Neutral Citation Number: [2012] EWCA Crim 1075
Case No: 201106402C3 & 201106407C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARDIFF
HHJ DAVID WYNN MORGAN
T20100824
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 18/05/2012
Before :

LORD JUSTICE HOOPER
MR JUSTICE COOKE
and
MR JUSTICE BEATSON
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Between :

	(1)	TOLGA YAMAN
(2)	CENAZ CEVAZ YAMAN	
Appellants	
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	THE CROWN	Respondent	

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(Transcript of the Handed Down Judgment of
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MR. C. DIGBY for the Appellants.
MR. N. GOBIR for the Respondent.

Hearing date: 1st May 2012
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Judgment

Lord Justice Hooper: 
1.	On 20 October 2011 in the Crown Court at Cardiff (HHJ David Wynn Morgan) Tolga Yaman was convicted of one count of wounding with intent to do grievous bodily harm (count 1) and one count of having an offensive weapon (count 4).  The jury were discharged from bringing in a verdict on count 2 which charged, as an alternative to count 1, an offence of wounding. 
2.	On the same date, his mother, Cenaz Yaman, was convicted of one count of doing an act tending and intended to pervert the course of public justice (count 3). Cenaz Yaman was acquitted of count 5 charging Damaging property.
3.	The appellants were given leave to appeal on ground 1, which related to the admittedly wrongful admission into evidence of material concerning what can loosely be described as the alleged bad character of the Yaman family. Ground 2 concerned the judge’s directions on the issue of “self-defence” in relation to Mr Yaman. The single judge refused leave on that ground.
4.	During the course of the hearing we granted the appellant Mr Yaman leave to appeal on the second ground which related to counts 1 and 4. We also announced our intention to quash Mr Yaman’s conviction on count 4. In a written note we set out our understanding of the facts, the key parts of the cases of the appellant and the prosecution, and gave our provisional view that the trial judge had misdirected the jury on count 1 and invited submissions.  Mr Gobir, for the respondent, expressed his concurrence with the contents of the document and the provisional views.  We decided to hear further argument on the issue of the safety of the conviction in the light of those misdirections.  Having heard those arguments we reserved this issue and have now received further submissions from the parties.   We did not need to call upon Mr Gobir to respond on ground 1 of the appeal nor on the safety of the conviction of Mrs Yaman.
5.	The Yaman family business, a late night kebab shop, operates from premises in North Road, Cardiff. On 13th July 2010 at approximately 10.30 am a warrant officer (Brian Collins), a gas engineer (Andrew Steer) and a locksmith (Geraint Jones) attended the premises to execute a distress warrant to disconnect the gas meter following alleged non-payment of gas bills. They lifted the shutter part way and entered the property. Whilst they were inside the premises the appellants drove past and noticed the shutter was lifted. The prosecution’s case was that Mr Yaman approached the premises armed with a hammer (count 4).  He deliberately hit Geraint Jones (the locksmith) with the hammer causing a gash to the forehead which required stitching (count 1). Mrs Yaman disposed of the hammer which was never found (count 3). 
6.	It was the defence case that Mr Yaman was not in possession of a hammer. He admitted going at least partially into the premises and striking out at someone in the premises (whom he may or may not have made contact with) but stated he was acting in self defence.  Mrs Yaman denied seeing a hammer or removing any hammer from the premises. The jury were sure that the appellant did have a hammer and that Mrs Yaman had removed it from the premises.

7.	Our written note to counsel (slightly amended) observed:
i)	It was undisputed that the appellant believed as he exited the car that there had been a burglary of the Kebab shop or that a burglary was taking place.  
ii)	It was the respondent’s case that the appellant took a hammer from the car because a burglary was taking place. The appellant disputed taking a hammer but the jury were sure that he had done.
iii)	The directions given by the judge in so far as Count 4 was concerned were, it is agreed, inadequate (for reasons which we shall explain later in this judgment) and the conviction on count 4 must be quashed. 
iv)	It was undisputed that on entering the small enclosed Kebab shop the appellant thought that the three men inside the Kebab shop were burglars. 
