Neutral Citation Number: [2010] EWCA Crim 1939
Case No: 200903054 C5 & 200903055 C5
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
His Honour Judge Freeland QC
T20077527 & T20087259
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/08/2010
Before :

LORD JUSTICE HUGHES
MRS JUSTICE RAFFERTY DBE
and
MR JUSTICE MADDISON
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Between :

	R	Respondent	
	- and -		
	Ranjit GOJRA
Sanjeev DHIR	Appellants	

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Christopher Amis (instructed by the CPS) for the Crown
Orlando Pownall QC and Rizwan Ashiq (instructed by Anami Law Solicitors) for  GOJRA
Tim Owen QC and Rachel Darby (instructed by Stokoe Partnership Solicitors) for  DHIR
Hearing date : 21st July 2010
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Judgment

Mrs Justice Rafferty : 
1.	On 24 April 2009 in the Crown Court at Snaresbrook Gojra and Dhir were convicted of 2 offences of assault occasioning actual bodily harm; 2 of false imprisonment; and 2 of kidnap. On 19 June 2009 they were sentenced as follows: assault occasioning actual bodily harm 30 months’ imprisonment; in all remaining counts 7 years’ all concurrently, a total loss of liberty for each of 7 years. Each had been of good character  
2.	Greg Little was convicted of 2 offences of kidnap and sentenced to 42 months imprisonment on each count concurrently. He was acquitted of 2 offences of assault occasioning actual bodily harm and 2 of kidnap.
3.	Gojra appeals against conviction and seeks leave to appeal against sentence. Dhir seeks leave to appeal against conviction.	
4.	On 20 April 2007 Mohammed Nawaz and his brother Haq Nawaz went to Dhir’s office at Aspect House, Stoke Newington at about 5pm having arranged to meet Dhir at 7pm.  During the course of the evening they were assaulted and restrained, then forced into a vehicle and driven around the London area before being left in Chelsea at about 2 am. Counts 1 and 2 related to the assaults on Mohammed and Haq respectively as a result of which they each sustained bruising, swelling and tenderness to soft tissue; Counts 3 and 4 related to the tying up and detention in Dhir’s office of Mohammed and Haq respectively; Counts 5 and 6 related to the forcing of Mohammed and Haq respectively into a van and their subsequent transfer into other vehicles. 
5.	There was said to be a financial dispute between Mohammed and Dhir about the leasehold of flats at 181 Stoke Newington High Street. Mohammed believed that by 2007 he was owed money and tried to contact Dhir but was fobbed off. Eventually, on 20th April 2007 he arranged to meet Dhir at Aspect House.  Dhir claimed he was owed £194,000 whereas Mohammed claimed Dhir owed him over £200,000.  The meeting had been arranged to discuss the situation.  Both parties claimed they felt intimidated by the other and so arranged for others to be there, Haq for Mohammed, Gojra and others for Dhir. The Crown alleged that four men assaulted and kidnapped the brothers: Dhir, Gojra, Little, and Anthony Malone, an Irishman said to have left the UK. At about 6.45pm on 20 April 2007 Dhir, Gojra whom CCTV evidence suggested was in camouflaged combat trousers, boots and a blue T shirt, and Malone met in the nearby Father Ted’s public house, and CCTV footage showed Malone and Little walking in the alley in the direction of Aspect House followed shortly by Dhir. Gojra was shown walking past the alley, away from Aspect. He said in evidence he had given Dhir his, Gojra’s, mobile phone (025) in Father Ted’s because Malone wanted to borrow it. Dhir was seen on CCTV using a mobile telephone as he left Father Teds with Gojra. The call logs showed that Dhir’s own phone was not in use at the time. 
6.	The men then went to Dhir’s office where the brothers were waiting, and subjected them to assaults, threats and humiliating treatment including tying them up. Little was present. At about 10.20pm the brothers were escorted from the building and put into a van which was driven around accompanied by a BMW. Dhir went to Hong Kong later that day (21 April 2007) on a pre-arranged flight and was arrested on his return on 2 May 2007. Gojra was arrested in May 2008, and Mohammed identified him at an identification procedure in June 2008. The Crown suggested Dhir was the orchestrator who recruited Gojra, who recruited Malone who in turn brought in Little as enforcer. The Aspect House assaults by the four as a joint enterprise were protracted, humiliating and terrifying.
7.	The brothers described the attackers as an Asian in army fatigues (said to be Gojra), an Englishman with an Irish accent (Malone) and a Polish man (Little). Dhir sat behind a desk.  Mohammed’s e-mail account was accessed and his password changed.  Sacks were put over the heads of the brothers and Mohammed’s hands and feet bound.  Malone poured alcohol over him, a blow torch was used near his face, and his head was forced down the lavatory. DNA analysis of blood from the lavatory bowl revealed a profile which bore similarities to that of Mohammed. A plastic cup in the office provided a DNA profile which matched that of Malone. No science linked Gojra to Aspect House.
8.	Financial demands were made.  Balaclavas were put over the brothers’ heads, they were put into the boot of a van which began a journey escorted by a BMW.  Lengthy schedules set out phones calls attributed to the four men allegedly involved. During the journey, between about 10.20pm and 4.22am on the Saturday, 96 mobile telephone calls were made between the accused and Malone. Cellsite evidence showed the route. Malone drove the van, Dhir in the passenger seat. At some point Mohammed was put into the boot of the BMW, he said by Gojra. Haq was put into the back seat of another car with Malone in front. The BMW stopped again and Mohammed was moved from boot to rear seat and a threat was made to kill him. The car moved off again.  Near McDonalds in Brixton, ties were removed from the wrists of the brothers and in Chelsea the two vehicles met up again, Haq by now out of the rear and in the boot.  In Chelsea the brothers were put into Dhir’s BMW driven by him, Gojra said to be the front seat passenger. In the small hours the brothers were released.
9.	The Crown suggested Gojra was the Asian in combat trousers and boots identified by Mohammed. There were twelve calls from Gojra’s to Dhir’s phone and since it could not have been Dhir or Malone using Gojra’s it must have been Gojra using it at various locations. The Crown said Dhir was present on his premises during serious violence.  He could have phoned the police or got out of the building and reported what was going on.  He was constantly on the phone which, taken with the amount of time he spent with the complainants, was inconsistent with his assertion that he was a victim.
