Neutral Citation Number:
[2015] EWCA Crim 1250
Case No:
201000473 B3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Paget Q.C.
T20087292
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
14/07/2015
Before :
THE PRESIDENT OF THE QUEEN'S BENCH DIVISON (SIR BRIAN LEVESON)
MR JUSTICE SINGH
and
MRS JUSTICE ELISABETH LAING D.B.E
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Between :
BABAR ALI SHAH
Appellant
- and -
THE QUEEN
Respondent
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James Wood Q.C.
and
David Rhodes
for the
Appellant
Oliver Glasgow
for the
Respondent
Hearing dates : 24-25 June 2015
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Judgment
Sir Brian Leveson P :
1.
On 23 December 2009, following a retrial in the Central Criminal Court before His Honour Judge Paget QC and a jury, Babar Ali Shah was convicted (by a majority of 10:2) of attempted murder, wounding with intent to do grievous bodily harm and possessing a firearm with intent to endanger life. The jury was discharged from returning a verdict in respect of an offence of causing grievous bodily harm with intent, which was an alternative to the count of attempted murder. On 25 February 2010, he was sentenced for attempted murder and possession offences to concurrent terms of imprisonment for public protection with a minimum term specified of 20 years, less 572 days spent on remand. No separate penalty was imposed in respect of the wounding offence.
2.
With the leave of the single judge, granted as long ago as 26 May 2010, Mr Shah appeals against sentence. He also renews his application for leave to appeal against conviction on the single ground dismissed by the single judge and applies for leave on three further grounds which have since been drafted and re-drafted by Mr James Wood Q.C. and Mr David Rhodes (neither of whom appeared at the trial): for ease of reference, however, we shall throughout refer to Mr Shah as an appellant.
The Facts
3.
At about 11.25 pm on 25 July 2008, the first complainant, Mohammed Imran Sheikh, was driving his car in Greenford, West London with the second complainant, Shazad Ahmed, in the front passenger seat. Two other men were sitting in the back of the car. One of the men asked Mr Sheikh to pull over, which he did. The two men then withdrew sawn-off shotguns from a bag and the one who asked Mr Sheikh to pull over shot at him. Both complainants reached for the guns to try and divert the shots. Three shots were fired and all but one missed Mr Sheikh although the shot that struck him took the top off his thumb and lodged in his chest. 50 shotgun pellets were subsequently found in his chest, 35 of which could not be removed by surgery. Mr Ahmed was struck in the face with the butt of a gun in the ensuing struggle, suffering two cracked teeth.
4.
The prosecution case was that the man who shot at Mr Sheikh was the appellant. It was said that at approximately 10.30 pm on the night of the shooting, the appellant, known to his friends as Bobby Shah, telephoned Mr Sheikh, with whom he had been acquainted for eighteen months, and asked him for a lift. Mr Sheikh agreed and met the appellant in the Greenford area. Mr Sheikh was driving a burgundy coloured Cherokee jeep, registered number YM51OUU which, it was common ground, he had bought from the appellant some time before.
5.
Once together in the vehicle, they collected Mr Ahmed from his house. The appellant then asked if they could pick up a fourth man, which they did. The appellant introduced him as Hussan or Hussain. When Hussan got into the jeep, he was carrying a bag. The four men set off towards Southall in order to get something to eat when the appellant asked Mr Sheikh to pull over and the shooting occurred as we have described.
6.
After the first shot, Mr Sheikh got out of the car and ran away. He said he heard a further shot and also heard the appellant shouting at Hussan to shoot Mr Ahmed in the head although both attackers had difficulty getting out of the jeep because the doors were fitted with effective child locks. Thus, Mr Ahmed was also able to get out of the car and escape; he ran to Mr Sheikh’s home which he knew was nearby. Mr Sheikh’s wife, Natasha Hare, was at home and called the police. The tape of the 999 telephone call also happened to record a conversation between Mr Ahmed and Ms Hare in Punjabi (clearly not intended to be communicated to the emergency services) which was translated, by more than one translator, for the jury. Mr Ahmed could be heard saying “Bobby and them, Bobby and that lot did it…”. The following day, he told the police that the appellant and his friend were involved.
7.
Meanwhile, Mr Sheikh ran to a nearby address in Tangmere Gardens. 999 calls were made by two of the residents. Ms Hare was also contacted by them and she arrived at the address around 10 minutes later. Mr Sheikh had not named his attackers to the people at Tangmere Gardens but told his wife it was the appellant. He told the police that he knew the two suspects, but would not give any further details. He told the paramedic that he had been shot, but not by whom. Ms Hare told the police that her husband had told her that the appellant was the gunman. The next day, Mr Ahmed told the police that the appellant was involved and took them to the appellant’s home address. The appellant was arrested on 31 July 2008. The motive for the shooting remains unclear.
8.
The defence case was that the appellant was not the gunman. Although in a prepared statement made on 31 July 2008 at the police station the appellant advanced an alibi that was he was at home at the time of the shooting, he later realised that he was wrong about this. In this statement, he also denied having been in the jeep to which we have referred (which was identified by its registered number) on the night of the shooting.
9.
In a defence case statement signed by the appellant and served on 16 February 2009, he said that at about 8.00 pm on 25 July 2008, he went to the Greenford area with a view to borrowing a vehicle from a friend named Majid. By chance, he saw Mr Sheikh drive past and waved at him. Mr Sheikh turned around to pick him up, explaining that he had sent Majid away to the house of Mr Ahmed. Mr Sheikh gave him a lift to that house, where the appellant rejoined Majid who gave him a lift to a nearby restaurant. At the time of the shooting, the appellant said that he was in the restaurant having dinner with three acquaintances; Haider Saeed, Aslab Shah and Afzal Hussain. After dinner, the appellant and others went back to Afzal Hussain’s house where the appellant stayed until approximately 1.00 am.
10.