v)	Thus the appellant’s liability in respect of counts 1 and 2 had to be determined on the basis that the three men were burglars and not connected with the gas company.
vi)	Notwithstanding that the appellant’s liability had to be determined on the basis that the three men were burglars, the judge in answering a question from the jury wrongly left it to the jury to decide whether the appellant’s belief that they were burglars was reasonable and whether he had the belief (see page 40 E-H and 41A).
vii)	It was the respondent’s case that the appellant, believing that the three men were burglars, decided to punish the burglars and that there was no issue of self-defence.
viii)	It was the appellant’s case that he believed that a burglar was going to attack him or his mother, alternatively, that the burglars were trying to escape (26B-C and 42 E). 
ix)	At no stage during the summing up did the judge explain to the jury what we have set out in paras. i), iv) and v).  Indeed in so far as iv) and v) are concerned the judge misdirected the jury in a material manner- see para.vi). 
x)	At no stage in the summing-up did the judge tell the jury that they had to approach the case on the basis that the three men were burglars and, in the light of that, to ask themselves what was or may have been in mind of this 18 year old of good character when he used the hammer. 
xi)	It follows that the conviction on count 1 must be quashed unless the prosecution can show that the jury would inevitably have reached the same conclusion had the jury been properly directed in accordance with what we have set out above.
8.	In order to direct the jury properly, the judge had to direct the jury in the light of section 76 of the Criminal Justice and Immigration Act 2007, which is helpfully analysed in Smith and Hogan’s Criminal Law, 13th Ed., Professor Ormerod, page 379 and following.  Section 76 was introduced in response to public disquiet about the alleged narrowness of the defence of persons and property, as well as the defence of arrest and prevention or crime, which Professor Ormerod calls “Public and Private Defence”. It is unfortunate that no reference was made to section 76 until after the jury, during their deliberations, sent a note asking:
“Is thinking a person in your property is a burglar a lawful excuse for causing a wound? That is to say self-defence?”
9.	The judge considered the first sentence to be a question about defence of property which was not the appellant’s defence. The judge stated “Now the short answer to your question is No”, but he said the question merited a slightly longer explanation and later gave it. We return to it at paragraph 27. 
10.	Section 76 makes it clear that the trigger for using force is assessed subjectively and the defendant’s response is to be assessed objectively.  Thus if a person uses force in the belief that he is being attacked, then his response must be assessed objectively in the light of that subjective belief. Section 76(3) provides:
“The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.” (Emphasis added) 
11.	Section 76(4) provides:
“If D claims to have held a particular belief as regards the existence of any circumstances— 
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but 
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not— 
(i) it was mistaken, or 
(ii) (if it was mistaken) the mistake was a reasonable one to have made.”
12.	Section 76(7) provides:
“In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)— 
(a) ...  
(b) that evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.”
13.	 No reference was made by the judge to section 76(7)(b). If the jury reached the conclusion that the appellant was only doing what he honestly and instinctively thought was necessary faced by three burglars (as he believed them to be) for public or private defence,  then that constitutes strong evidence that only reasonable action was taken. 
14.	The judge said this to the jury regarding self-defence:
“What if in fact you think he did or may have struck Mr Jones in self-defence?  If you think he did, or may have been acting in self-defence, you will find him not guilty.  And because the prosecution must prove that he is guilty, it is for the prosecution to prove that he was not acting in self-defence, not for him to prove that he was.  You must consider the question of self-defence in the light of the evidence of the situation in which Mr Yaman honestly believed himself to be. 