10.	The defence for Gojra was alibi. He accepted that, wearing camouflage trousers, he was at Father Ted’s but pointed to CCTV evidence which did not show him going towards Dhir’s premises after leaving. Miss Burroughs, a local lady, saw four people leaving Aspect at 10.20pm and described only one Asian, and he matched the description of Dhir. The purported identification of Gojra by Mohammed 14 months later was mistaken and flawed. Criticisms were made of the police and DS Wade in particular for his failure to keep a note of conversations with Little and with Mohammed.  It was possible that the name, if not the photograph, of Gojra was given to Mohammed before the ID parade.
11.	Gojra asserted that he was not involved in any incriminating or implicating telephone calls. Malone, with him that day at his home, might have used his phone. Dhir wanted to speak to Malone who with Gojra went to Stoke Newington. Gojra showed to Dhir pictures of his infant son then he went home. His wife Mandeep claimed that she would have remembered any return after 03.00 on 21 April. Little and Dhir were lying and had their own reasons for implicating and giving evidence against him.  He accepted that on arrest he lied in saying he had not seen Dhir since his wedding. He was under pressure. 
12.	The case for Dhir was that he had no quarrel with the brothers, rather it was with Dholtana Dad who had bought 181 Stoke Newington High Street. Dad had served a short prison sentence, used several aliases and ‘hijacked’ Mohammed’s identity. The brothers set up the meeting and threatened Dhir by phone and text so that he was intimidated into believing they would be accompanied. Gojra whom he had known for six years had introduced Malone. Gojra when Dhir sought help said he would come with Malone. They met in the Father Ted’s, where Malone said that he would handle the situation.  Dhir accepted that he was in the premises for the first part of the incident, but the brothers exaggerated their account. Dhir, content that Malone would mediate, stayed in his office while Malone and Gojra in another room spoke to the brothers.  He heard loud arguments and Malone said there was a small disagreement. Malone then took Dhir’s phone, pushed him into his, Dhir’s, partner’s office and directed him to sit behind the desk but it was Gojra in charge, Gojra who issued threats. Malone slapped Mohammed on the back of the head. Dhir did not open Mohammed’s e-mail account.  He was then forced into the passenger seat of the van with Malone who still had his phone. They stopped at a marina (the evidence would show it to be in Chertsey) and then the van was dumped and Malone forced Dhir into Gojra’s BMW. They stopped at McDonalds in Brixton, and though he offered the brothers water he was too afraid to raise the alarm. Upon this pause in the journey more was to turn during the trial. He was allowed to use his phone to tell his relatives that he would be late.  When the brothers were eventually freed in Chelsea Dhir out of kindness gave them £40 for a taxi. 
13.	Gojra and Malone, said Dhir, went off on a frolic of criminality of their own, in which he did not participate.  He questioned the credibility of the brothers, pointed to their financial difficulties and claimed that their property empire was founded on fraud.  The police investigation was flawed, there was late disclosure including the antecedents of Dholtana Dad confirming the latter’s use of “Mohammed Nawaz” as an alias. This, said Dhir, was consistent with his case. He disputed Gojra’s assertion that he Dhir was using Gojra’s phone and relied on the telephone and CCTV evidence in support. He did not flee the country after the incident but took a prearranged flight and tried to get an early flight back. His prepared statement in interview was consistent with his defence.  
14.	The case for Little, present because Malone had asked him to do a driving job, was that he took no part in assaulting or tying up the brothers at Dhir’s office (Counts 1-4, of which he was acquitted), but was present for some of the time. His account was largely consistent with that of the brothers. When he saw what was happening he left the premises but stayed in the area.  Gojra rang him, threatened him and told him to get back, so he did.  He drove the car but put forward a defence of duress which by its guilty verdicts on the final 2 kidnap counts the jury rejected.
15.	Mohammed gave evidence of the dispute concerning the purchase of 181 Stoke Newington High Street and claimed that Dhir owed him £210,000.  Dhir had promised to “sort it out” but had then referred him on to others.  He eventually arranged a meeting on 20 April 2007 at 7pm with Dhir at the latter’s office. He and Haq arrived at about 5pm and waited. Three men came in, one Asian in army-style trousers, one Irish (Malone) and one Eastern European (Little).  Each carried a rucksack.  The Asian said “Sanjeev [Dhir] is calling you” and the brothers went to Dhir’s partner’s office and sat.  Dhir came in.  The Asian shouted at Mohammed, and said he owed Dhir money.  The Irish man (Malone) took Mohammed’s phone and wallet and pulled down his jacket so he could not move his arms. The Asian said he was in the army and knew martial arts.  [Malone] removed Mohammed’s shoes and belt. Haq was searched.  Dhir sat at the desk shrugging his shoulders.  They tied Mohammed’s and Haq’s wrists and ankles with cable ties.  Mohammed was petrified.  Dhir did nothing to stop them.  A sack was put over Mohammed’s head. [Malone] punched him on the nose, he was bleeding and dizzy and alcohol was poured over his head.  The Asian was doing the same to Haq.  [Malone] hit him with the handle of a hammer on the back of the head.  He felt heat akin to that from a Bunsen burner manipulated close to his face by the Asian. Haq was pleading with Dhir, who did not react.  Mohammed was punched, taken to the lavatory where his head was shoved down the bowl by Malone, they pulled down his boxers and Malone said to the Asian “Look at his arse”. They kicked his legs and backside and were laughing.  He was struck with the hammer again and hit to the side of the face by his belt.  Offensive and threatening things were said about his wife and children.
16.	When it was demanded he supplied his email address and password, Dhir operated the computer and they changed his password.  Dhir, laughing, asked about his assets. The Asian was whipping him with his, Mohammed’s belt; Dhir did not intervene. On leaving the building his boxers were pulled up, his trousers between his legs, he was unshod and the sack was over his head.  Something was tightened over his head and he was pushed down the corridor very fast.  Very scared, he thought he was going to be killed.  The brothers were “chucked into the van”. 