In addition to the identification evidence of Mr Sheikh, Mr Ahmed and that which Ms Hare could say, the prosecution relied on circumstantial evidence that was said to connect the appellant to a mobile telephone which was used to call Mr Sheikh on the night of the shooting. After the shooting, Mr Sheikh’s mobile telephone was recovered from the vehicle. Billing of his phone was sought because he told the police that he had been rung by the appellant from a ‘private number’ shortly before he was shot and that he had been lured to the place where he had been shot by those calls. The billing information showed that he had been rung at 10.28 pm, 10.38 pm and 10.43 pm from a phone using a SIM card ending ‘529’. Records of that SIM card showed that it was only ever used on 25 July 2008 but that it had been operated in a handset with an IMEI number ending ‘860’.
11.
Research into that particular handset revealed that it had also been used to operate a SIM card ending ‘273’. This number was used to call Mr Sheikh and four other individuals on 21 July 2008. Mr Sheikh told the police that he associated the 273 number with the appellant, that he had spoken to the appellant using this number and that the number was saved in his handset address book as “BB”. Since the telephone numbers of those individuals contacted by the 273 SIM card on 21 July 2008 were also saved in the handset memory of the mobile telephone seized from the appellant upon his arrest, the prosecution invited the jury to infer that the 273 SIM card, and therefore the 529 SIM card, were being used by him. Statements from two of those who were contacted through the 273 SIM card (whose names were Kaiser and Shoeib) were read to the jury; both admitted knowing the appellant, but neither had a recollection of the telephone call on 21 July, or who it was from, and both had other telephone numbers saved for the appellant in their mobile telephone address books. As to this aspect of the evidence, the appellant denied ever having in his possession SIM cards bearing the numbers 273 or 529.
The Procedural History
12.
The appellant first stood trial on 1 June 2009 before His Honour Judge Rennie. He was represented by City Law solicitors who instructed Mukhtar Hussain Q.C. and Mr Zac Miah as counsel. During the trial (prior, we were told, to the commencement of the evidence), bad character applications concerning Mr Sheikh and his wife were made pursuant to the provisions of the
Criminal Justice Act 2003
: these were refused by the judge. The appellant gave evidence and one alibi witness (Syed Afzal Hussain) was called on his behalf. It appears that after the closing addresses, an application was made to discharge the jury on the grounds that the prosecution had failed to comply with disclosure requirements. One of the complaints before us was the absence of a number of attendance notes concerning the preparation for this trial and the ruling on bad character.
13.
Following the discharge of the jury, the retrial was conducted by Judge Paget between 14 and 23 December 2009. No attendance notes or notes of evidence are available from that trial although we have had the benefit of substantial transcripts of evidence. The same witnesses were called to give evidence both by the Crown and the defence.
14.
Following conviction, a notice of appeal settled by trial counsel was served both in relation to conviction (concerning the direction regarding disproof of alibi) and sentence. On 26 May 2010, the single judge (King J) refused leave in relation to conviction but granted leave in relation to sentence. On 2 September 2010 (some 2½ months out of time), the application for leave to appeal against conviction was renewed but, on 19 October 2010, Mr Hussein Q.C., advised the Registrar that he would be applying to withdraw.
15.
On 17 December 2010, the Registrar agreed an application to transfer the representation order to new leading counsel limited to arguing the appeal against sentence. In the absence of instructions from the appellant, on 8 March 2011, the Registrar nominated Mr. James Wood Q.C to appear on the appeal against sentence which, together with the renewed application for leave to appeal against conviction, was listed for hearing on 15 July 2011. At this point, Mr Wood was acting
pro bono
in respect of the application for leave to appeal against conviction.
16.
Prior to that hearing, at Mr Wood’s request, this date was vacated following counsel’s receipt of correspondence from the appellant raising potential further grounds of appeal against conviction concerning the conduct of his trial. On 28 July 2011, the Registrar granted an extension to the representation order for leading counsel to advise and settle further grounds of appeal. Provisional grounds were lodged on 29 February 2012; it would appear that there was a difficulty in obtaining trial documents from the appellant’s trial solicitors. At the same time counsel lodged a schedule of information to be obtained before the grounds could be perfected.
17.
At a directions hearing on 26 June 2012, the full court (Sir John Thomas P, Collins and Singh JJ) directed that further transcripts be obtained and, following waiver of privilege, invited trial counsel, Mr Hussain Q.C. and Mr Miah, and City Law solicitors, Azhar Khan and Iain Jenkins, to comment on a number of questions as set by Mr Wood. Their responses prompted further questions and it was not until 23 January 2013 that final responses were received.
18.
Consolidated grounds of appeal were lodged on 2 September 2013. Further directions were given on 7 November 2013 by the full Court (Sir Brian Leveson P, Royce J and Sir David Maddison) for trial counsel and solicitor representatives to give oral evidence at the hearing of the application for leave to appeal. Thereafter, Mr Wood came into possession of information which appeared to go to the credibility of Azhar Khan, the principal and director of City Law at the relevant time, who, it was said, was the subject of a police investigation. The prosecution disclosed information about various investigations into Mr Khan, including by the Solicitors Regulation Authority (“SRA”), relating to allegations of perverting the course of justice, cheating the public revenue and other offences of financial dishonesty. The prosecution conceded that Mr Khan could no longer be relied on as a witness of truth. Mr Wood subsequently sought further disclosure of material from the prosecution and SRA.
19.
There was then a further directions hearing on 11 March 2015 (Sir Brian Leveson P, Singh and Jay JJ), the result of which was that, on 23 March, a request was made of the SRA to disclose to the prosecution any material in its possession which evidences conduct relating to the propensity of Azhar Khan, Iain Jenkins and Samira Bashir to engage in conduct on behalf of criminals which is contrary to the interests of their clients. Samira Bashir was at the time of the trial a paralegal at City Law with direct involvement in the defence of the appellant; she has since qualified as a solicitor. Thereafter, the prosecution was asked to disclose any further material then in its possession which is relevant to (i) the credibility of witnesses who are to be sought to be called before the Court of Appeal, and whose credibility is still relied upon (Iain Jenkins, Samira Bashir and trial counsel), and (ii) the propensity of Azhar Khan, Iain Jenkins, Samira Bashir or any other employees of City Law to engage in conduct on behalf of criminals which is contrary to the interests of their clients. This material was disclosed but, as the court foreshadowed at the directions hearing, it has not in fact provided a basis for any of the allegations that are now pursued.
20.
