Neutral Citation Number: [2013] EWCA Crim 1053
Case No: 2012/07228/C3

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
ON A REFERENCE FOM THE CRIMINAL CASES REVIEW
COMMISSION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/06/2013
Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE OPENSHAW
and
MR JUSTICE STEWART
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Between:

	Regina	Respondent	
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	ALI REZA TAHERY	Appellant	

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Rebecca Trowler QC for the Appellant
Louis Mably (with David Perry QC on the written grounds in opposition) for the Respondent

Hearing date: 6 June 2013
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Judgment

The President of the Queen’s Bench Division: 
Introduction
1.	In this reference from the Criminal Cases Review Commission the appellant appeals against his conviction of wounding with intent at the Crown Court at Blackfriars on 29 April 2005 before HH Judge Byers and a jury.  He was sentenced to 9 years imprisonment.  During the trial, the statement of Mr Takhtshahi was admitted and then read to the jury under the hearsay provisions of the Criminal Justice Act 2003 (CJA 2003), as the judge found that Mr Takhtshahi was too frightened to give evidence.
2.	On 24 January 2006 this court (Rose LJ, the then Vice-President), Rafferty J and Sir Douglas Brown) refused leave to appeal against conviction on the basis that the judge had followed all the paths set out in the CJA 2003, had properly admitted the statement and properly directed the jury on it.  The Court, however, reduced the sentence to 7 years imprisonment.
3.	The appellant then applied to the Strasbourg Court on the basis that the admissibility of the evidence contravened his rights under Article 6 of the Convention.  On 29 January 2009 the Fourth Section declared the application admissible and found a breach of Article 6: see Al-Khawja and Tahery v UK (2009) 49 EHHR 1.  The case was referred to the Grand Chamber, but its decision deferred until after the delivery of the judgment by the Supreme Court in the appeal in R v Horncastle [2009] UKSC 14.
4.	On 15 December 2011 the Grand Chamber held that there had been a violation of Article 6 in the trial of the appellant through the admission of the statement of Mr Takhtshahi, awarded him €6000 and costs: see Al-Khawja and Tahery v UK  (2012) 54 EHHR 23.  On 12 April 2012 the appellant applied to the Criminal Cases Review Commission for a review of the conviction.  The Commission decided to make a reference to this court on 20 December 2012.  The issue for this court to determine was whether in all the circumstances the conviction was safe.
5.	After consideration of the detailed written submissions and a short hearing, we allowed the appeal and quashed the conviction for reasons to be given later.  These are our reasons.
The issue
6.	The issue in the appeal turns, in our view, on a reconsideration of the evidence and the directions to the jury in the light of the decision in R v Horncastle.  We are bound by that decision and will apply the principles there set out.  There have been some suggestions that there is a difference between those principles and the principles set out by the Grand Chamber in Al-Khawja and Tahery v UK, see: R v Ibrahim [2012] EWCA Crim 837.  We consider that the differences are properly described (as they were by the then Vice-President, Hughes LJ) as being more of form than substance, see: R v Riat [2012] EWCA Crim 1509.  Even if the differences are of substance, none is material to the present case. 
7.	It is therefore neither necessary nor desirable for us to express any further view on the issue considered in Ibrahim and Riat; what courts should in practice do is clearly set out Riat.  As we are simply concerned with the circumstances of this case, we turn at once to consider the evidence at the trial, the significance of the evidence set out in the statement of Mr Takhtshahi, its apparent reliability and the ability of the jury to test and assess that reliability.
The evidence at the trial
(a)	The background
8.	At about 12.30 am in the night of 18/19 May 2004, Mr Sadeghi was stabbed.  Earlier in the night, the appellant was with some Kurdish friends in the street when he saw Mr Sadeghi whom he knew.  Mr Sadeghi was working as a pizza delivery man.  There was an altercation between Mr Sadeghi and the Kurdish men.  Mr Takhtshahi who knew both the appellant and Mr Sadeghi heard of the incident and agreed to meet after Mr Sadeghi had finished working.
9.	Mr Takhtshahi and Mr Sadeghi met in Kensington at the corner of Hammersmith Road and Avonmore Road at about midnight.  The appellant then arrived and told Mr Sadeghi that he wanted a word with him.