17.	Dhir and Malone he could hear were in the van. Mohammed, crying and screaming, could not see anything.  The van stopped after about half an hour and the Asian put him in the boot of a car, in which were Dhir and the Asian.  The car stopped and the Asian took him out again.  He heard the Asian, Dhir and Malone. As bidden he went to his knees. Someone said they were going to kill him and someone else said they should shoot him.  A gun was put to his head.  There were phone calls between the kidnappers and mention of the M25 M11 and Croydon.  They stopped at McDonalds, then arrived in Chelsea where Mohammed realised he was in a silver BMW he assumed belonged to Dhir.  He was put into another silver car, Malone driving, Dhir the front passenger, the brothers in the rear.  They were told not to go to the police. 
18.	In cross-examination Mohammed accepted enduring financial pressure in April 2007 and that all his companies had since been dissolved or gone into administration.  He denied any fraud. Texts he sent to Dhir in the afternoon of 20th April 2007 “the boys are with me” were not threatening, but a business trick to apply pressure  He denied swearing at and threatening Dhir on the phone. Dhir was not out of the room when the violence against Mohammed began, nor was Dhir pushed into a chair and told to shut up, nor did he argue with the others, nor was he pushed into the van. 
19.	He had had an exchange of emails with DS Wade but had not been given either Gojra’s name or a photograph of him, nor attempted to look him up on the internet. Challenged about his identification of Gojra and his failure to mention the Asian’s eye colour (Gojra has green eyes), he maintained that he had seen the man at close quarters and would never forget his face. 
20.	Haq Nawaz gave evidence that he had met Dhir on 17 April but denied he Haq had been hostile or abusive.  As to events on April 20th his account in large part echoed that of his brother. In cross-examination Haq said he had not attended an identification parade because he was not asked to.
21.	Elizabeth Burroughs gave evidence that on Friday 20 April 2007 from the window of her then home she could see Aspect House and at about 10.20pm saw a blue van parked as close as possible to its door. She saw 4 men outside in Wilmer Place, one Asian and three white. Male 1, who must be Malone, was white aged 28 to 35, fit and stocky as if he did weights, light ginger hair, fair-complexioned, wearing a designed and styled short beard running from his hairline and across his top lip. He did not have hair on his jaw line or chin. He wore a black tight fitting t-shirt whose sleeves finished above his bicep, khaki combat trousers with pockets on the sides. He spoke with a northern accent. Male 2 was white, of similar build to Malone, with short cropped dark brown or black hair, 28 – 38, in a dark t-shirt, and combat trousers. Male 3 was white with short brown hair and was in a t-shirt and combat trousers. Of him she saw the least. Male 4, who must have been Dhir, was Asian of medium complexion, black gelled hair pushed back at the sides, feathered at the back, mid 30s may be a bit older. He wore a hip-length collared black leather jacket. Male 2 returned to Aspect, emerging with another male who was put into the van. 
DEFENCE CASES
22.	Dhir said he was owed money on 181 Stoke Newington High Street by Dholtana Dad who had disappeared.  On 17 April 2007 he had spoken to Haq who was hostile and profane.  He had threatening texts from Mohammed earlier in the afternoon of 20 April in which Mohammed said he was coming round with “the boys”.  He then spoke on the phone to Mohammed who swore at and threatened him.  Thus Dhir rang Gojra and explained the problem. Gojra reassured him and undertook himself to come down and see him. Gojra had introduced Dhir to Malone whom Dhir by now had met a number of times and trusted.  He was happy that Malone came too.
23.	In the Father Ted’s Dhir told Malone and Gojra what had happened and Malone undertook to handle the situation.  Malone left the pub, Dhir and Gojra finished their drinks before Dhir left for Aspect House and Gojra said he would go to see where Malone was.  As Dhir entered Aspect House the brothers were there.  Malone acting as a mediator led them into the next-door office of Dhir’s partner Choudhury, and Gojra went along as well. Dhir stayed separate in his office for 20 to 30 minutes before he heard something and went to investigate. Choudhury’s office door would not open more than a small gap.  Malone told Dhir it was a small disagreement and as bidden Dhir returned to his office for another 20 to 30 minutes within which he rang his father.  Now he heard loud arguments coming from Choudhury’s office, Malone outside it and on the phone.  Malone grabbed Dhir by the arm, dragged him back to his own office, told him to wait, took his phone, then came back and pushed him into Choudhury’s office.  Gojra said to Malone, “Sit the fuck down, I’m running this”.  When Dhir asked what was going on he was told to shut up.  He saw the brothers being hit, but when he asked what was happening Malone indicated that he should keep his mouth shut.  Gojra made Mohammed open his email account.  When Dhir tried to stand he was told by Gojra to sit down and shut up.
24.	Malone told Dhir he was going for a trip, pulled him into the doorway in reception and became very angry.  A lot of people were moving around.  Dhir heard commands ‘stop’ ‘go’. Malone frogmarched him to the van, he was chucked into the passenger seat, Malone got into the driver’s.  With Little driving Dhir’s BMW and together with a third vehicle the convoy began a journey of at least an hour, Dhir unaware where and concerned for his safety. Malone still had Dhir’s telephone. When they stopped for about 40 minutes at a marina, Malone restored it with instructions Dhir should ring his family to say he would be late. Malone was on another phone a lot.  Dhir realised Mohammed was in the back of the van.  Gojra’s car was in front.  They drove along country lanes for 10 to 15 minutes before stopping and Malone moved Mohammed from the van to Gojra’s car.  Dhir was put in its front passenger seat, Gojra driving and on the phone arguing about where they were going.  When Dhir asked Gojra what the purpose of it was he was told to shut up.  They stopped at McDonalds.  When, later, they released the brothers Dhir gave them £40 to get home then left in his own car.  He did not contact the police because he was afraid for himself and his family. 
25.	Little gave evidence that he saw Gojra and Dhir in the room with the brothers and that Gojra kicked Mohammed. On the journey in the cars and van Gojra was aggressive.  Little had taken part only because he was afraid of reprisals. 
26.	Gojra gave evidence that he was not present at Aspect house and took no part in the events. 
27.	Mandeep Gojra his wife gave evidence that Gojra was on paternity leave at the time of the incident and never stayed out until 3.00am especially when they had just had a baby.