In the event, Mr Jenkins, Ms Bashir, Mr Hussain Q.C. and his junior Mr Miah gave evidence admitted
de bene esse
for the purposes of the appeal. Although statements and the relevant documentation had been served so that the appellant could also do so, Mr Wood made no such application. A Form W was also submitted in relation to an alibi witness, Haider Saeed. In the event, Mr Wood made it clear that he was available should it be thought appropriate to hear him: we declined to do so.
The Appellant’s Legal Representation
21.
Mr Wood has proceeded on most (but not all) of the additional grounds that he has sought leave to pursue. First, he has argued that the conviction of the appellant is unsafe because he was represented by a solicitors firm which was conflicted in relation to its representation of him, and, in relation to Azhar Khan, the principal (but not so far as concerns Mr Jenkins or Ms Bashir), possibly dishonest.
22.
This ground relates to Azhar Khan, the principal of the firm of solicitors whom the appellant instructed to represent him. It is advanced under several heads, the first of which involved a general attack on his honesty based upon material which had been disclosed by the prosecution together with the fact that the Crown did not rely on him as a witness of truth. The substantial quantity of material disclosed by the SRA and as a consequence of the police investigation was said only to provide the background against which the court should judge the remaining allegations as to conflict that he faced.
23.
Without making any judgment about Mr Khan, unless his conduct in connection with the defence of the appellant itself could be criticised, want of honesty on its own would not be sufficient to undermine the conviction and Mr Wood does not suggest the contrary. Rather, he points to the conflict of interest consequent upon Mr Khan being a potential witness, the result of which was that it is submitted that he should not have acted for the appellant without obtaining his informed consent. He also argues that the absence of the entirety of the defence file (and, in particular, attendance notes of meetings including the single meeting at which Mr Khan attended upon his client) points to deliberate filleting of the file and, thus, impropriety.
24.
The conflict is said to arise because the 273 SIM card used in the 860 handset (linked to the appellant as described above) was used to call a mobile number which acted as the out of hours number for City Law and Mr Khan’s personal number (344). The call lasted for 31 seconds and was made at 6.01 pm on 25 July. The significance of the call is that the 529 SIM (used to call Mr Sheikh at 10.28 pm, 10.38 pm and 10.43 pm) had utilised that 860 handset. The prosecution pointed to the fact that Mr Khan’s name and number were in the appellant’s mobile phone book and thus provided a link to that phone handset.
25.
There is no doubt that witness statements were obtained and read from two others called by that SIM card, Mr Kaiser and Mr Shoeib, neither of whom could recollect who had made the call; further, the appellant was cross examined about this particular call. Although Mr Wood argued that this was a main plank of the prosecution case, we do not consider it such: the significant point was rather different. That was that the numbers called by the 273 SIM card for the short period it was used were all numbers which were in the phone book of the appellant’s phone: that much is clear from the full text of paragraph 48 of the prosecution opening note.
26.
It appears that police officers spoke to Mr Khan about this call as long ago as 7 October 2008 when he also was unable to recollect the call or who had spoken to him. Given the similar evidence of Mr Kaiser and Mr Shoeib, that is not in the slightest surprising. No statement was taken from Mr Khan. As for the knowledge of those responsible for the appellant’s defence, the telephone evidence which identified the context of the call among the others was served on 22 January 2009. Mr Jenkins (who was emphatic that he – not Mr Khan – was responsible for and in charge of the appellant’s defence) told us that, on reviewing all the material that he was sent, he was aware of the call being part of the case; he could not remember specifically discussing it with Mr Khan but he could not imagine that they did not. Mr Hussain made it clear that if material evidence could have come from Mr Khan he would have expected to be told.
27.
In reality, the only circumstance in which there was any conflict between the appellant and Mr Khan was if Mr Khan did remember the call and specifically remembered the appellant making it. Then, we have no doubt, he would have been asked to make a statement which would have been included in the prosecution papers and a clear conflict would have arisen. If he had remembered that the appellant did not make the call, the police would have been keen to record that fact and there would have been no question of conflict: he would have been an important defence witness. Even ignoring the information from the police, the inference is that he was neither. The fact that his firm was acting for the appellant was, in truth, neither here nor there: whether or not City Law acted for the appellant, Mr Khan’s number, and other numbers, were both called by the 273 SIM card during the short period it was active, and were also in the appellant’s phone book: that fact was unanswerable.
28.
Mr Wood cited
R v. Morris (David George)
[2005] EWCA Crim 1246
as underlining the position of the solicitor in a case such as this. The facts concerned a solicitor who represented a defendant convicted of murder, despite having previously represented the suspect originally arrested on suspicion of the same murder. That suspect was subsequently told that no proceedings would be brought against him and, when the defendant was later arrested, he asked to be represented by the same solicitor. The defendant was fully informed of the solicitor’s previous clients but maintained throughout the trial that the solicitor should act for him. Part of his defence to the charge was that the original suspect and his wife were involved in the murders.
29.
After he was convicted, he appealed against the conviction on the grounds that he was deprived of a fair hearing because his solicitor had a conflict of interest which had adversely influenced the presentation of his case at trial. The Court of Appeal concluded that the defendant had been deprived of the opportunity to present a defence which was likely to have been given serious consideration by the jury and that loss of opportunity meant that he did not have a fair trial. It was put in this way (at [65]):
“We do not doubt that the defence of the appellant was vigorously pursued in terms of taking instructions from the appellant, keeping him informed, strenuously pursuing disclosure of documents, carefully analysing the evidence and conscientiously preparing and presenting a lengthy address to the jury. The fatal flaw was in Mr Hutchison accepting instructions from the appellant in the circumstances he did. The former relationship with Stephen and Ian Stuart Lewis and the consequences of his continuing duties to them pervaded the entire conduct of the defence. We cannot of course be certain that the defence would otherwise have been conducted in a different way with a more vigorous attack upon the Lewises and their alleged involvement, but in the circumstances the strong probability is that it would have been.”
30.
In our judgment, the present case is entirely different. First, the alleged conflict falls very far short of the situation in
Morris.
An assertion that the director of a firm representing the appellant, who himself did not have direct responsibility for his case but received a telephone call from the alleged gunman on the night of the shooting does not even arguably lead to the conclusion that there was a conflict of interests.