So your first question is this, did he honestly believe that it was necessary to use force to defend himself at all?  That would not be the case if he was the aggressor, or he was acting in revenge, or knew that he did not need to resort to violence.  If you are sure that he did not honestly believe that it was necessary to use force to defend himself, he would not have been acting in lawful self-defence, and it would not be necessary for you to consider the matter any further.  But you may think that he did honestly believe, or may honestly have believed that it was necessary to use force to defend himself, in which case you have to ask yourselves was the amount and the type of force that he used reasonable?  Obviously a person who is under attack cannot be expected to work out exactly how much force they need to use to defend themselves.  A person who is under attack may react on the spur of the moment.  On the other hand, if they go over the top and use force out of all proportion to what is necessary, or the anticipated attack upon him, then the force used would not be reasonable……. So take into account what Mr Yaman says about the quality of what he anticipated and what he did.” (pages 10B – 11B)
15.	The judge did not say – given that there was no dispute that the appellant believed that the three men were burglars – that the jury must approach the case from the point of view of the appellant, namely that the three men were burglars and, for example that he was 18 years old and outnumbered.  Indeed, as we shall show later, he left open for the jury to decide whether the appellant believed that the men were burglars.
16.	After referring to the appellant’s evidence that he did not think about what Mr Jones was doing and that what he did was just an instinctive reaction, the judge returned to the issue of unreasonable force saying:
“If you find that [Mr Yaman] believed that it was necessary to use force, but are nevertheless sure that the force he used was unreasonable, then he cannot have been acting in lawful self defence. But if you think that the force he used was or may have been reasonable, he is entitled to be found not guilty.” (page 42F)
17.	The judge had summarised the appellant’s case in this way:
“The defence case is that Mr Yaman had seen that the shutter doors were partially lifted. He immediately jumped to the conclusion that the premises had been burgled.  He went to investigate, not suspecting that there would be anybody in the premises at that particular time.  On entering, or attempting to enter, he was completely taken by surprise by the presence of three complete strangers, none of them wearing a uniform or anything of that sort, and one of whom, the gas fitter, had a metal implement in his hand.  As an instinctive reaction he lashed out with his fist in the direction of the nearest of these men.  If in fact he struck him what turned out to be a heavy blow to the face, that was an attempt variously he said to get out of the shop and protect himself, to get Mr Jones away from him, to protect his mother. That is what he said.  
He then said, “Well in fact I didn’t think about what Mr Jones was doing, what I did was just an instinctive reaction.”  And he acknowledged that his mother certainly was in no immediate danger when he struck out at Mr Jones.” (pages 11E – 12A)
18.	The judge in a later passage (page 26B –C) also reminded the jury of the appellant’s concern that the men “might get away”.
19.	As to count 4 the judge said:
“Now no lawful authority or reasonable excuse is suggested here for his possession of a hammer.  Prosecution case is clear, he had it with him to teach a lesson to anyone he found on the premises. As a matter of law that is not a lawful purpose or reasonable excuse. We may be very cross about the fact that there may be a burglar in our premises, we are not allowed to take a hammer and go after them with it.  
The defence case is not that he had lawful authority or reasonable excuse for possession of a hammer.  It is not suggested on Mr Yaman’s behalf that he was entitled to take a hammer against anybody who happened to be on his premises.  Quite the contrary, the defence case is simply this, he did not have a hammer on him at all.  If you are sure upon the evidence that he is guilty, you will find him guilty.  If you are not sure, you will find him not guilty.” (page 12E – H)
20.	Mr Gobir rightly accepted that the judge should have directed the jury as to the elements of count 4 if they were sure that the appellant was carrying a hammer.  In deciding whether the appellant had a reasonable excuse, the judge would have to have explained in some detail the principles relating to defence of person and of property and the defence relating to the enforcement of the law.  This he did not do.  In the absence of such a direction and on the facts of this case, the conviction on count 4 is unsafe. Indeed the passage reads as if the judge was telling the jury to convict of count 4 if the appellant was carrying a hammer.  
21.	Having been misdirected about count 4, we do not know how if at all the verdict on count 4 affected the jury’s verdict on count 1.  If the appellant had no reasonable excuse for carrying the hammer, why, a juror might think, would he have a defence to using the hammer?
22.	In summarising the appellant’s evidence the judge later said:
“On the day with which we are concerned he was going into Central Cardiff to raise a deposit to put on a business. That business being, we understand, a restaurant in Park Lane.  Thereafter he had an appointment in London which he was going to keep.  But as they drove down North Road they noticed that the shutters on their premises were up.  So he turned left into Crown Way, turned round, drove back to the premises, parking on the kerb.  He alighted from the car, taking nothing with him. He went down to open the shutter door. He bent down to do that.  Nothing to suggest why the shutter would be up.  He didn’t see any van with flashing lights whilst he was doing all of this.  His intention was to shut the doors, front and rear, secure the place and then get off to keep his appointment.  