28.	GROUNDS OF APPEAL  for Gojra are as follows:
i)	The judge erred in failing to stay the proceedings in the light of the prosecution conduct in respect of identification procedures.
ii)	The judge erred in failing to exclude identification evidence notwithstanding wholesale breaches of the Codes of Practice.
iii)	The judge failed to give the jury appropriate directions upon the omission by the police to hold an identification parade in the case of Haq Nawaz.
iv)	The judge omitted to give the jury proper directions in respect of the prosecution’s failure to cross-examine Mrs Gojra who gave alibi evidence in the case.
v)	The judge failed to direct the jury as to the correct approach to adopt in the light of the Crown’s approach.
vi)	The judge failed to direct the jury of the burden of proof in respect of disproving the alibi.
vii)	The judge failed sufficiently to remind the jury of the evidence of Mrs Gojra.
viii)	The judge failed to give appropriate directions to the jury in respect of the purported identification of the appellant by his co-accused Greg Little.
29.	The Ground of Appeal for Dhir is that his convictions are unsafe in the light of the fresh evidence of Anna Frampton.
30.	We turn first to Gojra. His original Ground one, abuse of process, was not pursued. However, the basis upon which it would have been advanced was described by Mr Pownall QC as not insignificant. We therefore rehearse in brief the factual backdrop since Gojra does rely on it as painting a motif which fortified other Grounds. He suggests that there is discernible complacency in the conduct of the police, thrown into particular relief in the context of their approach to identification. In reliance on the Police and Criminal Evidence Act 1984 Codes of Practice Gojra applied unsuccessfully for a stay of proceedings because the Crown had failed to seize CCTV footage from McDonald’s where, according to Mohammed, Gojra and Dhir stopped and bought food. DC Hammond had asked for the correct footage from McDonalds and was assured it would be retained. When he chased the manager he was reassured. He attended the premises before the date on which such material would routinely be deleted and despite having made clear what he was sought was given the wrong material. Once alerted he went back, made a further request for the right material, was again reassured and when once more without success he chased the manager, he not only left messages for him but also went directly to the parent company of the security firm. He made further attempts to contact both but without success. Insofar as a conclusion is required of us, given the abandonment of the Ground asserting that an abuse of process argument should have succeeded, we have no difficulty accepting that DC Hammond, anxious to retrieve the footage and aware of its potential probative value, did all that could reasonably be expected of him. That he was never able to obtain it was not his fault. The material never having been obtained by the police there was no breach of a duty to retain. Gojra came nowhere near establishing, on the evidence, any negligence. The learned Judge described his argument as “misconceived on the evidence and misconceived in law.” In any event it is impossible to know what the footage would have shown. The assertion that it would clearly have shown who was outside and who entered at the material time may or may not be well-founded. It is in our view unwise to assume that the material must have been useful and yet more unwise to assume that it would have been dispositive of the issue of identities and/or of demeanour. The Judge, as is now accepted, was thus correct to rule that there was other credible evidence, that any complaint as to unavailability could be dealt with as part of the trial process and that Gojra had failed to justify the invocation of such an exceptional jurisdiction. We would had it been pursued have seen nothing in this Ground and as will become apparent our view of the complaints about some aspects of identification have not necessitated a finding one way or the other as to ill-judged complacency.
Exclusion of the identification evidence
31.	At the close of the Crown’s case an application under S78 of PACE 1984 was made by Gojra inviting the exclusion of the identification evidence by Mohammed (albeit already given) as tainted, inherently unreliable and vulnerable to significant and substantial breaches of safeguards. The court could not be sure Mohammed had not been given the name Gojra before the identification procedure, a fundamental breach of the Code. The Criminal Procedure and Investigations Act guidelines had not been followed and the result was the absence of a complete and accurate audit trail of conversations. The identification should be treated with particular care because i) it was over a year after the relevant events; ii) CCTV footage outside Father Ted’s was equivocal in respect of Gojra; iii) the cellsite evidence could not say who was using the phones or what was said; iv) the principal evidence was the purported identification by Mohammed and v) there was no description of the ‘Asian’ in Mohammed’s witness statement.
32.	Mohammed’s lengthy statement in fact included a description of an Asian he believed to be Dhir’s younger brother, a position echoed by Haq who told police the Asian had very similar features to Dhir as if a cousin or nephew. Haq gave no further description as to height, build, hair or eye colour, or any distinctive features.  It was accepted that Gojra bore no resemblance to Dhir. His green eyes were not mentioned by either brother.
33.	On 16th June 2008, having identified Gojra, Mohammed made a statement including “ I identified person number 7 as being the person who is the Asian guy. I don’t know his name but he was the guy who was beating up my brother. It was his eyes that made me realise it was him. I will never forget those eyes”. Gojra submitted the change was as a result of DS Wade having given Mohammed his name prior to the parade allowing Mohammed to deduce that Gojra was the suspect. 
34.	In cross examination Mohammed, challenged as to what was it about the man he picked out which brought him to mind answered that it was the man’s face. What it was about the face that made him pick out Gojra he could not say. He said there were no unusual or distinctive features, nothing in particular he could remember about the eyes. 
35.	It emerged during the trial that there had been e-mail, personal and telephone contact between the officer in the case, DS Wade, and Mohammed and that DS Wade had sought to intervene on behalf of Mohammed with the latter’s creditors. At the request of Mohammed the officer had written to them suggesting the trial would take not 12 months as Mohammed had asked him to say but six. Even six was an exaggeration, the trial lasting little more than a month. Some emails were disclosed during the trial, others were missing and had not been retained contrary to the obligation under the Codes to retain all material relevant to the investigation. In breach it was said of the Criminal Procedure and Investigation Act 1996 DS Wade made no notes of the telephone conversations or the meetings.
36.	E-mails disclosed were said by Gojra to have shown that his name had been mentioned to Mohammed by DS Wade. Since no records had been kept Counsel for Gojra asked Mr Mousley QC leading for the Crown whether that had happened before the identification parade in June 2008. Counsel told his opponent that DS Wade could not recall whether he mentioned Gojra’s name to Mohammed either before or after it. Though DS Wade had told counsel it was possible that he may have done, before the parade, his evidence was that he was certain he had not. It was suggested that his change in recollection was born of the realisation that mention beforehand risked the identification being excluded. Mr Mousley QC drafted agreed evidence formalising the dialogue with DS Wade as follows:
37.	The following matters are agreed between the Crown and all defence counsel:
(1)	On 19th or 20th March 2009 DS Wade had a conversation with leading counsel for the Crown, Mr Mousley QC; 
(2) The following was said by Mr Wade:

(a) There were no relevant e-mails to Mohammed Nawaz containing the name Gojra; 

(b) He had telephone conversations with Mohammed Nawaz; 

(c) He was unable to confirm that he had not mentioned the name Gojra in any phone call; 

(d) If he had done so he was unable to say whether that phone call was before or after the date of the identification of Gojra by Mohammed Nawaz.

