No. 2012/03977/D2
Neutral Citation Number: [2013] EWCA Crim 801

IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  26  April  2013
B e f o r e:

LORD  JUSTICE TREACY

MR  JUSTICE  BURNETT
and
THE  RECORDER  OF  LEEDS
(His Honour Judge Collier  QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R E G I N A

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ABDUL  JABBAR
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Mr A Orchard QC appeared on behalf of the Appellant

Miss Z Johnson QC appeared on behalf of the Crown
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J U D G M E N T
Friday  26  April  2013

LORD JUSTICE TREACY:  
1.  The appellant and his brother, Mohammed Arshad, appeared together at the Central Criminal Court on an indictment containing two counts. Count 1, conspiracy to murder, alleged that they on or before 4 January 2011 conspired together to murder Fiza Asif (Arshad's wife).  Count 2 alleged murder in that between 2 and 4 January 2011 they murdered Fiza Asif.  The appellant was convicted on count 2.  On 8 June 2012 he was sentenced to life imprisonment, with a minimum term of 23 years.  He and his brother were both acquitted on count 1 after a successful submission of "no case to answer".  The brother was also acquitted at that stage on count 2.  The reasons for those acquittals will become apparent in the course of this judgment.  The appellant appeals against conviction by leave of the single judge.

2.  The appellant and Arshad lived at an address in Palmerston Road, Walthamstow together with the deceased and other family members.  On 3 January 2011 all of the residents of the family home, with the exception of Arshad and the deceased, visited the address of another relative in Barking.  It was the birthday of the deceased's youngest child.  The appellant took the deceased's children and other family members to Barking and then returned home alone to the house in Walthamstow.  Thus the only overnight occupants of that house were the two brothers and the deceased.  

3.  The following morning, 4 January, the appellant went out and bought £10 worth of petrol which he put into a green petrol can.  Shortly afterwards, at about 10am, he telephoned his brother.  

4.  At 11.30am Arshad left for Heathrow Airport and boarded a flight for Pakistan that afternoon.  The appellant spent the afternoon at home with the deceased.  They were on their own.

5.  Cell site evidence showed that the appellant made or received three mobile telephone calls between 20.21 and 20.29 hours at or in the vicinity of Palmerston Road.  Eight minutes after the end of the last call a member of the public saw smoke coming from 150 Palmerston Road and called 999.  At 21.26 hours the deceased's body was pulled from the fire.  She was pronounced dead.  A green petrol can similar to that used earlier that day by the appellant was found close to her body.  

6.  The prosecution's case was that the appellant was responsible for murdering the deceased.  They alleged that he killed her and then set fire to the body.  The Crown relied on circumstantial evidence and also the evidence of Mohammed Tahir, whose statement was read to the jury pursuant to section 116(2)(e) of the Criminal Justice Act 2003.  

7.  The defence case was that the appellant was not responsible for murdering his sister-in-law.  The appellant denied presence at the time she died.  He said that he left the house at Palmerston Road shortly before 20.21 hours.  His case was that her death was a suicide by self-immolation.

8.  There was evidence of police searches for clothing which the appellant had been wearing at the time he was captured on CCTV footage at the petrol station.  Such clothing was never recovered, despite extensive searches, including inside washing machines.

9.  In interview and in a prepared statement provided some weeks later, the appellant lied in saying that he had not bought petrol on 4 January 2011.

10.  As to expert evidence, the Crown called Dr Swift, a forensic pathologist, and Professor Myers, a burns expert.  The defence called Dr Davison, a pathologist.  They all agreed that the definitive cause of death was unascertained.  They all agreed that the victim was dead either before the fire or very shortly after it began.  They agreed that if she died before the fire the likely mechanism in the absence of any injuries was asphyxiation, either by smothering or the use of a plastic bag.