He saw a man sitting down looking towards the gas meter.  He was frightened for his life because he hadn’t expected to see anyone, and he realised there were three men in the room, one of whom had a metal implement. He was scared for his life, he said. He punched or pushed the man and shut the door, holding it to to keep it closed.  His intention was to get out of the shop and protect himself. He was not intending to go back into the shop.  He held the door closed. He could see parts of the floor through the shutter.  At the time he thought these men were burglars. He asked them what they were doing there, and they said they had a warrant, but he was never shown a warrant.
He held the door for a few seconds and then said, ‘I’m coming round the back’. The car was round the corner. He went round the side where he saw his mother, whom he accompanied through the shop from the rear entrance to the front. …The men had left”. (pages 25C – 26A)
23.	The appellant accepted in cross-examination it was not the first time the premises had been burgled but he said that he did not suspect on entering the premises that there might still be burglars there.  
24.	After the jury during their deliberations had sent the note to which we have already referred, and after further argument, the judge said this:
“Your question is this, “Is thinking a person in your property is a burglar a lawful excuse for causing a wound?   That is to say self defence?”  Now the short answer to your question is No.  But in fairness to you it merits a slightly longer explanation than that. So with the agreement of counsel what I am going to do is to remind you of my direction upon self defence, and then give you a very short further direction in answer directly to your question. Alright?
Now, if you think that Tolga Yaman was or may have been acting in lawful self defence, he is entitled to be found not guilty.  Because the prosecution must prove his guilt, it is for the prosecution to prove that he was not acting in lawful self defence, not for him to establish that he was.  You must consider the matter of self defence in the light of the situation in which he honestly believed that he faced.  Pausing there, he told you in evidence that his belief was that these men were burglars. That happens to have been a mistaken belief.  But the reasonableness or otherwise of that belief is a question that you will need to take into account in deciding whether or not you are sure that he actually believed that.  He does not have to prove that he believed it, but if you think that he believed it, or are sure that he believed it, well that is a factor which you have to take into account, and you will need to look into the reasonableness of that belief. 
If you are of the opinion that he may have held that belief, or are sure that he held that belief, well in those circumstances whether or not it was mistaken, or if it was mistaken whether or not it was reasonable, is still a matter which you have to take into account But nevertheless the amount of force which he used in the circumstances is not to have been reasonable in the circumstances, even if he thought this was a burglar or a collection of burglars, if the amount of force that he used was in fact disproportionate to the circumstances.”  (Emphasis added) (pages 40B – 41A)
25.	As Mr Gobir rightly accepts, the judge should never have said to the jury that they should decide whether the appellant believed that the three men were burglars.  That was not an issue in the case.  Thus the jury were being told (whilst they were deliberating) to decide whether the appellant thought the three men were burglars and in deciding that question “you will need to look into the reasonableness of that belief”. That was coupled with the disparaging words “even if he thought that this was a burglar or a collection of burglars”.  The judge is all but telling the jury to decide whether the belief that they were burglars was reasonable, which he should not have done since the existence of that belief was not in issue. Had it been, although (see Faraj [2007] EWCA Crim 1033) a defendant is entitled to be judged on the basis of an honest belief even if it is objectively unreasonable, the reasonableness of such a belief was a matter the jury could consider, in accordance with s 76(4)(a), when  assessing whether the defendant had held that belief. In the circumstances, however, the judge misled the jury, since there was no issue that the appellant thought that the three men were burglars.
26.	Mr Gobir submits that the jury must have known that the prosecution’s case was that the appellant believed that the three men were burglars and that the jury should proceed on that basis. But, if the judge had forgotten that or did not understand that, how can we be sure that the jury did?