38.	Counsel for the Crown submitted that the application should have been made earlier. In any event on the evidence of DS Wade and Mohammed the clear conclusion was that the name Gojra had not been given to Mohammed so there had been no unfairness.  Third, the proposition that Wade gave the name to the witness who then looked it up on the internet to reveal a photograph was not supported by the evidence; fourth the identification procedure itself was unimpeachable and a positive identification was made by Mohammed.
39.	The judge ruled that if the application had merit he would not consider timing to be an impediment to success.  The application was on a narrow issue and not based on Turnbull principles.  Section 78 Police and Criminal Evidence Act 1984 gave wide discretion to exclude evidence unfairly obtained where its admission would have an adverse effect on the fairness of the proceedings, and if he considered the conduct of DS Wade had prejudiced the defence he would exercise his discretion in its favour. Identification evidence required particular care and he posed the rhetoric question: was the evidence of identification in this case so tainted with unfairness that it should not be admitted?  It was not. The procedure itself was unimpeachable and the suggestion was that the officer may have provided the name Gojra to Mohammed.  The evidence of Mohammed was that he did not. 
40.	In our view the Judge was correct to conclude as he did. There was no unfairness to Gojra in the admission of the identification evidence which included that fact that no name had been supplied to Mohammed.  There had never been more than impermissible speculation to found the theory – for it was no more – of interrogation of a search engine leading by deductive reasoning to Mohammed’s selecting the arrested man.  There is nothing in this Ground.
Failure to withdraw the case at the close of the Crown’s case.
41.	An application at the close of the Crown’s case to withdraw the case against Gojra in accordance with R v Turnbull was rejected. Gojra relied on the evidence of Elizabeth Burroughs who described the person the Crown claimed was Gojra as white, on the absence of an identification by Haq, on the unfairness of Haq not being asked to participate in a procedure; on the delay in the identification by Mohammed (fourteen months from event to identification) and the lack of any prior description of the assailant kidnapper. He also asserted that CCTV and cellsite evidence did not support the Crown’s case. The Judge is said to have fallen into error since the quality of the identifying evidence was poor and unsupported. The procedure was severely tainted, unreliable and had no probative value because of the significant breaches earlier rehearsed. 
42.	Dhir appeared to be on a mobile telephone as, with Gojra, he came out of Father Ted’s. The only call logged at that time was on Gojra’s 025 number, upon which Gojra relied as leading to an irresistible inference that Dhir had Gojra’s mobile phone. Dhir then walked through the alley, Gojra walked past it.
43.	 Gojra submits that for at least 10 minutes Miss Burroughs whose evidence was at odds with that of the Nawaz brothers had a grandstand view in good lighting of the men leaving Aspect House. Her descriptions of Malone and Dhir were very accurate. She described Malone’s beard which the brothers had not mentioned. She was adamant there was only one Asian in the group outside and he fitted the description of Dhir. The Nawaz brothers provided no meaningful descriptions of the Asian alleged to be Gojra beyond suggesting that he was Asian and looked as if he were related to Dhir.  
44.	The cumulative effect of all these weaknesses Gojra submits was that the identification evidence against him was poor. Had the judge in accordance with R v Fergus 98 Cr. App.R.313 CA. considered all the weakness he would it is said have been driven so to conclude. It follows that he should have withdrawn the case from the jury and his failure so to do renders the conviction unsafe.
45.	The Crown relies on a careful analysis of all the relevant facts. Mohammed said his assailant was Asian, 30-35 and fit-looking, wore camouflage trousers and army-style boots. All those epithets were appropriate for Gojra. In addition Mohammed said that whilst in the office the Asian said he had been in the army and knew martial arts, later talked about “army stuff”, and that when the Bunsen burner was held to Mohammed’s face said “we were in the SAS - that’s what we do in the army.” Gojra’s evidence was that he had been briefly in the army, and then in the Territorial Army   
46.	Gojra was outside Father Ted’s with his co-defendants minutes before the assaults. Gojra was to admit when cross-examined by Dhir that it is not difficult to get back to Aspect House without using the alley. Were Gojra not the 30-35 year old, fit-looking Asian in camouflage trousers and army-style boots who assaulted the brothers, the Crown’s case was that there must have been another such who must have appeared on the scene in the moments after Gojra left the pub at 7.09 pm and before the brothers’ ordeal began at about 7.15pm. 
47.	Were Gojra not involved it is, said the Crown, odd that he should travel from his home in Kent to Father Ted’s for a meeting lasting according to him a maximum of 22 minutes attended by Dhir, Malone and Little. 
48.	Gojra was in the sight of the brothers for about three hours before they were transferred to a position in the van (or car boot) from which they were unable to see, and had ample opportunity to observe him and from different angles. 
49.	When the car arrived in Croydon the hood was removed and Mohammed could see Dhir, and the Asian driving. He could see and hear the Asian talking to Malone on the phone. When the car stopped at McDonalds Mohammed saw the Asian throughout the journey back to Chelsea. Mohammed was in the company of the Asian for about nine hours from beginning to end. It is against this factual background that he made a positive identification.  
50.	That no detailed description of the Asian was provided by the brothers, as Gojra asserts, the Crown argues requires scrutiny. In his police statement and in his ABE interview Mohammed described the man’s ethnic appearance and his clothing. Furthermore, there was a measure for the accuracy of that description in the CCTV evidence, which supported it. 
51.	Mrs Burroughs, relied upon by Gojra as having had a “grandstand view in good lighting for at least ten minutes” and who saw one Asian (probably Dhir), in fact said that her view, obscured because of the angle, was only partial. Her position and that of the van, its rear furthest from her, meant she could not see everything. Her evidence did not preclude Gojra’s presence and involvement. That she did not speak of a second Asian the Crown suggests may be attributable to her impaired view or that she was looking at a number of different strangers simultaneously for the first time. On any view it was a lot for her to take in accurately. 
