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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Jalil & Ors, R v [2008] EWCA Crim 2910 (4 December 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/2910.html Cite as: [2008] EWCA Crim 2910 |
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B1 2007/03606 B1 2007/03733 B1 |
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
MR JUSTICE BUTTERFIELD
T20047453
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE MACDUFF
and
THE RECORDER OF BRIGHTON AND HOVE (SITTING AS A JUDGE IN THE COURT OF APPEAL CRIMINAL DIVISION
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Regina |
Respondent |
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- and - |
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Abdul Aziz Jalil….. Mohammed Navid Bhatti Zia Ul Haq Qaisar Shaffi |
Applicants |
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A Merrill Communications Company
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Official Shorthand Writers to the Court)
Mr M Bishop QC and Mr Sidhu (instructed by Registrar of Criminal Appeals)
for the Applicant Jalil
Mr P O`Connor QC and Mr M Foley (instructed by Registrar of Criminal Appeals)
for the Applicant Bhatti
Mr P Carter QC and Mr S R Powles (instructed by Registrar of Criminal Appeals)
for the Applicant Ul Haq
Mr C Griffiths QC and Mr D Friedman instructed by Birnberg Pierce)
for the Applicant Shaffi
Hearing dates : 13th and 14th November 2008
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Crown Copyright ©
Lord Justice Hughes :
Jalil: 26 years
Bhatti: 20 years
Ul Haq: 18 years
Shaffi: 15 years
As to the three other defendants not before us, Feroze was sentenced to 22 years, Tarmohamed to 20 years and Rehman to 15 years. In the case of all defendants the Judge made those sentences the custodial parts of extended sentences under section 85 Powers of Criminal Courts (Sentencing) Act 2000, and imposed in each case an extended licence period of an additional five years.
Jalil: departure from sentence indication ?
"If I were unfettered, upon authority to come, I would consider on the information I presently have, that the determinate sentence would certainly not exceed the determinate sentence ultimately held to be appropriate in the case of Martin and is very likely – I am afraid I can say no more than that – but very likely to be significantly less. That is the starting point before the discount that I have already indicated for pleas of guilty."
"But I make it plain of course I am bound to be bound by any subsequent observations by the Court of Appeal and the Lord Chief Justice……you understand that of course."
"It may be, for example, that he [the Lord Chief Justice] will take the view that Martin should be revised upwards, I simply do not know and nor do I know when he is going to deliver his judgment."
A little later he said this:
"Obviously, any defendant pleading guilty at this stage, not knowing what the Lord Chief Justice will ultimately say, does take a course of some courage…"
And when eventually he was persuaded by the defendants that it was possible to give a limited indication the judge said:
"....it does occur to me that I could give, without a term of years…a general indication of the likely level of sentence consequent upon a plea of guilty 'outwith' the decision of the Lord Chief Justice in Barot. I do not know whether that would be helpful or not, but inevitably if the Lord Chief Justice took a different view I would be bound by that different view. That is the problem."
He was specifically told, by counsel for Tarmohamed who made clear that he was speaking for defendants generally, that anything he could properly say would be 'very helpful'. The crucial second part of his indication followed shortly after that exchange. Consistently with that, we also see that when, some weeks later in the course of mitigation, the point was mentioned (by Mr O'Connor QC for Bhatti), the judge responded by immediately making it crystal clear that given what had been said in Barot about Martin, he could no longer regard the latter case as a guideline.
Jalil; other grounds
Bhatti
Ul Haq
Shaffi: conviction
i) that there was no jury ballot;
ii) that the judge was wrong to admit bad character evidence relating to a company of Shaffi's called Craigon Ltd; and
iii) that the Crown failed to disclose material which would have assisted Shaffi on an issue which arose under section 34 Criminal Justice and Public Order Act 1994 and to rebut a separate Crown suggestion of recent invention.
The jury ballot question
"(1) No judgment after verdict in any trial by jury in any court shall be stayed or reversed by reason –
(a) that the provisions of this Act about…the selection of jurors by ballot have not been complied with…
(2) Subsection 1(a) above shall not apply to any irregularity if objection is taken at, or as soon as practicable after, the time it occurred, and the irregularity is nor corrected."
"A challenge to a juror in any court shall be made after his name has been drawn by ballot…and before he is sworn."
Craigon Ltd
Non-disclosure
Shaffi: conclusion