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Published: Wed, 07 Mar 2018

R v Lidar

No. 99/0339/Y4

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2A 2LL

Thursday 11 November 1999

B e f o r e:

LORD JUSTICE EVANS

MR JUSTICE ALLIOTT

and

MR JUSTICE JACKSON

____________________

R E G I N A

– v –

NARINDER SINGH LIDAR

____________________

Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

Telephone 0171-421 4040

(Official Shorthand Writers to the Court)

____________________

MR M BECKMAN QC and MR S TUDWAY appeared on behalf of THE

APPELLANT

MR J MILMO QC and MR L SMITH appeared on behalf of THE CROWN

____________________

J U D G M E N T

(As Approved by the Court)

____________________

Thursday 11 November 1999

LORD JUSTICE EVANS:

In December 1998 the appellant Narinder Singh Lidar was charged with murder

before Scott Baker J and a jury at the Leicester Crown Court. He was acquitted

of murder but convicted of manslaughter by a unanimous verdict. He was sentenced

to five years’ imprisonment. He now appeals against conviction by leave of the

single judge.

The victim was Kulwinder Singh Soor, who was known as Kully and who worked as a

doorman at the Dove Public House at Downing Drive, Leicester. The appellant was

at the public house with three others, including his brother Surdhal, known as

“Sid”, on the evening of 7 February 1998. They were joined by two

others, one of whom was Balbir Singh Atwal (“Mr Atwal”). A dispute

arose involving other members of the group, but not the appellant. The deceased

Kully intervened and the situation became tense. The group was ejected from the

public house but the dispute between them, though not the appellant, and the

deceased continued there. Mr Stephen Bacon, who was the bar supervisor, and

another doorman intervened and they told the group to leave the car park. Their

vehicle was a Range Rover and the appellant got into the driver’s seat. The

others were slow to join him, and he got out of the vehicle in order to help Mr

Bacon, as it was put, to get the others into it. This was achieved, and the

appellant’s brother Sid was sitting in the front passenger seat. In the rear

seat, Mr Atwal was behind the front passenger seat, and Lakhber Singh Hoffey was

in the centre position.

A clear account of what followed was given by Mr Bacon, whose evidence is

relied upon by Mr Michael Beckman QC, counsel for the appellant. Kully and

another person were standing in front of the vehicle. The appellant revved up

the engine and moved it forward a couple of feet, but then stopped. This was

clearly intended to get them to move out of the way and they did so. Then,

“A. The gentleman in the passenger seat shouted something to Kully which

I couldn’t hear.

Q. Did Kully do anything at that point?

A. He went to the side of the vehicle, the passenger side.

Q. And what did he do when he got to the passenger side?

A. Started arguing.

……….

A. Then Kully approached the vehicle and put his arms through the open

window.

Q. When you saw him putting his arms through the open window what impression

did you get of what he was doing?

A. Fighting.

Q. How much of Kully got into the car at that stage, how much of his body?

……

A. He was like half through the window.

Q. What was the next thing that happened?

A. The car started to pull away.”

Mr Bacon’s evidence continued that the car moved towards the exit from the

car park and onto the main road. “It didn’t pull very fast out of the car

park until it got to the main road but it turned left”. Kully was

“Still halfway in the window” and the car “sped up the

road”. The tragic consequence was that Kully was carried about 225 metres

when his feet caught in the near side rear wheel and he fell to the ground and

was run over, suffering severe crush injuries to his chest. He was pronounced

dead about two hours later. Post mortem evidence showed that he had received a

number of slash injuries to the face, caused by a sharp instrument but not

necessarily by a knife, but there was no suggestion that the appellant was

responsible for inflicting those wounds.

Evidence of what happened inside the vehicle was given by Mr Atwal, whom Mr

Beckman described as the “star witness” for the defence. He confirmed

Mr Bacon’s evidence and, in particular, that Sid in the passenger seat shouted

something to Kully. Then “Kully just jumped in with a punch towards Sid

through the window”. He was unclear whether the vehicle was still

stationary when this occurred –

“Q. Where was the car when these words were said? A.It was still in the

same place and they were about to move off, well I think it was moving at the

time ….. I think it was slightly moving at the time”.

Later, he said: “The car started to move first and Kully jumped in with

a punch”.

