Bhagchandka v R.

An absent co-accused’s assertion, recorded in a defendant’s police interview, is not evidence against the defendant on conventional grounds. Unless it is properly adduced under the Criminal Justice Act 2003, the offending passage should be excluded and should not be used in cross-examination.

A direction that the jury should not rely on the assertion does not adequately cure its wrongful admission. A conviction is unsafe where the appellate court cannot be sure that the jury disregarded such material, particularly where the issue depends on a contest of oral evidence. A Lucas direction is not required for every possible lie. It is a safeguard where the Crown relies on a lie as specific support for its case.

The applicant was convicted at the Crown Court at Blackfriars of perverting the course of public justice and dangerous driving. He had driven a Range Rover at excessive speed in central London, causing it to overturn. The co-accused, who was absent when the applicant was tried, had claimed to police that he had been driving.

The prosecution relied principally on evidence that the applicant told an officer that he had been the front-seat passenger. The applicant denied making that statement. His recorded police interview also contained an officer’s account of the co-accused alleging that, before police arrived, the applicant had asked him to say that he was the driver.

The appeal concerned whether the admission and use of that allegation made the conviction unsafe, whether a Lucas direction was required, and whether the sentence for dangerous driving was excessive.

1. The appeal against conviction was allowed. The conviction and sentence for perverting the course of public justice were quashed. The co-accused’s allegation, repeated in the applicant’s interview, was not properly evidence against the applicant. No application had been made to adduce it as hearsay under the Criminal Justice Act 2003. It should have been removed from the interview transcript and should not have formed the subject of cross-examination.

2. The summing-up did not cure those irregularities. A direction that the jury should not rely on the co-accused’s comment to convict did not clearly direct them to ignore it. The issue was a narrow conflict between the police officer’s account and the applicant’s denial. The court could not be sure that the jury took no account of the inadmissible material and considered that it was likely they gave it some weight.

3. The conviction could not be upheld on an inference that the applicant and co-accused must have agreed that the latter would falsely claim to be the driver. That case had not been put to the jury with the necessary directions on drawing an inference. Nor was the suggested inference irresistible, since the co-accused might have volunteered the assertion for his own reasons.

4. No Lucas direction was required on the applicant’s asserted lack of awareness of the co-accused’s conversation with police. Such directions safeguard against the Crown’s reliance on lies as specific support for its case; they are not required for every peripheral potential lie. The omission could not itself have made the conviction unsafe.

5. The sentence appeal was allowed in part. The dangerous driving was serious, involving sustained high-speed urban driving, passenger protests and an overturned vehicle. Nevertheless, 12 months’ imprisonment and five years’ disqualification were excessive. The court substituted six months’ imprisonment and three years’ disqualification, while maintaining the requirement to pass an extended driving test.

• Court of Appeal (Criminal Division): Leave to appeal against conviction and sentence was granted. The conviction and sentence on count 1 were quashed. The sentence appeal on count 2 was allowed to the extent of reducing the custodial sentence and disqualification period.

• Crown Court at Blackfriars: On 12 February 2016, the applicant was convicted of perverting the course of public justice and dangerous driving. He received concurrent sentences of 15 months and 12 months’ imprisonment, a five-year driving disqualification and an extended driving test requirement.