52.	The Crown submitted that there was positive identification, cogent telephone and CCTV evidence and that these categories both stood proud and supported one another. The identification evidence was not so poor as to require supporting evidence, but if it were there was an abundance of it. Telephone evidence was supportive of Gojra’s having been closely involved in the planning and execution of this kidnapping. Unchallenged cell-site evidence showed Gojra’s 025 phone at his home in Kent at 3.45-5.33pm on Friday 20.4.07, at or near Dhir’s between 6.46 and 10.18pm, on Regents Park Road between 10.36-11.37pm, at or near the Marina at around midnight, at Kingston by about 1am and finally at 4.16am back at his home in Kent.  
53.	In our judgment this rehearsal of the submissions by the Crown demonstrates compellingly that the identification evidence was more than sufficient to justify the leaving of the case to the jury. A Turnbull submission was hopeless. Even were we to conclude that the identification were poor, the supporting evidence was abundant.  The judge’s conclusion was inevitable and there is nothing in this Ground.
Failure by the Crown to cross examine Mandeep Gojra and the Judge’s failure fairly and properly to sum up her evidence.

54.	Gojra called his wife Mandeep. She said she was unable to remember 20th /21st April 2007 but did recall an occasion when Gojra returned at around 9pm, the first time he had gone out since the birth of their son. That night, she said, she had taken calls from Malone asking to speak to Gojra who, she explained, was sleeping so Malone was unable to speak to him. She said Malone had arrived at their home the next day very early in the morning. If she gave Gojra an alibi and if she were or may have been accurate she provided to him a complete defence. 
55.	The Crown had also led evidence that at the police station Gojra was heard by a police officer to telephone her and tell her to “get hold of the Nawaz brothers”. She accepted that a call was made but denied being given the instruction, itself never put to Gojra in interview nor was he invited to sign the officer’s written entry as to it, relied upon by Gojra as a breach of the Codes.  
56.	Counsel for the Crown did not cross-examine her. It is submitted that this was a remarkable omission. In his closing address counsel nevertheless suggested Gojra was not at home whilst the offence was being committed. 
57.	The Judge in summing-up did not remind the jury that there had been no challenge nor direct it as to how to assess evidence unchallenged. In R v Hart (1932) Cr App 202 upon which Gojra relies the defendant had called alibi witnesses including his wife. Lord Hewart CJ noted that a remarkable feature was that they were not cross-examined having been given the “go by” and yet the jury was invited in closing speeches to disbelieve them. 
58.	That Mandeep was cross-examined by co-accused is no substitute it is argued for the Crown’s fulfilling its obligation to put a positive case that Gojra was not at home at the time of the offences. 
59.	The Crown contends that Mandeep did not provide an alibi for her husband’s movements on the 20th /21st April 07. She was unable to remember the 20/21st April or indeed April 2007 at all, doubtless the explanation for the omission of her name and the brief details of her evidence from his Defence Statement. Her evidence was that she would have remembered had her husband had been out until 3am because, nursing a new baby, she would have been angry. The Crown submits that her evidence was vague, insubstantial, inconsistent and unworthy of belief, as Leading Counsel for the Crown no doubt concluded particularly after cross-examination by Dhir. His was a sensible decision not to cross-examine based not only on years of experience at the Bar but also upon a “feel” for how the case was progressing. 
60.	If her evidence were properly described as of an alibi then the Crown makes the point that it was given scant notice that she was to be called. The police were thus prevented from taking a statement from her themselves in the usual way in order to probe her truthfulness. In Hart the Crown failed to cross-examine not one but three witnesses. In the instant case the jury could accept Mandeep’s evidence but conclude that it was so vague as not to be inconsistent with the Crown’s case. There was no difficulty akin to that in Hart where an acceptance of the evidence of the three witnesses must necessarily have involved rejecting the Crown’s case.  
61.	In any event she was cross-examined by the co-defendants and her evidence challenged. We have no hesitation in accepting the submissions of the Crown. Each of us is familiar with the exercise of judgement by experienced counsel appropriately confident that he has read the state of evidential play and that silence could not conceivably be taken as acceptance of what had been led by the party calling the witness.  This was a sensible decision, taken in the context of Mandeep’s recollection being no more than an interpretation of her practice some two years earlier, insofar as she had any recollection whatsoever.  There is nothing in this Ground.
Failure to direct that the burden is on the Crown to disprove an alibi
62.	The Judge is criticised for his failure to direct the jury that since an alibi had been advanced the burden was on the Crown to disprove it. He should it is said have directed the jury that Gojra did not have to prove he was elsewhere. Further, since Mandeep had not been challenged by the Crown, so the argument goes, the jury required guidance as to how to approach the Crown’s case. Gojra relies on R v Wood 52 Cr. App.R. 74 where it was held that such a direction is necessary if the jury seems in danger of supposing that because an alibi has been put forward the burden must be on the defence to prove it. Mandeep is said by Gojra to have given evidence of alibi and as to the telephone conversation, contradicting that of the officer. The Judge referred to the officer’s evidence but not to hers. Her evidence in the summing-up required but three paragraphs which failed to set out the full extent of her evidence and its importance, those omissions rendering the conviction unsafe.
63.	The Crown submits that if the defence thought Mandeep’s evidence provided an alibi it is inconceivable that it would have overlooked the Judge’s failure to give the standard direction about the need for the Crown to disprove alibi. The Judge’s summary of her evidence was adequate. With both these submissions we agree.  We are not at all convinced that Mandeep provided an alibi, but if she did, they jury was adequately directed as to the burden of proof generally.  We see nothing to make us concerned that it may have misunderstood upon which party it lay.  How much time a summing-up devotes to one side of an issue is not to be equated with fair treatment of each side.  There is nothing in this Ground. 