31.
Secondly, in
Morris
it was possible to identify how the case would have been different were it not for the conflict:
“
there was substantial material which could have been but was not put to the Lewises and put in evidence, and serious and specific allegations which could have been put to them”: [66]. The conclusion in
Morris
that the convictions were unsafe was not because of the conflict alone, but because the court could identify where and how the defendant had been deprived of the opportunity to present a defence, with reference to specific evidence. The same cannot be said in this case. Mr Wood points to the examples provided by his second and third proposed grounds of appeal but such failings as might be established would provide free-standing grounds of appeal and, in any event are not linked to the alleged conflict. This is not least because they turn on decisions taken by trial counsel and, whether or not those grounds are well founded, it was not suggested before us that there was any link between their conduct of the trial and the alleged conflict of interest on the part of Mr Khan. For all these reasons, we reject the submission that there was any conflict of interest which disabled the solicitor from acting without his client’s express consent.
32.
Mr Wood stopped short of formulating any wider allegations of impropriety against Mr Khan, though he suggested that it was sinister that much of the case file was apparently missing. He suggested to Ms Bashir that it had been “filleted”. We do not find the fact that parts of the file are missing to be sinister, and we reject the suggestion that it would be proper to infer that documents have been systematically removed from it. It is now many years since the trial. In the meantime, the files have gone for assessment of costs, been put into storage, and been retrieved and sent to new solicitors. No intelligible reason has been suggested to explain what parts of the file are missing, why they are missing or what they might have contained. The fact that the notes of the second trial are missing is irrelevant without a basis advanced in evidence for submitting that something of importance has been withheld. Those remaining grounds which advance criticism of the conduct of the second trial are capable of determination on their own merits.
33.
We deal shortly with the remaining allegations concerning Mr Khan, the firm City Law, Mr Jenkins and Ms Bashir. In relation to Mr Khan, there is no evidence that on the one visit recorded in the Prison visits log to have been made by him, anything improper occurred. Suggestions made in writing that pressure had been put on the appellant not to mention the name ‘Raju’ or ‘Uzi Butt’ in his instructions were not pursued with oral evidence: in any event, they are contradicted by the text of the two versions of his defence case statement. Similarly, the appellant was not called to give evidence in accordance with his recent statement that there was some relationship between Mohammed Sheikh and Mr Khan and this was not pursued. Finally, although Mr Wood noted that Mr Khan’s telephone number was saved in Mr Sheikh’s mobile phone address book, that fact does not start to provide a basis to support any allegation of impropriety.
34.
In any event, the evidence concerning Mr Khan is of limited, if any, relevance given that Mr Jenkins, Ms Bashir and counsel were all emphatic that he had no real involvement in the appellant’s case. The evidence from the SRA concerning him relates to matters completely unconnected to this trial. Nor does the material lend any support to a challenge to the credibility or integrity of the appellant’s representation by Iain Jenkins or Samira Bashir and there is no evidence from the appellant that any of them acted otherwise than in his best interests.
35.
The submission that the appellant’s conviction is unsafe by reason of his being represented by a dishonest solicitors’ firm, or a firm that engages in conduct which is contrary to the interests of their clients, is rejected as without foundation as is the application for leave to appeal against conviction on this ground. Put simply, on full investigation, there is no merit in it.
Bad Character
36.
Mr Wood’s second proposed ground of appeal is that although the application to cross examine Mr Sheikh and his wife Ms Hare on the basis of their bad character had been rejected at the first trial, Mr Hussain Q.C. and Mr Miah failed in the re-trial to repeat the application in order to undermine the credibility of these two critical prosecution witnesses. Mr Wood submitted that the material went to four issues in the trial. The first was Mr Sheikh’s credibility; the second, whether Mr Sheikh was likely to have been shot by others because of his criminal activity; the third, whether he was known to the appellant (and others) as “Uzi Butt”; and, finally, the fourth, whether he was lying when he denied that last fact.
37.
To support the contention that there was material which it was legitimate to deploy as bad character evidence, we were referred to unused material that Mr Sheikh has in the past been charged with robbery and assault. In the event, although there were statements supporting the allegation, the authors were clearly not prepared to support them by giving evidence in court and there was no suggestion (let alone evidence) that they had been intimidated into that stance: the result was that the prosecution offered no evidence at trial and verdicts of not guilty were entered. Secondly, there was an allegation that he had been involved in a stabbing incident and further information suggesting that his wife, Ms Hare, was aware of her husband’s criminality and had herself been suspected of being involved in a robbery. Lastly there was material which is said to support the appellant’s assertion that that Mr Sheikh was also known as Uzi Butt.
38.
Mr Miah prepared a bad character application both in respect of Mohammed Sheikh and his wife for the first trial, and Mr Hussain pursued it. Although we have not seen a transcript or note of the ruling, it is undeniable that it was refused and Mr Oliver Glasgow (who appeared for the Crown in that trial) submitted that it had always been doomed to fail. Although Mr Hussain and Mr Miah asserted in a joint note (undated) that they could not recall whether a bad character application was pursued in the second trial, there is no evidence (whether from the court log or otherwise) to suggest that it was. We proceed on the premise that no such application was made, which leads Mr Wood to argue that no trial team could properly withdraw such an application without either receiving written instructions to do so, or advising fully and in writing as to the reasons for so doing. On behalf of the prosecution, Mr Glasgow submits that whatever the reasons for not pursuing the application, again, it was not an application that could succeed.
39.
The issue of bad character evidence raises two separate questions. The first is whether the appellant did, in fact, instruct his lawyers to repeat the bad character application before Judge Paget in the second trial, and the second is, if he did, and those instructions were not carried out, whether that affects the safety of his conviction. Mr Wood accepts that if the application would not have succeeded, the trial process was unaffected: he submits, however, that it was bound to succeed not least because, at the second trial, Mohammed Sheikh (who was entitled to claim that he was a man of good character) asserted that he had not behaved illegally.
40.
