Apabhai, R. v

Evidence of a co-accused’s misconduct may fall within section 98(b) of the Criminal Justice Act 2003 where it is sufficiently connected with the investigation or prosecution. Where relevant evidence is tendered by one accused against another, the judge has no residual discretion to exclude it for prejudice or to avoid satellite issues.

Alternatively, under section 101(1)(e), evidence supported by proposed testimony may have substantial probative value if it is more than trivial. An erroneous exclusion will not render a conviction unsafe unless it caused material injustice. A sentencing judge must make an independent assessment of culpability and is not bound by the prosecution’s view of relative roles.

Hashib Apabhai, Adam Amani and Esa Apabhai were convicted unanimously at the Crown Court at Southwark of conspiracy to cheat the Public Revenue in a large VAT missing-trader intra-community fraud. Hashib Apabhai received seven years and six months’ imprisonment; Amani received six years; and Esa Apabhai received seven years and six months.

Hashib Apabhai appealed against conviction. He contended that the trial judge wrongly excluded evidence that Amani had attempted to blackmail him shortly before trial, and wrongly refused to admit Amani’s old arson convictions. Amani and Esa Apabhai appealed against sentence, principally challenging the judge’s assessment of their relative roles and mitigation.

1. The conviction appeal and both sentence appeals were dismissed. The trial judge erred by excluding the proposed blackmail evidence, but the conviction was safe.

2. The alleged demand for money in return for not giving false evidence against Hashib Apabhai was evidence of misconduct connected with the prosecution within section 98(b) of the Criminal Justice Act 2003. Its significance was not merely that it suggested Amani’s bad character. It could bear directly on Amani’s motive to implicate his co-accused and on the reliability of his evidence.

3. Relevant evidence tendered by one accused against a co-accused is not subject to a residual discretion to exclude it for unfair prejudice, under section 78 of PACE or at common law. Concerns about satellite litigation could not justify exclusion. In the alternative, the proposed evidence was capable of satisfying section 101(1)(e): it was not a bare assertion, and, if accepted, would have had more than trivial probative value.

4. Nevertheless, the omission caused no material injustice. Amani already had powerful and obvious motives to shift responsibility to Hashib Apabhai, including self-preservation and the loss of mortgage money. The proposed incident would not materially have altered the jury’s assessment. The circumstantial evidence of Hashib Apabhai’s participation was also very strong.

5. The old arson convictions were properly excluded. In the absence of evidence of their circumstances, the judge could not speculate that they showed insurance fraud, retribution, or a relevant propensity.

6. On sentence, the judge was entitled to assess each offender’s culpability independently of the prosecution’s analysis. The findings that all three appellants had played substantial roles were neither unreasonable nor affected by misdirection. The differentials, including the allowance for Esa Apabhai’s youth and family influence, were not manifestly wrong.

• Court of Appeal (Criminal Division): Hashib Apabhai’s appeal against conviction was dismissed. Adam Amani’s and Esa Apabhai’s appeals against sentence were dismissed.
• Crown Court at Southwark: On 7 and 8 January 2010, the three appellants were unanimously convicted of conspiracy to cheat the Public Revenue and sentenced to terms of imprisonment.