singh was in running the company (albeit that he knew about the almost unbelievable dramatic increases in turnover), that she was not a conspirator, and that she had not been named as such.  It was however open to the jury to conclude, from the evidence as a whole, that Sarbjit was a conspirator even though the prosecution were not seeking to allege that she was.  It was not unfair to Singh for the judge to tell the jury that they were entitled so to conclude, and to direct them as to the law relating to a “conspiracy” involving only a husband and wife.   
30.	For these reasons we dismissed the appeal.