As to the circumstances in which the application was not pursued, the court heard evidence both from counsel and Ms Bashir (then the paralegal representative of the appellant’s solicitors) although not from the appellant. In short, Mr Miah had left the issue to his leader and Mr Hussain was not able to say why no application was made in the second trial: he did not have his trial notes from nearly five years earlier. Mr Hussain’s recollection was that he did not see the appellant during the course of the second trial (although there is at least one reference in the log to his being given time to obtain instructions). On this issue, he could only assume that no specific instructions had been given for the application to be made because there was no logic, otherwise, to explain why it had not been. Cross examined by Mr Wood, he agreed that it would have been a major oversight not to make the application in the absence of instructions; it would have been culpable. If he had forgotten to make the application and had been reminded by his solicitor, he would have made it.
41.
Very different evidence was given by Ms Bashir about this issue. Having worked on the case, at the instruction of, and supervised by, Mr Jenkins, she attended most, if not all, of the re-trial and frequently attended the appellant and the witnesses. Although Mr Wood did not ask her about this issue, when the matter was raised, she was sure that, during the re-trial, the appellant had complained to her that Mr Hussain had not cross examined Mr Sheikh about the unused material. She said that he had been quite adamant that he wanted it in.
42.
Her evidence was that she told Mr Hussain about the appellant’s concern but she did not think there had been any discussion about it. “They” (presumably counsel) “did not explain it to me ... they would do it their own way”. She told the appellant who was not content, but “wasn’t jumping in his seat”. Her evidence was that the appellant’s team were ready for the application, had dug up a lot of material, and were ready to use it to discredit Mr Sheikh. She was not clear why the application was not made; she is not sure what words were used; “it wasn’t of interest, or applicable”. She added that the prosecution had run the second trial in a different way. They had not focussed on the history between the appellant and Mr Sheikh; there was less about the history, credibility, and how the jeep had been bought. Rather, the emphasis had focused directly on the shooting. All the previous material, to the discredit the appellant, had not been deployed, so discrediting Mr Sheikh was less relevant.
43.
As Mr Glasgow argued (and Mr Wood accepted) there is no professional obligation on defence counsel to retain notes of a case but the difficulty of not so doing is that it puts any court reviewing the matter in a difficult position. Mr Hussain effectively has no recollection one way or the other but makes the very forceful point that there would have been absolutely no reason not to make the application (which had been prepared and served timeously) if it had been thought sensible to do so. Ms Bashir, on the other hand, is clear that it was mentioned and cannot explain why it was not pursued. That there must have been a reason is clear (for we do not accept that Mr Hussain would deliberately have failed to pursue the application without good reason).
44.
It is not necessary to examine the extent to which it is necessary for counsel to involve the defendant in the trial strategy or tactics to be deployed by the defence and in which failure to do so may provide grounds for an appeal. In the specific circumstances of this case and in the light of the evidence we have heard, we accept that this appellant should have been involved in the decision and that, had he been, he would have wanted the matter pursued. It is right, therefore, to proceed on the premise that there was a breakdown in communication of some sort and that it is therefore arguable that the application should have been, but was not, made.
45.
The background is that the application at the first trial was made and refused at the start of the trial before evidence had been given; Mr Wood makes the point that it was not renewed as the evidence emerged. During the course of the second trial, however, he argues that, whatever had been said previously, Mr Sheikh then denied any involvement in criminal activities. This was reflected in the Judge’s summing up of his evidence to the jury. It is submitted that, as a result, the jury were left with a false impression as to the character of the main witness for the prosecution which cross examination as to his character, if permitted, would have undermined.
46.
The critical question, therefore, is whether the application would have been successful in the second trial had it been made and, as a result, whether the convictions are thereby rendered unsafe. Mr Glasgow responds by arguing that any application would have been equally doomed to fail in the second trial (as it had before Judge Rennie). Thus, the fact that none was made can have had no adverse impact on the safety of the convictions.
47.
With that introduction, we turn to the basis for the bad character application in relation to Mohammed Sheikh. The main plank of Mr Wood’s argument depends on an allegation that, on 25 July 2007, Mr Sheikh (using the name Uzi Butt) had taken part in a robbery and assault during the course of which a gun was put in the mouth of the victim, Adnan Mahboob. As part of that incident it was alleged that another man, Abrar Khalil, had been threatened and assaulted. The unused material contained statements from Mr Mahboob and Mr Khalil along with information that Mr Sheikh had been identified as the gunman by them. There was also material that a handgun had been found from under the bed by the police when Mr Sheikh’s house had been searched.
48.
Although this material was available, the extent to which it was appropriate to permit its deployment was another matter. First, another man, Darryl Paul, pleaded guilty to involvement in these offences and although Mr Sheikh was prosecuted, Mr Mahboob and Mr Khalil refused to participate. They failed to attend to give evidence on the two occasions that the case was listed for trial; further, as we have recounted, there was neither complaint, nor any evidence, of witness interference. In the circumstances, we repeat that the Crown offered no evidence and Mr Sheikh was acquitted. Although Mr Sheikh admitted to the police that he had acquired what was an imitation firearm, his explanation in interview was that someone had previously tried to enter his house and so he bought it to protect himself and his family: simple possession was not an offence and he remained a man of good character.
49.
The second limb of the material which Mr Wood argued should have been deployed in relation to Mr Sheikh’s bad character also comes from unused material, this time relating to Mateen Butt. There was a CRIS report that Mr Butt was attacked in his vehicle by a gang of up to 15 people on 4 June 2007 in the course of which he was stabbed. Police records also revealed an information sheet which the relevant officer found “a little difficult to interpret” that suggested that after the incident Mr Sheikh had rung Mateen Butt’s family “purporting to be a friend warning him not to get involved and to warn the victim off pursuing the matter”. Although Mr Butt positively identified other participants including Darryl Paul, there was no evidence of Mr Sheikh as having been involved and no specific evidence establishing the intelligence. As Mr Glasgow submits, the suggestion that Mr Sheikh took part in the stabbing was merely guesswork on the part of the complainant.
50.