Failure to give a proper direction in relation to Little’s evidence
64.	Little in evidence said Gojra was present when the offences were committed. In his police interview he claimed never to have seen Gojra prior to that night save once. He never volunteered Gojra’s name. His evidence was that when as a potential witness he was seen some weeks prior it might then have been given to him. No notes were kept of this meeting. The Police never asked for a description of the Asian alleged to be Gojra nor whether Little could remember his name, rather they gave to Little Gojra’s name as the man they thought was the Asian. This it is suggested seriously undermined Little`s evidence that Gojra was present because there had been no identification procedure and it made it very difficult for the defence to test his evidence. Little, having seen Gojra over the course of the trial, said Gojra had distinctive eyes, something he had never said before, criticised as akin to a ‘dock ID’. Had the police taken a description of the Asian, Gojra could have tested his recollection and the strength of his identification. Had an initial description failed to match Gojra it would seriously have undermined Little`s evidence of Gojra’s presence, so the submission goes. Supplying Gojra’s name is presented as the police having ‘nudged’ Little in the right direction, allowing him to adopt the suggestion and to tailor his own defence to align with the police version of events. The Judge in summing up never mentioned the difficulties faced by Gojra in meeting the identification by Little and failed to give the Jury guidance as to the correct approach to his evidence. It may thus have given more weight to Little’s evidence than was justified. 
65.	The Crown reminds us that Little was ultimately treated as a suspect. There was no reason why the police should have asked for his description of the Asian nor prohibition on their suggestion of the name Gojra. It is routine for the police to ask defendants in interview whether they have any connection with other suspects and it would be odd were that not done. Questions in interview did not go to whether Little might subsequently identify Gojra as being involved. That Little’s identification of Gojra was made in the absence of any identification procedure is simply a fact of life within in a cut-throat defence.
66.	The Judge reminded the jury that Little was never involved in an identification parade and suggested it ask itself whether, as defence counsel had submitted, that were a relevant criticism. He directed the jury on its approach to the evidence of one defendant which has implicated a co-defendant. He set out the need for particular care, and referred to a defendant perhaps having his own interests to serve or his own axe to grind, though in an obvious “cut-throat” the need to treat with care evidence of one defendant which implicates another must have been no more than a statement of the obvious.  There is nothing in this Ground.
No Identification Procedure for Haq and failure to give a proper direction:
67.	Gojra was arrested on 29.5.08 after a man named Green, initially unwilling to make a statement, decided to do so on 21.4.08. It is true that at no stage during his arrest or before arriving at the police station did Gojra, during an obvious denial of involvement, explicitly say that he was not present when the offences took place. Gojra made no comment in lengthy interviews on 29.5.08 and on 30.5.08.  Haq was never invited to any identification procedure. The Crown argues that not until service of his Defence Statement dated 10.3.09 just before the start of the trial on 16.3.09 and after the vast preponderance of the evidence had been served was it clear that identification was disputed. The Defence Statement contained no alibi particulars. The Crown submits that there is no reason why the police should have been able to second-guess Gojra so as to infer that his was an identification as opposed to a credibility case. That the police chose to ask Mohammed to attend an identification parade was out of an abundance of caution, not necessity. There was it is argued no obligation to ask Haq to attend an identification procedure. Gojra can hardly complain if he leaves clarification of the issue so late that there is insufficient time to hold a parade, so that it is his own team which has deprived him of the safeguard he might otherwise have enjoyed. Since there was no obligation to hold an identification procedure for Haq there can have been no breach of the Code.  As there was no breach there was no need to direct the Jury that there had been one and no basis for telling the jury that Gojra had lost an important safeguard. The Judge’s direction to the jury that such a procedure might have been “desirable” was, in the circumstances, generous. He was under no duty to go any further and certainly under no duty to give a “Forbes” direction. 
68.	At no stage before his Defence Statement was served, the Crown argued, did Gojra question the ability of either Nawaz to identify him. At no stage before trial did his solicitor invite the police to hold an identification procedure.    
69.	Haq had given a description of the Asian as follows: “his skin tone and facial features, he looked like he is a nephew or cousin of (Dhir). I thought this because of his facial features looked to me like he was a relative of Dhir. I cannot say definitely just that he was related. He had very short black hair. He is young man. He is younger than Mohammed, about 23 years old”. According to Haq he was available to attend an ID procedure. 
70.	(Code D3.12) provides that whenever:
“i. a witness has identified a suspect or purported to have identified them prior to any identification procedure (D3.5 to D3.10) having been held. 
ii. There is a witness available who expresses an ability to identify the suspect, or where there is a reasonable chance of the witness being able to do so, and they have not been given the opportunity to identify the suspect in any of the procedures ( D3.5 to D3.10); and 
the suspect disputes being the person the witness claims to have seen, an identification procedure shall be held unless it is not practicable or it would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence. For example, when it is not disputed that the suspect is not already well known to the witness who claims to have seen them commit the crime.” 
71.	DC Peel, officer in the case upon the retirement of DS Wade, gave evidence that no ID procedure was held since the police felt they had enough evidence against Gojra without it. This it is suggested was a flagrant breach of the Codes and prejudiced Gojra. The Code is designed to safeguard against mistaken identity and to test the reliability of the witness’s identification. Gojra lost the chance that Haq would either not have picked out Gojra, then aged not the described 23 but 37 and looking nothing like Dhir, or would have picked out another volunteer. There being a breach of Code D it is submitted that the trial Judge should have explained within his summing-up the way in which it arose, the protection it was designed to give and the potential prejudice to Gojra who had lost the safeguard of putting eyewitness identification to the test. He should have told the jury it should give the breach such weight as it thought fit: R v Forbes (2001)1 A.C 473, HL. 
72.	We have no difficulty concluding that Haq should have been invited to an ID procedure.  We do not consider that the formality of the service of Gojra’s Defence Statement was the moment critique for the realisation that identity was in issue.  It must have been apparent to the police long before then, and at the latest at a bail application presented by leading counsel long before the trial and well in advance of the service of Gojra’s Defence Statement, when explicitly the issue was set out. It may be that DC Peel failed to understand the obligation imposed upon the police by the Codes and certainly one of his answers in cross-examination might suggest that to be so.
73.	The Judge in summing up said:-
“Criticism that Haq was not involved in an identification parade. It might have been desirable if he was but ask yourselves whether that really is relevant to your fact finding. The Crown say it is not at all because you had a positive identification from Mohammed Nawaz. Counsel on behalf of Mr Gojra, no, he should have been invited and it is rather cavalier of Mr Peel to have told you that he did not think it was necessary, given there had been one positive identification from Mohammed”.