Mr Atwal’s evidence was that he said “Kully leave it, Kully leave it”

but that Sid, the passenger, “said to the driver, drive, I don’t know if he

said he was scared or what, but he said drive, [the passenger and] the driver

drove the car …. I think he said drive, you know, come on, let’s go ….. I

said: slow down, I said stop”. At this point, the car was moving and “Kully

was sort of running with the car right, and his hands were in the passenger

seat. Either he was hanging on or he was sort of punching back at Sid”.

“Q. Kully was running with the car?

A. Yes, more or less, sort of hanging out, you know …. I couldn’t see because

the seat was right in front of me but they were either holding each other or

punching each other, you know”.

Then he said:

“A. They were about to move off and I said slow down, you know, and I

think he said “No, drive”. Right. And then the driver turned on and I

kept saying “Stop, Stop” you know and then when I did say that he sort

of slowed down a bit when he slowed down and Kully fell off”.

Mr Atwal’s evidence also included:

“…. I was just sort of looking that way at the driver telling him to

slow down and looking at Kully outside ….. I told the driver to slow down and

stop …. they was going fast, I don’t think Kully kept up with the running, you

know, I couldn’t actually say how fast but Kully wasn’t running at the car this

time, he was hanging on …. His head was sort of in the, his arms were all in

the thing, he must have been holding on to either the driver or the seat ….. I

think the front passenger he was either holding on to him …. It [the vehicle]

turned left, went on, and Kully was still with the, hanging out, you know,

hanging on to it, and then when I said slow down, he slowed down, either Kully

let go and fell down ….”,

and later —

“Q. So we’re on Downing Drive, the passenger has said: drive faster.

What has the driver done?

A. He drove fast and I said: slow down, slow down, stop and then he ….. slowed

down and then Kully fell down, fell out”.

Asked “How quickly did the car accelerate?” He answered:

” He put his foot down and he went, what do you mean, how quick …..

Well, it was obvious that he was going to get, Kully was hanging out, you know,

I was worried about him …..

Q. So what was obvious to you?

A. That he was going to get hurt …. because the car was going fast”. He

said that he looked back, saw Kully on the ground and he asked them to stop the

car, but they, meaning the appellant and Sid, insisted on driving on.”

There was also evidence, which the appellant does not challenge, that the

centre rear seat passenger leant forward between the two front seats and joined

in the fighting. It was also accepted that either he or Sid inflicted the

slashing injuries, with whatever weapon, but it was not alleged that the

appellant was aware of this. There was also evidence that the vehicle reached a

speed of about 30/ 40 mph and that the time taken to travel along the road was

less than 15 seconds. It may also have weaved or swerved slightly from side to

side.

The murder charge

The prosecution alleged that the appellant as the driver of the vehicle

intended to kill or at least to cause serious injury to Kully. In this context,

the defence relied upon Mr Bacon’s evidence that the appellant had the

opportunity of injuring or even killing Kully when he was standing in front of

the vehicle before it moved off. Instead, the appellant had revved up the engine

and moved forward only a short distance, in order to make Kully move aside. The

appellant’s evidence was that he knew the deceased and had no reason to injure

him. There was confusion in the car park and people were telling him to get

away. After he started to move off, he realised the deceased was at the window,

grappling with Sid. He just wanted to get away and drove in a straight line.

Somebody came through the back seat, but he did not know what they were doing.

He did not know when the deceased fell off. There was a lot of noise in the car,

then everyone was quiet. He saw the deceased and Sid fighting and he thought

that if he drove off the deceased would get off the car. The deceased was being

aggressive and the appellant just wanted to get away.

The submission of no case to answer at the close of the prosecution case as

to murder or manslaughter was rejected by the judge. Later, before counsel

addressed the jury, the judge heard submissions with regard to the issues that

should be dealt with in the summing-up and specifically whether there was

evidence to support defences of lawful self-defence and duress or necessity.

This has been the main ground of appeal argued by Mr Beckman before us. The

judge ruled that neither defence should be raised. He quoted from the judgment

of Stephenson LJ in Bonnick (1977) 66 Cr App R 266 at 269:

“When is evidence sufficient to raise an issue, for example of

self-defence for it to be left to a jury? The question is one for the trial

judge to answer by applying common-sense to the evidence in a particular case.

We do not think it right to go further in this case than to state in our view

that self-defence should be left to the jury when there is evidence sufficiently

strong to raise a prima facie case of self-defence if it is accepted. To invite

the jury to consider self-defence upon evidence which does not reach this

standard would be to invite speculation. It is plain that there may be evidence

of self-defence even though a defendant asserts that he was not present and,

insofar as the judge told the jury the contrary, he was in error. But in the

nature of things it would be fairly cogent evidence when the best available

witness disables himself by his alibi from supporting it”.