In order for this material to be admissible, s. 100(1)(b) and (3) of the
Criminal Justice Act 2003
required that it have substantial probative value for which purpose the court must have regard to specified and other relevant factors. In that regard, the nature of the evidence available is obviously highly material. Thus in
R v Bovell & Dowds
[2005] 2 Cr App R 401
,
[2005] EWCA Crim 1091
, the court had to consider the fact that a complainant in a s. 18 allegation of wounding with intent had been the subject of an investigation for an identical offence although the complaint had subsequently been withdrawn. Rose LJ (at [21]) entertained “considerable doubt as to whether the mere making of an allegation is capable of being evidence within Section 100(1)” which doubt increased given that the allegation was withdrawn. He went on (at [22]) :
“It is apparent from the circumstances …. That if there was to be any question of the s. 18 allegation being admitted before the jury, it would necessarily have given rise to investigation of other subsequent matters, including the aspersions on the credibility of the victim and the fact that he had withdrawn the allegation. An excursion into those satellite matters is, as it seems to us, precisely the sort of excursion which, as we suggested in para. 12 of the judgment in
Hanson
, a trial judge should be discouraged from embarking upon.”
51.
This observation does not stand alone. In
R v Miller
[2010] 2 Cr App R 19
,
[2010] EWCA Crim 1153
, Pitchford LJ made it clear that one of the intended effects of s. 100 is “to eliminate kite-flying and innuendo against the character of a witness in favour of a concentration of the real issues in the case” but that in the case of a prosecutor cross examining a witness, unless in a position to prove guilt in the event of denial, the exercise should not have been embarked upon (see [20]). Similarly, in
R v Braithwaite
[2010] 2 Cr App R 18
,
[2010] EWCA Crim 1082
, Hughes LJ put the matter in this way:
“19. … The evidence of a live witness to the effect that a complainant in an assault case has on several previous occasions mounted an unprovoked attack on him, in circumstances very similar to those before the jury, would be a mere allegation if no conviction had ensued, perhaps because there was yet to be a trial. But we leave open the possibility that it might in some circumstances (assuming truth) be assessed as having substantial probative value. That, however, is not this case.
21. A defendant who asks to adduce a CRIS report to the police containing a complaint made in the past to the police by someone else who was not prepared to support it, is advancing a very different level of probative value. First, it is, at best, hearsay. Its admission would fall to be judged by reference to the conditions for the admission of hearsay and we venture to suggest that given the difficulties of the jury in assessing such evidence it would be rare for it to be judged to be of substantial probative value. Secondly, if the complainant has failed to support the allegation that robs it of a great deal of probative value. If, in addition, there has been a decision by the police or CPS not to pursue the allegation or even, as in one instance in the present case, the formal acceptance of a verdict of 'Not Guilty', the probative value is even further reduced. In the present case, in the example of U given above, the CRIS reports did not even contain any accusation by anyone identifying him as responsible for the bad character conduct alleged. The 'evidence' in this case was in truth no evidence at all that the witnesses had committed the offences in question. It might be different if hard evidence of the allegation were to become available and if that is what the applicant were to seek to adduce.”
52.
In this case, the above analysis demonstrates that there was no question of the appellant being able to prove any of the allegations. In the first, although statements had been made, the complainants had refused to attend a trial and Mr Sheikh stands acquitted. Furthermore, there is no suggestion that the appellant would have been able to deploy the witnesses or otherwise make good the allegations. Possession of an imitation firearm limited to the circumstances admitted by Mr Sheikh did not advance the defence case at all. In the second, there was no more than the CRIS report. Similarly, so far as Ms Hare was concerned, the information that suggested that she “participated in crime” was solely contained within police intelligence. It would have been satellite litigation precisely of the type deprecated by the authorities. In the circumstances, we agree with Mr Glasgow’s submission that an application before Judge Paget in relation to any or all of these incidents would, as had been the case before, have been doomed to fail.
53.
Under this head, we turn finally to the argument about the name ‘Uzi Butt’. The main significance of the allegation that Mohammed Sheikh was also known as Uzi Butt was that it was important for the appellant to explain why, on 31 July 2008, in a prepared written statement, which his solicitor handed to the police in his interview on that day, he not only denied the offences, but, more particularly, in relation to the jeep YM51OUU denied ever owning it, selling it or the fact that six days earlier, on 25 July 2008, he had been in it. His explanation was that he did not know Mohammed Sheikh by that name but as Uzi Butt, and that the police got Mr Ahmed’s name wrong.
54.
At trial and thereafter, the appellant accepted and now accepts that he was in the jeep with Mr Sheikh that evening, and that he had sold it to him. In these circumstances, he cannot say that his denial was based on not knowing that Uzi Butt and Mr Sheikh were the same person, as he had known all along that, on 25 July 2008, he had been in the jeep that he had previously owned. In any event, the appellant could (and did) speak of Mr Sheikh as Uzi Butt and that assertion was put to him. The material which Mr Wood says should also have been available was that Adnan Mahboob had called him Uzi Butt: for the reasons set out above, there was no prospect whatsoever of that evidence being capable of being deployed. Further, while Mr Sheikh admitted using the name ‘Imran Butt’ in an interview, this would not have established that which Mr Wood sought to show.
55.
It follows that the failure to take the appellant’s express instructions about the bad character application does not make the appellant’s conviction unsafe because such an application would have had no prospect of success. Further, whether or not a judge would have permitted reference to Mr Sheikh’s admission that he was known as Imran Butt, such evidence did not carry the defence forward, particularly given the limited context in which the name was said to be significant. The appellant admitted that he had been in the jeep that he had owned with Mr Sheikh and Mr Ahmed earlier that same evening. Shortly after the shooting, there was no doubt that both men had, independently, identified the gunman as “Bobby” or the appellant and Mr Sheikh had been lured to the scene by a person using a handset in which two SIM cards had recently been used. One of those cards had only been used over a very short period, and all the numbers called by that SIM card in that period were in the phone book of the appellant’s phone. Use of the name Imran Butt does not touch any of this evidence or, indeed, the appellant’s denials.
Alibi
56.
The third new proposed ground of appeal concerns the failure of counsel to call Haider Saeed, a second alibi witness whose name appeared in the defence case statement; he was available at court and willing to give evidence. Mr Wood argues that he should have been called or, at the very least written instructions should have been taken from the applicant confirming that he agreed to the decision not to call an alibi witness, as had occurred during the first trial. It is said that this was contrary to the instructions of the appellant who now insists that he did not consent to his case being closed without Mr Saeed being called: on the basis that Mr Wood did not seek to call the appellant, these assertions are unsupported by evidence.
