Athwal & Anor, R v

A criminal trial should be stayed for abuse of process only where the accused establishes that a fair trial cannot be achieved and the trial process cannot cure the prejudice. Difficulties in investigation, including those caused by third parties or overseas events, will usually be addressed by evidence, submissions and judicial directions.

A previous statement admitted to rebut an allegation of fabrication is admissible as substantive evidence under Criminal Justice Act 2003, section 114(1)(a) read with section 120(2). The relevant inquiry is qualitative, not a rigid measure of how recently the alleged invention arose. Mere prior consistency is insufficient.

Bachan Kaur Athwal and her son, Sukhdave Singh Athwal, were convicted at the Central Criminal Court of the murder of Sukhdave’s wife, Surjit, who disappeared in India in December 1998. The prosecution case depended substantially on circumstantial evidence and on evidence from family witnesses that Bachan had disclosed the planned killing and its execution.

They appealed against conviction, alleging unfairness because the defence lacked adequate means to investigate in India. They also challenged the admission of Sarbjit’s earlier statements to her father and sister after the defence had alleged fabrication. Both appellants appealed their minimum terms, and Sukhdave also appealed a confiscation order.

1. Convictions dismissed. The trial was not an abuse of process and the convictions were safe. A stay is exceptional. Although the defence had limited opportunity to investigate in India, the disputed and decisive evidence concerned events and conversations in England. The defence could test that evidence, Bachan gave her own account of India, and the jury received adequate directions about delay, distance and the limits on investigation. The trial process was capable of addressing the asserted prejudice, consistently with Momodou [2005] EWCA Crim 117.
2. Previous statements. The trial judge was entitled to find that the cross-examination conveyed an allegation that Sarbjit’s account had been invented shortly before she approached the police. Her earlier disclosures could therefore rebut that allegation. The judge should, however, have considered admissibility under the statutory hearsay regime rather than solely by reference to common law.
3. Under Criminal Justice Act 2003, section 114(1)(a), a statement admitted to rebut fabrication is admissible as evidence of the matters stated because section 120(2) gives it that effect. Section 120(2) regulates the effect of admission rather than supplying the gateway by itself. The omission caused no injustice: the earlier recipients gave evidence and were available for cross-examination, and the judge’s direction treating the statements only as evidence of consistency was favourable to the defence.
4. The court added that fabrication in section 120(2) is not confined by a temporal rule. Prior consistency alone does not justify admission. There must be a qualitative change in circumstances, absent when the earlier account was made, which gives the earlier substantially similar account a fair capacity to assist the jury in deciding where the truth lies.
5. Sentence allowed. The minimum terms were manifestly excessive. Bachan’s age, likely consequence of dying in prison, and grave cultural difficulties justified reducing her term from 20 to 15 years. Sukhdave’s term was reduced from 27 to 20 years because of unjustifiable disparity, particularly as Bachan was the instigator, and because the aggravating features had taken his term close to the starting point reserved for very rare cases.
6. Confiscation dismissed. Sukhdave had failed to discharge the burden of showing that his realisable assets were below the accepted benefit figure. The judge was entitled to refuse the late attempt to obtain evidence from family members and to find that the funds had been manipulated to avoid the consequences of conviction.

• Court of Appeal (Criminal Division). Conviction appeals were dismissed; the appeals against minimum terms were allowed; and Sukhdave’s confiscation appeal was dismissed: [2009] EWCA Crim 789.
• Central Criminal Court. On 26 July 2007, Bachan and Sukhdave were convicted of murder and sentenced to life imprisonment with minimum terms of 20 and 27 years respectively. A confiscation order was subsequently made against each appellant.