27.	It is necessary to consider the later parts of the summing up. In the passage that immediately follows the passage we have quoted at paragraph 24, the judge stated: 
“In other words your question then would be, okay so he thought they were burglars, is what he did, is the way that he reacted reasonable in the circumstances?  That is the point.  So, your first question is to ask did he honestly believe that it was necessary to use force to defend himself?  That would not be the case if he was the aggressor, he was acting in anger or revenge, or knew that he did not need to resort to violence.  Now, if you are sure that he did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self defence.  But if you think that he did honestly believe, or may honestly have believed, that it was necessary to defend himself, the question then arises as to whether the type and amount of force that he used was reasonable in the circumstances.” (page 41A – D)
28.	After summarising the prosecution’s case and the appellant’s evidence the judge reverted to the jury’s question and gave what he had described as “a slightly longer explanation”. He said: 
“Now, the first thing to say in answer to your question is this.  It is no part of Tolga Yaman’s defence that he struck out at the person that he saw adjacent to the door of the premises because he sought to defend the premises from any anticipated attack. He has never said, in fairness, that it was in effect justification. The fact that there were burglars there, he has never said that was justification of itself for his using force against anybody.  His case is that if he anticipated anything it was a physical assault upon his person, not the property.  
The second thing is that even if he asserted that he had used force upon a trespasser in purported defence of his property, the law says that he must have asked the trespasser to leave before he would be justified in laying a hand on that person. And secondly, even if the trespasser declined to leave, he would be only entitled to use reasonable force upon that person in the circumstances.  So, the answer to your question is in the particular circumstances of this case, No.  Simply thinking a person in your property is a burglar is not a lawful excuse for causing a wound.”  (pages 42G – 43G)
29.	In these passages the judge was seeking to deal with the issue of defence of property, which might have been in the jury’s mind when asking the question. This, however, was not the appellant’s case. His case was always one of self defence, not one of defence of property, although he had, at one point mentioned his concern that the men “might get away”.
30.	The judge told the jury that on the facts of this case the short answer to their question was “No”.  He said: “Simply thinking a person in your property is a burglar is not a lawful excuse for causing a wound.” That was the correct answer to the first part of the note but it was misleading because it took no account of the second half of the note. The jury had asked: “Is thinking a person in your property is a burglar a lawful excuse for causing a wound?   That is to say self defence?”  A more accurate summary answer to the entire question should have been “’Yes’ in certain circumstances”. This is because self defence could only arise if a person considered himself to be under threat of attack. It was for this reason that the judge rightly considered that his short answer required expansion.  With the agreement of counsel he then repeated his direction on self-defence in terms to which we have already referred. 
31.	The question which the jury should have been asked was whether the appellant, as an 18 year old, honestly believed or may have believed that it was necessary to use force to defend himself in the circumstances as he believed them to be, namely and in particular finding three burglars in the family shop.  Instead of asking this simple question the judge directed the jury to decide an issue which was not in dispute, namely whether the appellant believed that they were burglars. Indeed the judge misled the jury (see paragraph 25) by all but directing them to decide whether the appellant’s belief that the men were burglars was reasonable when what is relevant was the genuineness of his belief not its reasonableness. 
32.	Because he had not asked the jury the simple question which he should have asked, the judge also got the next question wrong. He should have directed the jury to consider the reasonableness of the force used in the circumstances as the appellant believed them to be, namely and in particular finding three burglars in the family shop. Nor did the judge direct the jury as to section 76(7)(b).
33.	It follows that the conviction on count 1 (as well as count 4) must be quashed unless the verdict is otherwise safe. 
34.	Although the prosecution’s case was that the appellant was punishing burglars and not acting in self-defence, Mr Gobir now submits that the jury’s verdict is safe because, on the assumption that the appellant was acting in self defence, the jury would necessarily have reached the conclusion that the use of a hammer in self-defence was unreasonable.  He has to make that submission on the basis that the appellant’s account of what he believed and why he acted as he did was or may be true. We say that because it is for the jury and not us to decide whether his account was or may have been true and this court must take care in avoiding ascribing to the jury the conclusion that it would reach in relation to what has been described (see Keane [2010] EWCA Crim 2514 at [5(3)]) as a critical question for the jury. 