The judge continued:

“This is not an alibi case. The defendant accepts that he was there and

he accepts that he was driving the car. No one is in a better position than he

to raise the defence of self-defence in this case if it, in truth, is a matter

which requires to be considered. I ask myself the question: is there any

evidence that the defendant believed or may have honestly believed that it was

necessary to defend himself or his brother and therefore drove the vehicle in

the manner he did over the distance that he did?

In my judgment, the question of self-defence in this case comes into the

speculative category referred to by Stephenson LJ in the case of Bonnick. It

would do no advantage to the defendant to leave self-defence in this case. It

would, in my judgment, simply confuse the jury and be liable to deflect them

from consideration of the true issues in the case”.

He added:

“it seems to me that once I am satisfied that no question of

self-defence arises in this case, the question of a defence of necessity

likewise falls away. Because I cannot see there is any way in which it could add

in the circumstances of this case to self-defence were that properly to

arise”.

The Summing-up

The relevant direction of law as regards manslaughter was this:

“In order for manslaughter to be proved in this case, the Crown have to

prove that the defendant acted recklessly. Recklessly in this context means that

the defendant foresaw that some physical harm, however slight, might result to

Kully from driving the car as he did and yet ignoring that risk he nevertheless

went on to drive as he did. Mere inadvertence is not enough. The defendant must

have been proved to have been indifferent to an obvious risk of injury to health

or actually to have foreseen the risk but to have determined nevertheless to run

it. If you are sure that the defendant acted recklessly you find him guilty of

manslaughter. If you are not sure you find him not guilty”.

Two other passages, which are the subject of criticism by Mr Beckman, should

also be quoted:

“Next, a general word about the evidence and your approach to it before

we come to consider it in detail. You may think that the critical period in this

case begins once the car was out of the car park and in the road. There is no

evidence that anything of great gravity occurred before then and there is

certainly no evidence that anybody was hurt. Perhaps most importantly, members

of the jury, there is not a shred of evidence that the defendant put a foot

wrong or behaved in any way even inappropriately. The early part of the evidence

is therefore you may think background.”

Later the judge said:

“So, members of the jury, you have here a pretty consistent story, you

may think, of what was happening in the early stages with some variations as to

detail but you may think it is of value really no more than as background.”

Grounds of Appeal

The single judge gave leave limited to the self-defence issue only. Almost

all of the other grounds have been renewed before us, but as will appear below

we are only prepared to give leave in respect of two of them, the defence of

necessity and the criticism of the judge’s references to “background”

evidence. We give leave on these two further issues, not because we consider

that there is any substance in them, but because Mr Beckman’s submissions ranged

widely over them as well as the self-defence issue. We therefore feel that it is

appropriate to consider these three matters within the scope of the appeal.

At the outset of the appeal hearing, and without advance notice, Mr Beckman

applied for leave to add a further ground, which is to the effect that the judge

ought to have directed the jury that this was a case of “gross

negligence” manslaughter which they should approach in accordance with the

House of Lords’ judgment in Adomako [1995] 1 AC 171. Whether the submission was

that the “gross negligence” direction should be given in addition to

or in substitution for the “recklessness” direction in fact given was

not made entirely clear, but there was no complaint about the terms in which the

direction was given, if “recklessness” was appropriate. The

application to add this ground of appeal was not opposed by Mr Milmo QC for the

prosecution, and we gave leave because of the connection which must exist

between the proper definition of the offence of manslaughter and the relevance

of the suggested defences of self-defence and necessity to it.

We should state that we refuse leave in relation to all other suggested

grounds of appeal and we do not find it necessary to specify what they were.

Self-defence

There is no criticism of the judge’s decision to apply the principle stated

in Bonnick. The submission is that he was wrong to hold that there was no

evidence to support the defence in the present case and therefore to regard it

as “speculative” here. Nor is there any issue as to what the defence

entails.

The judgment given by Lord Morris of Borth-y-Gest in the Privy Council in

Palmer v R [1971] AC 814 is quoted both in Archbold (1999) para. 19-41 and in

Smith & Hogan (9th ed.) p.263. The passage is too well known to require full

quotation here. The concept is one of necessary self-defence. The sentences

particularly relied upon are these:

“If there has been an attack so that defence is reasonably necessary, it

will be recognised that the person defending himself cannot weigh to a nicety

the exact measure of his defensive action. If a jury thought that in a moment of

unexpected anguish a person attacked had only done what he honestly and

instinctively thought necessary, that would be the most potent evidence that

only reasonable defensive action had been taken”.