10.	It is clear that they went into Avonmore Road where a fight broke out; present were the appellant, Mr Sadeghi, Mr Takhtshahi, the appellant’s uncle, Mohammed and at least two other Iranian men and some Kurdish men.  It is also clear that during the fight, the appellant and Mr Sadeghi fought.  In the fight Mr Sadeghi was stabbed three times in the back.  Beyond that, the critical evidence conflicts.
11.	The issue at the trial and for us is whether the Crown had proved that it was the appellant who stabbed Mr Sadeghi or whether he may have been stabbed by one of the others present.  The issue turns on the evidence of those present which were before the jury at the trial; forensic evidence does not assist.
(b)	The account of Mr Sadeghi
12.	Mr Sadeghi said that after a verbal confrontation between him and the appellant, a fight between them broke out shortly after they had gone into the alleyway.  After a minute he realised he had been injured.  He tried to hold onto the appellant who said it was not him.  He threw a couple of punches at the appellant, but they did not connect.  The appellant placed his hand on his wound and sat him down.  He recalled that there were a group of Iranians there when the fight started and a few people were near him when he was stabbed.  In his cross examination he said that he did not see the appellant behind him; they were face to face.
(c)	The admission of Mr Takhtshahi’s statement and his account
13.	The judge heard evidence from Mr Takhtshahi from behind a screen that he had received threats and was in fear for himself and his family.  A police officer gave evidence that the Iranian community of which he and the appellant were members were close knit; his fears could not be overcome by the use of screens.
14.	 As a result of that evidence, the judge found that Mr Takhtshahi was genuinely in fear, but that it was not the appellant who had put him in fear.  The judge then considered whether it was in the interests of justice to admit the statement.  He accepted that there was a risk that the statement was unreliable as it was inconsistent with the other evidence, but that was the position in many cases; it was for the jury to assess its reliability.  He would give them an appropriate warning.  He also accepted that the statement was of great importance, but Parliament must have had in mind such a statement from a witness in fear being put before the jury.  It was not unfair as evidence could be called in rebuttal, including evidence from the appellant; there was no other way in which the evidence could be put before the jury as Mr Takhtshahi had declined to give evidence even if screens were provided.  The judge therefore admitted the statement.
15.	In his statement Mr Takhtshahi said that the appellant took hold of Mr Sadeghi and told him to go round the corner.  They went round the corner and began to fight.  He tried to break them up.  He then saw the appellant with a knife in his right hand.  He held it in the air and then stabbed Mr Sadeghi twice in the back.  The appellant was very angry.  He went towards the appellant who then tried to stab him with the knife; he tried to grasp it, but the appellant tried to stab him in the neck.  The appellant dropped the knife.  No one picked it up.  Mr Sadeghi tried to hit the appellant, but fell to the ground.  The appellant hugged him and they then sat on a step.  The appellant asked him if they would take Mr Sadeghi to hospital and not tell the police, but he phoned the police.
16.	When asked about the incident at the scene, Mr Takhtshahi had not made these allegations against the appellant.
(d)	The appellant’s account
17.	The appellant’s evidence was that Mr Sadeghi started to punch him to the face, causing his face to swell.  He did nothing at first and then started to defend himself.  Mr Takhtshahi came to separate them.  Others came to help.  When Mr Takhtshahi was between him and Mr Sadeghi he noticed a knife on the ground.  He thought it was Mr Sadeghi’s knife and threw it away.  He did not know that Mr Sadeghi was injured.  
18.	Mr Sadeghi then accused him of knifing him.  It was then he realised Mr Sadeghi was injured.  He told Mr Sadeghi to sit down.  He held his wound.  When the ambulance arrived, he said that he did not do it and Mr Sadeghi said he knew that.
19.	He did not give that account initially; instead he said that two black men had stabbed Mr Sadeghi; he made a statement to that effect and maintained that account in interview.  He accepted that this was a lie and as a consequence he pleaded guilty to an offence of perverting the course of justice.
Our conclusion
(a)	Should the statement of Mr Takhtshahi have been admitted?
20.	In her very able submissions, Miss Trowler QC submitted that the statement of Mr Takhtshahi should not have been admitted. 
i)	The evidence was effectively the only evidence that it was the appellant who stabbed Mr Sadeghi.