35.	In the light of this submission we ask this question: “On the assumption that appellant honestly believed or may have believed that it was necessary to use force to defend himself in the circumstances as he believed them to be, namely and in particular finding three burglars in the family shop, would the jury inevitably have found that the force actually used was unreasonable if the jury had been properly directed?”
36.	Our starting point is that the jury must have found that the appellant hit the victim Mr Jones with the hammer intending to cause grievous bodily harm. The undisputed evidence of the three men was to the effect that, as they were there to change the meter, the appellant had ducked in under the shutter, opened the door and leaned in with a hammer and hit Mr Jones who was seated, on the head with that hammer, which then dropped to the floor.  The appellant immediately retreated backwards but then tried to get back in whilst one of the three, Mr Steer, held the door shut to keep him out.  The police were called whilst the appellant was still outside shouting, being very aggressive and angry that the men were inside the premises.  Mr Steer responded that they had official business and had a warrant. The appellant then said he was going round to the back and walked away.
37.	The police appeared very quickly. PC Saltmarsh’s evidence was that Mr Jones was bleeding heavily from a wound to the head but pointed to the appellant, identifying him as the man who had hit him.  The appellant was arrested and cautioned.  On being asked why he was arrested he was told “section 18 assault, hitting someone with a hammer”.  His answer was “I thought he was burgling the shop”.  
38.	As we have seen section 76(7)(b) states that “evidence of a person's having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose”.  The jury not having been asked this question, we must assume that the defendant only did or may only have done what he honestly and instinctively thought was necessary.
39.	Nonetheless we have reached the conclusion, after anxious consideration, that the jury would have inevitably found that the appellant used more force than was reasonable. The use of a hammer with intent to cause grievous bodily harm, immediately upon entry into the shop, on a man seated by the door in circumstances where (on the appellant’s account) none of the three had acted in an aggressive manner albeit one had a metal implement, cannot be seen as a proportionate use of force. We say this on the assumption that the appellant honestly believed or may have believed that it was necessary to use some force to defend himself in the circumstances as he believed them to be, namely finding three burglars in the family shop, and on the assumption that the appellant did or may have done what he honestly and instinctively thought was necessary. 
40.	For these reasons, in relation to this ground, we consider the verdict safe despite the many misdirections by the judge.
41.	We turn to ground 1, which related to the admittedly wrongful admission into evidence of material concerning what can loosely be described as the alleged bad character of the Yaman family, and on which permission to appeal was given. We consider that, for the following reasons, there is no merit in this ground.
42.	Mr Collins, called by the prosecution, said in evidence that on earlier occasions the family had not settled their account with British Gas. Mr Gobir accepted at the time that the witness should not have said this. Mr Digby made an application to discharge the jury, an application which the judge rejected taking into account how he would direct the jury about this evidence. In his summing-up the judge said:
“Now prior to Mr Collins giving evidence, there has never been any suggestion that Mr and Mrs Yaman’s family have on earlier occasions during their tenancy of these premises failed to settle their account with British Gas. That has never been part of the evidence, and if it was going to be said, the prosecution would have had to have asked the permission of the Court to lead that evidence because it might be thought to put them in a bad light, and there are rules about evidence which tends to impugn the character of any witness.  So, the fact that the defendants’ family may or may not have paid the gas bill on an earlier occasion has absolutely nothing to do with any of the issues that you have to determine, and I direct you to put that evidence from your minds when considering the case as a whole.”
43.	Mr Digby submits that we cannot be sure that the jury would have done so. We have no reason to believe that the jury would not have followed this clear and obvious direction and the appeal cannot succeed on this basis.
44.	We have no doubt that, whatever our conclusion had been on the safety of the conviction of the appellant, it does not affect the verdict on count 3, which charged Mrs Yaman with doing an act tending and intended to pervert the course of public justice.  On the jury’s verdict the appellant did have a hammer and Mrs Yaman removed and concealed it.
45.	It follows that both the appellant’s appeal in respect of count 1 and that of Mrs Yaman are dismissed.  The appellant’s appeal on count 4 succeeds and the conviction on that count is quashed.