It was common ground that the same principle can apply to the defence of

another person and that the appellant was entitled so to act in order to defend

his brother Sid, in the circumstances of this case. The question is whether

there was evidence to support the defence. The appellant did not suggest that

that was the reason for his acting so as to cause the injury and death of Kully,

but the alibi cases show that the jury must be directed to consider the defence

if there is evidence upon which it can be based.

Mr Beckman submits that there was such evidence here, because the appellant

became aware that Kully was attacking his brother through the open passenger

window and reasonably, or at least instinctively, drove off in order to bring

the violence to an end. It was what a reasonably careful driver might have done,

notwith-standing the risk of injury to Kully. The situation in which the

appellant found himself might be compared with the driver of a vehicle which is

approached by an aggressor when stationary at traffic lights, making the driver

fearful for his or her safety from an attack. The driver could reasonably drive

off notwithstanding that the aggressor might be caused some injury. In the

present case, there was the added factor that the appellant was being urged on

all sides, not least by Mr Bacon outside the car and by his brother inside it,

to get away from what had become an ugly, violent situation. The appellant’s

reaction, Mr Beckman submitted, was instinctive, born out of the anguish of the

moment, and therefore it could be regarded as lawful self-defence.

These submissions were bound up with the alternative ground of appeal, that

the judge should have directed the jury to regard this as a case of “gross

negligence” manslaughter. That would require them to consider whether the

appellant’s standard of driving fell so far short of what was required by the

duty to take reasonable care which he owed to Kully that it should be regarded

as being subject to the criminal sanction of the offence of manslaughter (Adomako

at page 187C).

A preliminary question arises as to whether lawful self-defence could ever be

a defence to such a charge, because the defendant can only be guilty of the

gross negligence offence if the jury is satisfied that his conduct fell

sufficiently far short of what a reasonable man would have done, placed as the

defendant was. This question does not arise, however, in the case of

“reckless” manslaughter. If the offence was committed because the

defendant ignored or was indifferent to an obvious risk of injury or death to

the victim, then clearly the defence is available. He can say that he was

justified in taking the risk in the circumstances in which he was.

It is convenient, therefore, to consider the additional ground of appeal

first.

In Adomako the House of Lords affirmed the characteristics of “gross

negligence” manslaughter and further held that there is no distinction in

principle between motor manslaughter and other cases where gross negligence is

the basis of criminal liability. The House of Lords also held that juries might

properly be directed in terms of recklessness although the precise definition

derived from Seymour [1983] 2 AC 493 should no longer be used (188A). Lord

Mackay LC said this:

“I consider it perfectly appropriate that the word “reckless”

be used in cases of involuntary manslaughter, but as Lord Atkin put it “in

the ordinary connotation of that word.” Examples in which this was done, in

my mind with complete accuracy are Reg v Stone [1977] QB 354 and Reg v West

London Coroner ex parte Gray [1988] QB 467 …. I entirely agree with the view

that the circumstances to which a charge of involuntary manslaughter may apply

are so various that it is unwise to attempt to categorise or detail specimen

directions. For my part I would not wish to go beyond the description of the

basis in law which I have already given” (187H-188B).

Nothing here suggests that for the future “recklessness” could no

longer be a basis for proving the offence of manslaughter: rather, the opposite.

Smith & Hogan records that “For many years the courts have used the

terms “recklessness” and “gross negligence” to describe the

fault required for involuntary manslaughter …. without any clear definition of

either term. It was not clear whether these terms were merely two ways of

describing the same thing, or whether they represented two distinct conditions

of fault” (page 375). After referring to Adomako, the learned author

continues:

“Reckless manslaughter. Gross negligence is a sufficient, but not

necessarily the only fault for manslaughter. To some extent manslaughter by

overt recklessness, conscious risk-taking still survives” (p.377).

He goes on to ask whether it is necessary for the offence of reckless

manslaughter that the risk foreseen is of serious, rather than non-serious,

bodily harm.

In our judgment, the judge was correct in his view that this was a case of

“reckless” manslaughter and to direct the jury accordingly. We reject

the alternative submission that he was wrong not to direct the jury as to gross

negligence manslaughter, whether in place of or in substitution for the

direction as to recklessness. Indeed, in a case such as the present, we find it

difficult to understand how the point of criminal liability can be reached,

where gross negligence is alleged, without identifying the point by reference to

the concept of recklessness as it is commonly understood: that is to say,

whether the driver of the motor vehicle was aware of the necessary degree of

risk of serious injury to the victim and nevertheless chose to disregard it, or

was indifferent to it. If the gross negligence direction had been given, the

recklessness direction would still have been necessary. The recklessness

direction in fact given made the gross negligence direction superfluous and

unnecessary.