ii)	It was unsupported by other evidence.
iii)	Although Mr Takhtshahi was, as the judge found, in fear, there was no evidence that it was appellant (or anyone acting on his behalf) who had brought this about.
iv)	There were factors that, when taken in combination, created very substantial doubt as to the reliability of the evidence.  In particular Mr Takhtshahi had a motive to lie; he was a friend of Mr Sadeghi and ill disposed towards the appellant and his Kurdish associates.  The statement was inconsistent with the evidence of Mr Sadeghi.
v)	There was no evidence available to the appellant with which to challenge the statement.
vi)	The appellant was unable to call other witnesses as they were all members of the “tight-knit” Iranian community;
vii)	In these circumstances, neither the opportunity for the appellant to give evidence nor any direction to the jury could redress the disadvantage to the appellant.
viii)	Therefore, no fair assessment of the reliability of the evidence could be made by the jury.
21.	None of these matters is in itself decisive.  We have to consider their cumulative effect.
(b)	The direction to the jury
22.	In his direction to the jury, the judge warned them that they must be careful how they used the statement.  He said:
“It is right, as has been pointed out by the defence, that they were deprived of an opportunity to test that evidence under cross-examination. It is right also that you did not have the advantage of seeing the witness and his demeanour in court. You did not have the opportunity for him to think back and say ‘possibly, because of things that I saw, I put two and two together and made five’, as counsel for the defence invites you to say. In other words, you must always be alert to that he could put things that he did see together and come to the wrong conclusion. That is a way of examining his statement. 
You must ask yourselves, ‘can we rely on this statement? Is it a statement which we find convincing?’ It is only if you are satisfied so that you are sure, that what is in that statement has accurately depicted what happened that night and what the witness saw, that you could rely upon it. That goes for any witness. It is only if you find that the evidence is compelling and satisfies you, so that you are sure, that you act upon it. So you must always ask yourselves ‘is the statement that he made reliable?’
You must bear in mind also, importantly, that it is agreed and acknowledged that it is not the defendant who is responsible for putting the witness in fear. Nobody has suggested that it was the witness who stabbed Mr Sadeghi. Your task, therefore, is to look at the evidence that he gave to you, and you cannot have a copy of his statement so do not ask for one. Look at the evidence that he gave. Look at it carefully. If it is compelling, you may act upon it, if you are satisfied that it is true and accurate.”
23.	However the judge did not:
i)	Direct the jury that the evidence of Mr Takhtshahi was critical in the case and there was no other supporting evidence.  They should therefore be very careful before accepting it was true, particularly as he had made no allegations against the appellant when first questioned at the scene.
ii)	Emphasise how important cross examination could be in exposing weaknesses in the evidence of a witness.
iii)	 Explain that it was a common experience that witnesses did not say precisely what they said in a statement and Mr Takhtshahi had no opportunity of qualifying what he had said.
iv)	Explain that, as the statement was taken by the police and Mr Takhtshahi’s English did not appear to be very good, the jury had to take into account the fact that the statement might not reflect what Mr Takhtshahi actually intended to say.
(c)	Our conclusion
24.	It is evident from an examination of the directions given to the jury and the matters which were not included, that the judge would not have been able to direct the jury as to how they could assess and test the reliability of the evidence of Mr Takhtshahi in such a way that they could be satisfied that it was reliable.  The objective factors pointed to its unreliability – his animosity to the appellant and his contradictory initial statement to the police.  There was no evidence that supported his account that the knife was used by the appellant.  There was, moreover, in reality no evidence which the appellant could call to rebut it.
25.	If the jury did not have any means to assess its reliability, then given the factors pointing to its unreliability and its importance in the case, it should not have been admitted.  Furthermore the directions given by the judge would not in any event have been sufficient. 
26.	We therefore considered the conviction unsafe, allowed the appeal and quashed the conviction.