11.  Professor Myers' view was that the distribution of the victim's burns did not fit the pattern of self-immolation and that the burns were not life-threatening.  Dr Davison took a contrary view.  Professor Myers thought that the chances of the victim having died during the fire, as opposed to before it, were "vanishingly unlikely". Dr Swift and Dr Davison thought it was unlikely, but could not rule it out in the same way that Professor Myers did.  There was evidence from Professor Myers that the deceased did not fit the profile for self-immolation.  That could not be ruled out as a cause of death, even though there was no soot in the victim's airways and no carboxy-haemoglobin in her blood when her body was pulled from the fire.  Had she been breathing during the fire, the experts would have expected both to be present.  Self-immolation could not be ruled out definitively because a petrol fire could have caused a flash-flame resulting in hot gases reaching the back of the deceased's throat, thereby causing a vaso-vagal reaction leading to rapid death.  This could account for the findings at the post-mortem examination.

12.  We turn to the disputed evidence.  Mohammed Tahir was an acquaintance of the appellant and his brother.  On 11 January 2011, following the death of the deceased, he spoke to the police but he refused to make a statement.  He said that he was concerned for his safety and that of his family.  In March 2011 he disclosed that in 2007 the appellant had discussed with his brother killing Fiza Asif.  He put those allegations in a letter, but refused to make a witness statement on account of fear.  Eventually, on 30 November 2011 he signed a witness statement.  By that time the appellant was in custody, having been charged with murder.

13.  The appellant's trial began on 23 April 2012.  Tahir was due to give evidence early in May, but he flew to Pakistan on 25 April.  Two or three days before that an unknown male on a motorcycle had attended Tahir's home in Pakistan and threatened his family if Tahir were to give evidence.  As a result of the threats Tahir's wife was admitted to a local clinic.  There was documentary evidence confirming this.

14.  On 1 May a further threat was made to Tahir's wife, following which she was admitted to hospital for high blood pressure.  On 2 May Tahir reported the threats to the local police in Pakistan.  There was documentary evidence of this.

15.  The British police made contact with Tahir in Pakistan and persuaded him to return to the United Kingdom.  He arrived on 5 May and was collected by police officers.  At this stage he was willing to give evidence.  He made a statement in which he requested screens.  Police maintained contact with Tahir to check on his welfare.  On 6 May he disclosed that the previous evening his son in Pakistan had received threats over the telephone.  He was told that if Tahir gave evidence all his family would be "disturbed and crushed".  Detective Constable Pearce was able to speak to Tahir's son who confirmed that threat.  On 7 May Tahir's son sent a text message to the officer stating that his mother had become ill as a result of the threat and stating that they had decided "Dad shouldn't give evidence in the court unless we get security.  We are all in so much pressure".  Tahir contacted his son who told him not to give evidence because they were so frightened.

16.  On 8 May Tahir was brought to court and was due to give evidence. He was in a very anxious state and was not willing to give evidence because of fear for his family's safety.  Prosecuting counsel, with the court's permission, spoke to him in an effort to persuade him to give evidence, but she was unsuccessful.  He made a detailed witness statement that day in which he set out the threats made to his family and said that he was not prepared to give live evidence in court because of the threats.  He did, however, give evidence on a voir dire about his fear and the threats.  He was cross-examined extensively about matters going to his credibility, in particular matters of alleged dishonesty which were not significantly disputed.  The threats clearly related to Tahir's giving of evidence in the current case.

17.  The judge was satisfied to the criminal standard that Tahir's fear was genuine and that he was a truthful and reliable witness in this respect.  No challenge is made to the judge's finding that the witness was in genuine fear that by giving evidence he would put his family and his son in particular at risk of death or physical harm.  Thus the evidence of Tahir would be admissible, subject to section 116(4) of the 2003 Act, which provides that leave may only be given under subsection (2)(e) if the court considers that the statement ought to be admitted in the interests of justice.