We return therefore to the suggested defence of lawful self-defence. The

jury’s verdict, in the light of the direction they received, means that they

were satisfied that the appellant was aware, as he drove off in the Range Rover,

that the deceased was either half in and half out of the passenger window or was

at least holding onto the passenger and being carried along with the vehicle.

The speed was such that the deceased could not possibly have been running

alongside. The contention which we derive from Mr Beckman’s submissions is to

the effect that the appellant appreciated that there was a risk of Kully harming

the passenger and that reasonably, or instinctively, he drove off as he did in

order to protect the passenger from harm or further harm. That was justified, it

was submitted, notwithstanding the risk of injuring the attacker in the

circumstances of this case.

We can assume in the appellant’s favour that he is not debarred from raising

this defence, notwithstanding that he made no reference to it in the course of

his evidence (nor in the course of his “no comment” interview). This

is not identical with the alibi cases, for there was nothing in the evidence

which the appellant did give which was inconsistent with him putting forward

this explanation, if it was the truth. But that would suggest that the defence

was only available to him if he took a conscious decision to drive off, in order

to protect his brother, and that, as Mr Beckman submits, might not give due

recognition to the fact that the defence is available to a person who acted

instinctively rather than as the result of a conscious decision. On the other

hand, as Mr Beckman accepts, the instinctive reaction has to be judged against

the possible reaction of a reasonable man, placed as the defendant was.

The evidence makes it plain, in our judgment, that no such defence could be

raised here. The appellant drove off in response to his brother Sid’s urgings

that he should. He either did not hear or ignored Mr Atwal’s cries that he

should slow down and stop until the vehicle had accelerated to 30/40 mph and

covered a distance approaching 200 metres along the main road. Making full

allowance for the circumstances in which the appellant came to be driving the

vehicle away from the ugly situation in the car park of the public house, we do

not consider that the jury could properly have found that this was or might have

been instinctive and no more than the possible reaction of a reasonable man in

the situation in which the appellant found himself that night.

We therefore reject this ground of appeal and uphold the judge’s ruling that

it was inappropriate to raise with the jury the suggested defence of lawful

self-defence. Our conclusion is supported also by the consideration that, as was

stated in Bonnick, the question is pre-eminently one for the trial judge to

answer by the application of common sense. We do not see any reason for

differing from the view which he took.

Necessity

Like the judge, we do not see how this defence could arise if there was no

evidence to support lawful self-defence. We were referred to the judgment of

this Court in Martin (1989) 88 Cr App R 343, and more recently Cairns [1999]

Crim LR 826. A preliminary observation is that these authorities suggest that an

objective standard of reasonableness has to be applied in considering whether

the defendant acted out of necessity so as to give rise to the defence. But the

suggestion that the defence could arise here runs into an earlier, logical

difficulty. The only necessity which arose for the defendant to drive off as he

did was created by the need, as the appellant saw it, to avoid further trouble

at the public house and to safeguard his passengers and himself from possible

violence there. But the possibility became actual violence when Kully acted

aggressively towards the passenger, Sid, as he did. It therefore was

indistinguishable from the circumstances alleged to give rise to the defence of

lawful self-defence, and we cannot see any basis upon which it can be argued

that in such circumstances the defence of necessity has a wider scope. This

submission therefore must be rejected also.

Background

The further ground for which we gave leave is that the judge was in error in

directing the jury to consider the earlier events in the public house and car

park as mere background when in fact such evidence was highly relevant to

possible issues of intent and the state of mind of the appellant. We have

already quoted two relevant passages from the summing-up. They make it clear

that the judge left it to the jury to form their own view. Even if there was an

implied direction they should regard the earlier events as

“background” we do not consider that that was a mis-direction in the

circumstances of this case. The fact that Kully stood aside when the appellant

revved up the engine of the Range Rover and then threatened violence only in

response to whatever remark it was that Sid made to him, demonstrates that

events moved into a new situation at that time. It was not inappropriate to

describe the earlier events as the background to it. Mr Beckman submits that

those earlier events remained relevant to the state of mind of the appellant

when and after he drove off. But there never was any suggestion that the

appellant had behaved other


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