57.
The history is rather more nuanced than this submission suggests. At the first trial, of the two potential alibi witnesses, the appellant agreed that only Sayed Afzal Hussein should be called. The reason for this is not explained, but attendance notes reveal the solicitors’ concern that Mr Saeed could not provide a strong alibi given his difficulty in recalling the date and time that he had seen the appellant in the restaurant. What is clear, however, is that Mr Hussain and Mr Miah had specific instructions to call no witness other than Mr Hussein and the appellant signed a document to that effect. Furthermore, it was said that, as far as they were concerned, he maintained this position up to and including the second trial.
58.
In reality, privilege having been waived and the file being available for the court to examine, there were very good reasons for not calling Mr Saeed. As Ms Bashir told us in her evidence, the defence team had one alibi witness who was “nice and consistent”. The whole team, by contrast, found Mr Saeed“inconsistent”, and so they were “unhappy to use him”. He would, she said, “contradict the alibi we did use”. It is undeniable that some of the versions of Mr Saeed’s statement in the file bear out this recollection, as do the attendance notes where his evidence is discussed. For example, his first statement describes the appellant arriving at Mr Saeed’s house on the evening in question in a blue Toyota, and taking Mr Saeed to the restaurant. A later version says the appellant arrived without a car, and Mr Saeed drove him to the restaurant. A further version has them arriving separately. The timings are not consistent.
59.
An even more recent statement prepared by Mr Saeed for these proceedings only serves to underline concerns and provides far more extensive evidence than had been foreshadowed in any previous statement. Suffice to say that it is inconceivable that this recent material would not have been at the forefront of his mind when providing any statement in connection with this prosecution. Mr Wood advanced him as a potential witness but we declined to hear him not specifically on the grounds that he was available for the trial (which would have been circular given the case Mr Wood was mounting) but on the basis that his account was not credible.
60.
Mr Wood argued that it was wrong for counsel to rely on the instructions that they had received after the first trial because the evidence called from Mr Sayed Afzal Hussein did not go well for the defence: in circumstances which do not need to be recounted, his signed written statement was put to him in re-examination and, when further cross-examined, it became clear that the times on the written statement had been changed. Because of that fact, Mr Wood submits that the basis of the decision needed to be re-visited with the appellant notwithstanding the fact that the reasons for not calling him had not changed.
61.
The absence of trial notes again does not assist but we recognise that there is no evidence that counsel saw the appellant either after the alibi witness had concluded his evidence (on a Friday afternoon) when he also closed the defence case or on the following Monday morning, prior to the prosecution closing speech, when it would still have been possible to call Mr Saeed. What is clear, however, is that there is no suggestion that the appellant called to speak to his solicitors or counsel either after court on Friday or before court on Monday or used the weekend to impress upon them his concern that Mr Saeed had not been called.
62.
In
R v Irwin
[1987] 1 W.L.R. 902, the Court of Appeal held that the appellant’s counsel was under a duty to obtain his instructions before proceeding not to call alibi witnesses at his re-trial and rejected the argument that the evidence of the alibi witnesses would have made no difference to the outcome. This, however, was in circumstances where the witnesses had been called at the first trial and the concern was that this significant change in approach was not done in consultation with the client. It was, however, underlined that the court was not saying that in every case where the question of calling alibi witnesses it is vital that the client be expressly consulted “where, for example, the matter may have been thoroughly discussed before” (see page 906A).
63.
In our judgment, this is just such a case. Although frequent consultation with the client is to be encouraged, in contrast to the position in
Irwin
,
there was no change of approach such as would have taken the appellant by surprise and the fact that the solicitors had arranged for Mr Saeed to attend does not justify the conclusion that there was. It was not unreasonable for counsel to continue with the strategy adopted in the first trial and assume that the appellant’s instructions continued, in the absence of express instructions otherwise. Further, although Mr Wood asserts that the appellant did not consent to this course of action in the second trial, he did not go so far as to say that the appellant expressed this view to his representatives. In the circumstances, this proposed ground of appeal is also rejected.
Judicial Directions
64.
The fourth ground of appeal, which was the sole ground considered by the single judge (who refused leave), related to what was alleged to be a failure on the part of the judge to give an appropriate direction in respect of the appellant’s alibi. In this ground, as drafted, there was also an unparticularised reference to the direction relating to adverse inferences which Mr Wood also developed in oral argument.
65.
As to the alibi, Judge Paget accurately directed the jury that it was for the prosecution to prove the case and made it clear that it was not for the defendant to prove anything at any stage, providing an entirely appropriate route to verdict. When dealing with the alibi, he invited the jury to look at what evidence there was to prove the appellant’s guilt, observing that if the alibi was true “or may be true”, the appellant was not guilty, going on:
“If you conclude that the alibi is a false one, again, just as with the lie about where he was in the prepared statement, it does not automatically follow that the defendant is guilty and again the reasoning is the same and you think it is logic and common sense, a defendant may put forward a false alibi out of fear, for instance, and he may still be not guilty. So your approach must be to look at the evidence against him and decide whether that evidence proves his guilty. If you find that he did lie in that prepared statement, or if you find that he has put forward a false alibi, that may help to confirm his guilty but it cannot prove the case against him on its own.”
66.
Mr Hussain complained that the judge had failed to tell the jury that it was for the prosecution to disprove the alibi but, having reviewed what he had said, the judge decided not to add to his direction. It would, of course, been an easy matter to make the point but, in reality, it was abundantly clear from what the judge had already said that the appellant had to prove nothing. As the single judge observed, there is absolutely nothing to suggest that the jury were misled into supposing that the burden was on the appellant to prove it and the judge drove the jury back to looking at the evidence against the appellant (i.e. the identification and telephone evidence) in order to decide whether that evidence proved him guilty. The submission that the verdicts are unsafe because of the judge’s approach to this issue is rejected.
67.