18.  The contention on behalf of the appellant is that the judge erred in concluding that the interests of justice mandated admission of the evidence and thus in giving leave for the statement to be read.  Tahir's evidence was that he had known the appellant and Arshad for about ten years.  In 2007 he was present during conversations which they had about disposing of the deceased by divorcing her, disabling her, killing her or having her killed.  She had at that time threatened to put the appellant out of the family home and to report him to the authorities because he was in the UK illegally.  According to Tahir, the brothers disliked her power within the household.  They spoke of hiring someone to kill her when she travelled to Pakistan in 2007.  However, they eventually brought her back to the UK after she ceased to receive certain benefits which had given her power within the household.  Tahir made clear that he could not speak of any plans to kill the victim after she had returned to this country from Pakistan because he had stopped socialising with the brothers at that point.  Thus the statement of Tahir was only directly referable to count 1 and not to count 2.

19.  Tahir's evidence was the sole and decisive evidence in relation to both accused on count 1.  The judge concluded that on that count it could not be said to be demonstrably reliable or that its reliability could be properly tested or assessed.  Accordingly, the judge did not consider that there could be a fair trial on count 1 based solely on that evidence and she directed the acquittals of both accused.  She reached a similar conclusion in relation to Tahir's evidence as it affected Arshad on count 2, and so his acquittal on that count was directed.  

20.  However, in relation to the appellant and count 2, the judge held that there was other circumstantial evidence against him.  Thus the statement of Tahir was not the core evidence.  She held that there were sufficient statutory and common law procedures to permit this statement to go before the jury.  Accordingly, the interests of justice test under section 116(4) was satisfied and a fair trial could take place.

21.  On behalf of the appellant it is submitted by Mr Orchard QC that the judge's ruling was wrong.  It was acknowledged that section 116(1)(a) and (b) were satisfied; thus oral evidence from Tahir would have been admissible, and he had been properly identified.  It was further accepted that the condition at section 116(2)(e) as to fear was satisfied.  Although there was some evidence to the contrary from which the jury might have inferred that the appellant was responsible for threats, the judge had not found that this was the case.  Thus there was no question of the appellant being treated as having waived his right to question Tahir under Article 3(d) of the European Convention on Human Rights.

22.  Mr Orchard argued that Tahir's evidence was highly significant to the central issue in the case.  It would be untested and was the only evidence of motive.  This was important in a case where there was a real issue as to whether the victim's death was as a result of murder or suicide, and where the pathological evidence could not make a clear distinction between the two.  He submitted that the evidence went to three areas which were identified during the course of the judge's summing-up.  Those areas were: firstly, the question of whether this was murder or suicide; secondly, the identity of the killer; and thirdly, the question of motive.

23.  Tahir was a man with a history of dishonesty.  Mr Orchard submitted that there were good reasons to doubt his credibility, and the appellant could not challenge Tahir's assertions beyond denying them in the witness box.  He submitted that there was no independent evidence to corroborate or support what was alleged by Tahir.  Nor was there any such evidence capable of contradicting it.  In those circumstances the jury should be able to assess the credibility of Tahir's allegations by seeing them tested in cross-examination.  Thus the judge's conclusion that appropriate safeguards could ensure a fair trial was unfair and wrong.

24.  Mr Orchard was also critical of the handling of the application to admit Tahir's evidence in certain respects, having regard to the observations of Hughes LJ in R v Riat [2013] 1 Cr App R 2 (at paragraph 54(ii)), where he emphasised the importance of firm efforts to ensure a witness' attendance at court and to make clear to them the importance of giving evidence.

25.  On behalf of the Crown Miss Johnson QC submitted that the interests of justice test had been satisfied so that the judge was correct to give leave to adduce the evidence under section 116(2)(e). There had been a realistic assessment of Tahir's evidence and the materials available to enable his credibility to be tested.  In the light of Riat such hearsay evidence did not have to be demonstrated to be conclusively reliable before it could be admitted.  It was sufficient if it was potentially reliable or if there were sufficient tools safely to assess its reliability.  Moreover, the hearsay evidence was strongly supported by the circumstantial evidence and did not stand as a bare, untested allegation.  