74.	This in our judgment was a misdirection. It was not a question of whether it were desirable to hold a parade, rather there existed a positive obligation to hold one. Otherwise, once there was one positive identification the police could avoid the risk of another witness failing to make a positive identification, thus undermining their case. The Judge’s summing up may have given the impression that the failure to hold an ID procedure was of little consequence whereas he should have given a full Forbes direction.  
75.	It is at least possible that there was, for the Crown, a somewhat embarrassing difference between the evidence of DC Peel, who told the jury that identification by Haq was not necessary since one positive identification sufficed, and DS Wade, who explained the absence of a procedure which Haq could attend by Haq’s being out of the jurisdiction. Be that as it may, the consequential question is the effect on the safety of the conviction of the absence in the summing-up of mention of the breaches of the Code. That counsel for Gojra had addressed the jury on it is no answer - Gojra was entitled to the imprimatur of the court. The jury should have been told of the protection extended to a suspect by the statutory scheme. There should have been set out a reasoned path through the provisions so as to put in context the possible prejudice to Gojra as a consequence of the breach. The process did not need to be complex or wordy but it did need to be clear and unequivocal. Such guidance might have affected the jury’s approach to its task and we are persuaded that on this Ground Gojra must succeed. It follows that his conviction is unsafe and will be quashed.
Dhir
76.	His case was that he had no prior knowledge of the intentions of Gojra, Malone and Little.  He took no part in the violence inflicted and indeed was out of the room most of the time.   Thereafter, he was effectively kidnapped himself – a victim.   While he did not dispute that the Nawaz brothers were assaulted, he challenged the veracity of their accounts, stating that they were exaggerating and had a motive falsely to implicate him, namely for the property dispute to be resolved in their favour whilst he was out of the picture
77.	It is useful to reflect again upon the evidence of Miss Burroughs. She saw four men milling around a blue van. It faced Church Road, its offside nearer the buildings.   She described male 1(Malone), male 2 (Little), male 3 as white with short hair also wearing combat style trousers, and male 4 as Asian with medium complexion, black-gelled hair pushed back at the sides and feathered at the back, mid thirties plus, in a hip length black leather jacket - obviously Dhir.  Male 2 went back inside Aspect and came out guiding an unknown male into the back of the van while male 1 shouted commands. A further unknown male and males 1 and 4 then got in. Male 2 got into Dhir’s BMW.  She did not see male 3 again. 
Anna Frampton
78.	Following Dhir’s conviction, his family placed advertisements in the Hackney Gazette on 3rd of September and on 22nd of October 2009 appealing for witnesses to ‘anything unusual or men acting suspiciously on Friday 20th April 2007 between 8.00pm and 10.30pm.’ Anna Frampton contacted the enquiry agent retained by the family and on 26th October 2009 made a statement along the following lines:  On 20th April 2007 she had been in Booths Wine Bar in Church Street, Stoke Newington.  At approximately 10.30pm making her way on foot back to her car in the car park off Wilmer Place, near Aspect House she saw two males pushing an Asian in a black leather jacket against the side of a blue van.  At first she thought it a street robbery but then one white male, bearded, of average height, said to the Asian against the van, “Get in the fucking van and do what we say.”  The Asian refused, raised his voice, and was pushed by the two males (the other an Asian in combat trousers) towards the front of the van.  She asked the Asian being pushed were he all right but the white male told her to fuck off and mind her own business.  Assuming it was a drunken scuffle, she did.
79.	Although she did not see any assault on Mohammed and Haq, her evidence clearly supports the contention that Dhir was subjected to force by others.  The description of the slim, tall Asian  in a leather jacket who was threatened by the white and Asian males and eventually forced into the front of the van is consistent with Dhir’s account of being frogmarched into the front of a van by Malone.  It is submitted that had her evidence been received it might have affected the verdict.
80.	Dhir accepts a number of inconsistencies between the accounts of Miss Burroughs and of Mrs Frampton.  In a witness statement dated 25th April 2007 the former said that she might have been able to recognise males 1 and 4, whom she had never seen before to the best of her knowledge. However, at no point was she invited to an identification parade.  At trial since she had recently delivered a child she gave evidence via video link from her home.  
81.	From written submissions by Dhir it would appear that following conviction Miss Burroughs was contacted on his behalf. She is said to have confirmed that since living at her address she became aware of some of the occupants of Aspect House. She knew Choudhury and another Asian whom she now knows to be  Dhir to be business partners, and with each she would sometimes have a brief conversation. She is sure that of the men that she described in her original statement, none is Dhir.  Mr Owen QC took the view, rightly in our judgment, that it would be difficult to describe these later offerings as fresh evidence and thus he did no more than respond when the court having read his written submissions took him to this topic. Whether in due course it achieves relevance is not for us at this juncture.
82.	Mrs Frampton was re-interviewed shortly before the prosecution of Dhir’s application for leave. Her statement of 1st March 2010 together with her original statement taken by the enquiry agent were before us and we received her evidence de bene esse.  She has worked for Hackney Council for some 20 years including 7 years in security as a trained observer.  Her role involved witnessing drugs raids, viewing CCTV for security purposes and liaising with the police accordingly.  On the face of it, therefore, there is nothing to suggest she is not a credible witness whose evidence would have been admissible at the trial.  The explanation for her evidence not having been called was that she did not make herself known at the time as a potential witness, only coming forward in response to the recent appeal.  The question thus became whether her evidence alone would be sufficient to render the conviction unsafe, applying the Pendleton/Dias impact test.   If it be capable of amounting to fresh evidence and there exists a reasonable explanation for its absence from the trial then the argument is that Dhir’s convictions are unsafe in the light of it.
83.	It is noteworthy that Miss Burroughs, at her window, and some would say with an excellent view from a position of personal safety, did not mention seeing anyone on Wilmer Place save the four males.  If Mrs Frampton be truthful and accurate, that may seem surprising.  Be that as it may, without expressing any opinion on the likely outcome of the testing of the evidence of Mrs Frampton, we cannot describe it as incapable of belief. The jury, had it received it, might have derived assistance from it.  That being so, since we must accept as that her non-availability at trial is susceptible to a reasonable explanation, the inevitable conclusion is that Dhir’s conviction must be quashed as unsafe. We thus give him leave allow the appeal and quash his convictions.