The second limb of this submission, expanded in oral argument, concerned the direction as to adverse inferences in circumstances in which the appellant told the police that he was relying on his solicitor’s advice. The judge reminded the jury of the words of the caution and said:
“It is perfectly straightforward, … What it comes to is this. If you do not say where you were and you later say I was at, in this case, the restaurant in Southall, the Lahori Kuri, the jury is likely to say ‘Well why was that not mentioned at the time?’ The prosecution suggestion is that he had not had time to think up where he was, and had not had time to approach the witnesses. Well if that is right then of course it is a matter which that (
sic
)
does lead to an adverse inference that you can properly draw. But, if he was acting on his solicitor’s advice, and that is the sole reason he did not mention it, and perhaps he was confused because he could not remember the day clearly at that stage, well then it would not be right to draw any adverse inference against him, but it is a matter for you to decide where the truth lies in this case.”
68.
Mr Wood points to the Crown Court bench book and the requirement for a direction that if the jury did draw an adverse inference, they could not convict wholly or mainly on the strength of it. He submits that the jury should also have been directed not to draw an inference if there was any explanation for his failure and that the prosecution had to be so strong as to call for an answer. Finally, he argues that the jury should have been given a more detailed direction as to the effect of legal advice and the impact of his evidence about the name Uzi Butt (as to which the judge did proffer the explanation that he had a connection with the jeep which he had given to Uzi Butt “but he had never known his name as Mohammed Sheikh”).
69.
In our judgment, there is nothing in the way in which the case was left to the jury that, in the context of this case and the issues which arose, constitutes a material misdirection let alone one that starts to undermine the safety of these convictions. The summing up was not being conducted in a vacuum but against the background of opening and closing speeches and substantial evidence. Although the judge has a responsibility to direct the jury as to the law and fairly to summarise the facts, the directions must be tailored to the case which is being tried. The critical conflict related to the positive identifications, supported to such extent as they were, by contemporaneous assertion and the telephone evidence all to be contrasted with the case advanced by the defence: the entirety of the summing up directed the jury to a consideration of the conflicts and arguments that had to be resolved and did so fairly and in such a way as ensured that the burden and standard of proof were emphasised along with a consideration of the proper approach to the sub-issues that had arisen during the trial. The renewed ground of appeal also fails.
70.
In the circumstances, notwithstanding the efforts of Mr Wood and Mr Rhodes, after careful consideration, we do not consider that any of the complaints, either individually or collectively undermine the safety of these convictions. These renewed and proposed applications for leave to appeal are refused.
Sentence
71.
At the time of his conviction, the appellant was 36 years of age with one previous conviction for an offence of violence committed in a domestic setting for which he received a sentence of 10 months’ imprisonment. The Pre-Sentence Report noted that he continued categorically to deny the offences and described himself as being devoted to his children, a family and business man. He misused neither drugs nor alcohol. The assessment mechanism used identified a very high risk in respect of this type of offending. The risk of reconviction, however, was said to be low although the writer of the report went on:
“I have no specific evidence to dispute the findings but would suggest that Mr Shah’s risk of reconviction is likely to be aggravated by his attitude towards violence and the impact it has, especially if he does nothing to address his value system and respect for human life.”
72.
The judge observed that he had no idea why the appellant had acted as he had, commenting that the jury were sure that he did “and so am I”. Taking the sentence that would have been imposed had Mr Sheikh died as a sentence of life imprisonment with a minimum term of 30 years, the judge expressed the view that there was no way of knowing what sort of danger he posed many years hence and, in those circumstances, imposed a sentence of imprisonment for public protection. Given that culpability was no less than if Mr Sheikh had died, having considered the guideline issued by the Sentencing Guideline Council in relation to attempted murder, he took the view that the least appropriate determinate term would have been 40 years. Thus, the minimum tem of 20 years, less time spent on remand, was imposed.
73.
Mr Wood submits that an indeterminate sentence of imprisonment for public protection was not appropriate, and that, in any event, 40 years was the wrong starting point for either an indeterminate or determinate sentence. As to the first submission, although the sentence is no longer available, at the time of this trial,
s. 225(3) of the Criminal Justice Act 2003
permitted the court to impose such a sentence in identified types of case if the court was of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences. Given the nature of this offence and the circumstances of its commission, such a conclusion was almost inevitable; in any event, it was certainly a conclusion which the judge who had conducted this trial, was entitled to reach. The challenge to the indeterminate sentence is refused.
74.
The assessment of the appropriate minimum term, however, raises different issues. Within the guidelines, the most serious example of attempted murder includes those which, if the charge had been murder, would come within paras. 4 or 5 of
Schedule 21 of the Criminal Justice Act 2003
. The former applies to murders of exceptional gravity such that a full life tariff could be appropriate, and the latter includes murders of particular gravity (including murder with a firearm) such that, as the judge held, a starting point for the minimum term of 30 years is identified. In those cases, the starting point where there is serious and long term physical or psychological harm (which it is clear the judge decided applied in this case) is a determinate term of 30 years with a sentencing range of 27-35 years. That term necessarily involves an element of protection for the public which, in a sentence of imprisonment for public protection is reflected in the fact of an indeterminate term such that release is dependent on the Parole Board being satisfied as to the absence of risk posed to public safety.
75.
Taking all these features into account, and particularly reflecting that the judge had heard the trial and was in the best position to form a view as to the facts, he was entitled to reach conclusions as to the gravity of this offence. Thus, taking the aggravating and limited mitigating features into account, it was permissible for him to move towards the top of the bracket. We do not accept, however, that it was appropriate to go outside the bracket when fixing the minimum term for the indeterminate sentence, particularly given that the public risk is managed by the indeterminate element. In the circumstances, we allow the appeal against sentence, quash the minimum term of 20 years and substitute a minimum term of 17 years with time served on remand to count in relation to that term as it did in relation to the sentence passed by the judge.
76.
In summary, the applications for extensions of time and leave to appeal against conviction are refused; the appeal against sentence is allowed to the extent we have identified. We do not extend the representation order to Mr Wood or Mr Rhodes beyond the limited grant; in relation to their solicitor (who has had an even more limited grant of legal aid to date), on the basis that Mr Wood has made it clear that his assistance was of very great value, we extend it only to cover his attending on counsel over the two day hearing.