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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 >> Ramadan El-Delbi, R v [2003] EWCA Crim 1767 (20 June 2003) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2003/1767.html Cite as: [2003] EWCA Crim 1767 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
(HHJ McDOWELL)
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE HOLLAND
and
MRS JUSTICE HALLETT
____________________
R |
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- and - |
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ZAKARIA RAMADAN EL-DELBI |
Appellant |
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Mr Brompton instructed for the Respondent
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AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Kay:
The ruling as to character
"According to Dutch law, a sentenced/convicted person is considered innocent until his or her sentence/conviction is irrevocable and no criminal record is (sic) been made."
"… in a sense it explains why we've been at odds as to whether there has been a conviction. What it says there is that according to Dutch law a convicted person is considered innocent until essentially the appeal procedure is complete, it doesn't count as a convicted person, no criminal record being made …So it seems to me that if it doesn't count as conviction as such in Dutch law, it couldn't be proved as a conviction in this court, and Mr El-Delbi, I would submit, would be entitled to having a description of someone who has no convictions, and a formula of that sort to put before the jury."
"I think it's a very difficult state of affairs. It appears that the defendant has been convicted of an offence in Holland, and in the parallel circumstances in this country he would be regarded as a convicted person and a conviction would be recorded on the relevant archives. It appears that the only distinction between the situation in this country and in the Netherlands is that it is not recorded or archived as a conviction until the appeal procedure is over. I find it difficult to see how in those circumstances the defendant could be entitled to the good character direction, even if it were to technically be correct to say that there was not a conviction recorded against him in the Netherlands."
"I'm bound to say that in terms of an instant reaction to it, I don't feel happy about misleading the jury, because this information does not exactly suggest, as I say, he's of good character."
Mr Woodcock responded:
"I didn't ask for that."
The judge made clear that he was equally unhappy for the jury to hear that the Dutch case related to money laundering because of the possible prejudicial effect.
"Mr Woodcock: So I don't seek an assertion that the defendant is of previous good character, and Your Honour will probably, in the light of the defendant's own evidence about tax evasion or avoidance, I always get the two confused
Judge: No, avoidance is legitimate, paying as little tax as you have to, evasion is not paying what you should be.
Mr Woodcock: But on that basis Your Honour probably thought it would be pushing the character direction in any event, but I don't seek that. But what I think I am entitled to is the direction as far as it can go, in terms of Mr El-Delbi is a person without previous convictions."
"I've discussed the matter with my Learned Friend. I have said to him obviously if he was satisfied with that the defendant could be described as a man who has been convicted on one occasion of an unspecified offence in relation to which appeal proceedings are pending. He doesn't wish to do that and I understand the reason, of course. But having said that, it seems to me that having regard to the fact that he has been convicted of an offence by a Dutch court, it would be inappropriate to mislead the jury by suggesting that he had never been convicted of an offence and then going onto give what must inevitably be a good character direction in those circumstances."
"I repeat in a sense what I said before, in Dutch law it's a procedure whereby the conviction doesn't count as a conviction until the appeal process is completed. It wouldn't count as a conviction in Holland; it shouldn't count for these proceedings. Therefore, it is not misleading to say he is a person without convictions, that being a term of answer in law. Now I indicated to my friend that I'd be happy with a formulation to say he is someone without a criminal record. But other than repeating everything that we've said before, it's becoming very circular, it seems a different procedure in Holland. But bearing in mind, as I understand it, that in a sense there's mutual recognition of each other's judicial systems, if it doesn't count as a conviction there it shouldn't count for these proceedings either."
"The problem arises in relation to any direction that might be given about the character of the defendant, Mr El-Delbi."
The judge then recited the factual background and then continued:
"It seems to me, that the one thing that would be inappropriate, would be to mislead the jury, by indicating that Mr El-Delbi had never been in trouble with the law.
It seems to me, that it would be legitimate, to indicate, that there is only one matter involving his appearance in a criminal court, which is, presently, the subject of an Appeal. That, it seems to me might well be acceptable, but it seems to me, to give a 'good character' direction, when it is known that he has, in fact, been the subject of a first instance conviction, which may, or may not, be confirmed in due course, to give the impression of good character then, would be wrong. It would be active misleading of the jury.
It seems to me, therefore, that the course that is open to the defence, is to indicate there is only one matter known, involving an appearance in a criminal court, and that that is currently the subject of an appeal process. I might even consider a different formula, saying that there is a matter which is still not finally concluded, or something of that sort. I do not think it can be right to give the impression of positive good character."
"I, therefore, rule, that if the defence wish, it would be appropriate for an admission to be made that there is a criminal matter in Holland, that is not finally disposed of, and that Mr El-Delbi is of, otherwise, good character. I do not propose to permit anything further than that.
I should say, of course, that if the defence wish to put the entire matter before the jury so that they understand the full position, they would be entitled to do that, but I rather think they would not."
(i) that the Judge was wrong in declining to allow the Appellant to be presented as a man of good character without qualification; and
(ii) that he should have given a full good character direction or in the alternative a good character direction restricted to its relevance to credibility.
"In appeal a criminal case will be adjudicated as is it were totally new, although some procedural acts do not have to be repeated and the court may in certain circumstances take into account what happened in the first instance – but it is never allowed to take what has been decided in that instance into account. The decision made by the court of first instance (conviction or not) may have no influence at all (but a higher penalty may only be imposed unanimously)."
"The conclusion has to be that, although no provision in statute law states this in so many words, under Dutch criminal law it is not allowed to derive a conclusion regarding the character of a person from his conviction for an offence, until his conviction has been irrevocably upheld on appeal or the time for lodging an appeal has elapsed."
" … we do not think that, in the absence of special circumstances which we do not at present envisage, the existence of outstanding criminal charges which have never been admitted or proved can possibly be regarded as a case where it is clear … that the defendant has been guilty of criminal behaviour similar to the offence charged. We further consider that, in a case where credibility is heavily in issue, as it was here, a favourable character direction of some kind is of great importance to the appellant."
"In regard to that application for leave, the judge would have been bound to have borne in mind the question of the relationship between prejudice and probative value involved in respect of such a cross-examination. The only argument which could have been advanced would have been either that the Crown sought to establish or suggest the appellant's guilt of the offence, in which case the judge would have been obliged to give her advice as to self incrimination."
"I would therefore hold that a trial judge has a residual discretion to decline to give any character directions in the case of a defendant without previous convictions if the judge considered it an insult to common sense to give directions in accordance with Vye."
Directions as to failure to mention matters
(i) he did not explain properly that an adverse inference could only be drawn if the jury were sure that the reason the defendant failed to mention relevant facts was that he had no answer then or none that would stand up to scrutiny;
(ii) he did not make sure that legal advice was to be taken into account and no inference could be shown if his reason for not mentioning relevant facts was a genuine reliance on such legal advice; and
(iii) he did not tell the jury that they could not consider drawing an inference unless the appellant had understood the caution.
"The Crown say this is not, in fact, the true position. He did appreciate what the position was, that if he did not give his account of himself now then that was because he wanted to know in full detail just what the Crown had got against him, so that he could then, if you like, adjust his story to fit factual matters that he could not argue with – I mean, to know whether he had been observed, what documentation he had got, or whatever."
Later he continued:
"I mean the Crown say that there is no reason why he should not have (given at least in broad detail all the material he is putting before you), no valid reason except, of course, he had not had a chance to prepare his story."
"And I hope I have made absolutely plain to you, it is for the Crown to establish that, if you like, there is no good reason why he was not answering questions."
Appeal against sentence