Singh v R

A trial judge may, in an appropriate case, direct a jury on a factual version which neither prosecution nor defence has advanced where their respective cases leave an incomplete range of available conclusions. The direction must remain fair to the defendant.

In a conspiracy trial, the jury may consider evidence that an uncharged person was a conspirator even though the prosecution does not allege that person to be one. A conviction remains dependent on proof that the defendant conspired with at least one alleged conspirator. The possibility that a defendant’s spouse was also involved does not itself make the direction unfair.

The appellant was convicted at Birmingham Crown Court of conspiracy to cheat the public revenue through a mobile-phone missing trader intra-community fraud. His appeal arose from a retrial after the jury at an earlier trial had failed to reach a verdict in his case.

The prosecution alleged that he conspired with members of the Chahal family. His wife, Sarbjit Singh, was not named as a conspirator and the prosecution did not invite the jury to find that she was one. Evidence given by a co-defendant nonetheless permitted such a finding.

The judge directed the jury that it could consider whether she was a conspirator, while requiring proof that the appellant had conspired with at least one named conspirator. The central issue was whether that alternative route and direction deprived the appellant of a fair trial.

1. Appeal dismissed. The judge was entitled, in the unusual circumstances of the case, to leave to the jury the possibility that the appellant’s wife was a conspirator even though the prosecution neither named nor alleged her as one.

2. The court accepted the principle stated in Williams (1994) 99 CR. App. R. 163: where the cases advanced by prosecution and defence leave the jury with an incomplete range of factual conclusions, the judge may have to direct upon a version of events advanced by neither side. The judge’s power was, however, subject to the overriding requirement of a fair trial.

3. The direction did not permit conviction merely for an agreement between husband and wife. The jury had to be sure that the appellant had conspired with his wife and at least one named conspirator, or had conspired with at least one named conspirator without her. Unless the jury was sure of an agreement with one of the named Chahal conspirators, the appellant could not be convicted.

4. The court rejected the submission that the direction was unfair because the defence might have called the appellant or his wife had it known that this route would be left. The defence knew that substantially the same issue had arisen at the first trial. Counsel could have sought the judge’s assurance after the relevant evidence was given. The court concluded that counsel had instead sought the tactical advantage of contending that the wife was more involved in the company but was not a conspirator.

5. The prosecution was entitled not to rely upon evidence from a co-defendant whom it did not accept as truthful. Its position that the appellant had conspired with the Chahals, and that his wife’s position was irrelevant to its case, did not preclude the judge from giving the legally accurate direction.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2011] EWCA Crim 2992.
• Crown Court at Birmingham: the appellant was convicted on 31 March 2011 of conspiracy to cheat the public revenue following a retrial.