26. The judge's ruling was in our judgment a full and carefully reasoned one.  She had considered R v Horncastle and Others [2009] UKSC 14, Al-Khawaja; Tahery v United Kingdom (2012) 54 EHRR 23, and R v Ibrahim [2012] EWCA Crim 837.  The judge did not consider Riat since that decision post-dated her ruling by several weeks.  However, her analysis of the legal position is not inconsistent with Riat, although she did not focus on the distinction between reliability and potential reliability, as explained in Riat at paragraph 33.  Thus, if anything, she approached the matter on a somewhat more favourable basis to the appellant than Riat requires.

27.  As already stated, Tahir gave evidence on the voire dire so that evidence relevant to his credibility emerged.  It showed that he had been involved in facilitating the illegal entry to this country of a number of people from Pakistan, including the appellant, by obtaining false documentation and sending it to the UK authorities in order to obtain visas.  He had claimed over the years to be married to four different women in order to facilitate his own entry into the UK.  He had been involved in the obtaining of a mortgage for the house at Palmerston Road, although he had no financial connection with it.  Although he was not charged in relation to that, the Crown opened the case on the basis that he had been involved with various fraudulent activities over a period of time so that his evidence required caution.

28.  It was admitted that on 10 January 2011 Tahir told the police that when he found out about the fire he was upset because the house would not now be sold and he would not receive a profit.  At that stage he did not allege that there had been a plot to kill the victim. In early November 2011 he told the police that he had provided information about the plot to kill the victim for "humanitarian reasons" and that he did not want to get into trouble about debts being run up on the house and false benefit claims.  His evidence was limited to a plan to kill in 2007.  He could not give direct evidence in relation to changes that had or may have taken place in the household since then.  It was suggested that motives for the killing no longer existed.  

29.  We next summarise the other evidence relied on against the appellant:

	(a)  The day before the murder, family members were sent to stay in Barking.  The Crown's case was that the house had been emptied in anticipation of the murder.

	(b)  The appellant bought petrol on the morning of the fire and then called Arshad immediately afterwards.  The petrol can seen on CCTV was found close to the victim's burnt body.

	(c)  The appellant lied in interview about his purchase of petrol.  Nor did he mention in interview or in a later prepared statement that the deceased had asked him to purchase petrol, which was his case at trial.

	(d)  Although the appellant's case at trial was that he had bought petrol because the deceased wanted him to fix the children's motorbike in the garden, there was already petrol in the motorbike.  The quantity bought by the appellant on the day of the murder was too much for the motorbike.

	(e)  Cell site evidence put the appellant in the vicinity of the house very shortly before the fire started.

	(f)  The appellant was alone with the deceased minutes before the fire was seen by a neighbour.

	(g)  When the appellant left the house he took a convoluted and indirect route to Arshad's Fried Chicken shop and had lied about when he arrived there.

	(h)  The clothes he was wearing at the time of buying the petrol had never been recovered, despite extensive searches, including washing machines, which was where the appellant claimed to have put the clothing.

30. This is not a case, therefore, where Tahir's statement was the only evidence against the appellant.  There was a circumstantial case to be made against him based on the other evidence which we have just summarised.  That seems to us to be an important consideration, particularly when viewed alongside the expert evidence.  The appellant had been charged some time before Tahir made his witness statement.

31.  The essential question for us is whether the judge was right to conclude that the interests of justice test was satisfied.  It is clear from Riat that Ibrahim did not require that a judge had to be satisfied that hearsay evidence was "demonstrably reliable" in order to be admitted under the Act.  There was no general rule to that effect.  As Hughes LJ observed in paragraph 6:

		"The true position is that, in working through the statutory framework in a hearsay case .... the court is concerned at several stages with both (i) the extent of risk of unreliability and (ii) the extent to which the reliability of the evidence can be safely tested and assessed."

The court stressed the twin alternatives concerning hearsay evidence, which is either demonstrably reliable or is capable of proper testing, as referred to in Horncastle.  At paragraph 33 the court spoke of a need for the evidence to be shown to be "potentially" safely reliable before it is admitted.  It is not the task of the judge to look for independent complete verification.  What the judge must do is to ensure that hearsay evidence can safely be held to be reliable by a jury.  That involves considering its strengths and weaknesses, the tools available to the jury for testing it, and its importance to the case as a whole.

32.  In our judgment Tahir's evidence was admissible, as the judge found, pursuant to section 101(1)(d) of the 2003 Act as being relevant to important matters in issue between the prosecution and the defence. In particular, it shed relevant light on the appellant's purchase of petrol and on his presence in the house until very shortly before the fire in circumstances where he was putting forward innocent explanations for those matters.

33.  That being so, the next question would be whether the evidence was properly admitted as hearsay.  We conclude that it was.  Tahir's evidence was not the sole evidence in the case against the appellant as there was other important evidence deployed.  In addition, whilst the statement provided evidence of a motive, that related to events in 2007, thus leaving scope for argument as to its significance.

34.  As to the three areas of evidence to which Tahir's statement related, and identified by Mr Orchard in his submissions to us, there was other evidence available in relation to the question of whether this was a murder or suicide.  That evidence emerged from the material provided by the pathologists and other evidence relating to the family circumstances of the appellant.  There was other evidence relating to the identity of the killer, for example the evidence in relation to what happened at the petrol station.

35.  As far as the third area, that is the evidence relating to motive is concerned, we are not persuaded by Miss Johnson's submission that there was other evidence which covered that third area.  But if, as is the case, there is evidence relating to the other two areas, absence of other supporting evidence in relation to motive is not sufficient to keep out evidence which otherwise should have gone in.

36.  The appellant was in a position to dispute what Tahir said by evidence of his own, to explain any material changes in family dynamics and relationships, and to rely on a significant body of material potentially reflecting on the credibility of Tahir.  Thus there could be proper exploitation of the statutory protection provided by section 124 of the 2003 Act in helping to redress the balance in circumstances where the witness upon whom the Crown relied was not available for cross-examination.

37.  At the end of the evidence it would have been open to the defence to make a submission that the case should be stopped, pursuant to section 125(1).  As we understand it, no such submission was made, but that potential safeguard existed.

38.  It is accepted that in her summing-up the judge directed the jury correctly as to their approach to Mr Tahir's evidence and the weight to be attached to it.  She reminded the jury of matters to which we have alluded, relating to Tahir's credibility and of evidence given by the appellant concerning Tahir and the evidence in his statement.

39.  In addition, Mr Orchard complains that, although Tahir was brought to court and was available for voir dire so that he could be cross-examined, he was not informed that his statement could be read to the jury and used against the appellant if he refused to give evidence.  In written submissions it was argued that this might have made a difference to his ultimate decision.  We are unconvinced by this point.  In the circumstances of this case, this witness was, until shortly before the trial, willing to give evidence and indeed had travelled back to the UK in order to do so.  To inform him in the court room that if he refused to give evidence his statement could be used against the appellant is somewhat double-edged.  Had that warning been given in the circumstances of this case, the appellant could equally have argued that it operated to encourage Tahir to maintain his refusal to give evidence.

40.  There is also criticism that the judge did not explain clearly to Tahir his public duty to give evidence.  It is said that, if that had been done, that might have led to a change of heart.  Although Riat encourages the court to take all possible steps to enable a fearful witness to give evidence, notwithstanding his or her apprehension, it has to be recognised that the factual situation will vary greatly from case to case, as will the steps a judge should take in any given circumstances.  Given the judge's finding that Tahir's fears were genuine and that he had attended court, explained his position after meeting prosecuting counsel and had been cross-examined as to credibility, we do not find that there was any failure in the way in which Tahir was handled which could avail the appellant in his challenge to the admissibility of the evidence.

41.  Accordingly, we reject the submissions made to us, notwithstanding the clarity and force with which they have been made. The consequence of this is that there is no basis for holding that the trial was unfair or that the verdict is unsafe.  This evidence was properly admitted.  The appeal is dismissed.