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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ali, R. v [2024] EWCA Crim 77 (09 February 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/77.html Cite as: [2024] WLR(D) 79, [2024] EWCA Crim 77 |
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ON APPEAL FROM THE SNARESBROOK CROWN COURT
Her Honour Judge Levitt KC
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE BAKER
and
SIR ROBIN SPENCER
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REX |
Respondent |
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- and |
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MAHBOOB ALI |
Appellant |
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Asma Kham (who did not appear below) for the Respondent
Hearing date: 07 December 2023
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Crown Copyright ©
Lord Justice Edis :
"The learned Judge erred in allowing the prosecution to read a written statement made by Ali Nur RAHMAN to the jury after the close of the defence case to rebut the defence of alibi. The statement was hearsay and was wrongly admitted into evidence. If it was admissible it should have been excluded under section 78 PACE. The factors set out in section 114(2) of the Criminal Justice Act 2003 were relevant factors for the Court to consider when exercising its discretion whether to admit it"
The Facts
The Undisputed Facts
The Prosecution Case
The statement of Ali Nur Rahman
"[The statement of Mr. Rahman] is clearly rebuttal evidence, because it contradicts whatever [the appellant and Ms. Begum] have said in a very important part of Mr. Ali's case, which is that he was elsewhere and the vehicle involved in the robbery was lent to Rubena ..the Crown is not asserting the truth of the contents of the statement but instead wish to adduce parts that refer to the alibi and the parties' relationships."
"The purpose of adducing the statement is to contradict the evidence given by Mr. Ali and by Rubena Begum. So it is not being adduced as evidence of any matters stated within it."
"This is a situation where the prosecution say we do not know and we do not care whether the account given about the Range Rover is true, what we are saying is this is a witness statement that was taken from a witness whose name was put forward by the defence in support of the defendant's alibi and it directly contradicts what was said by the defendant."
"I have been asked by counsel for the second defendant to consider the factors in section 114(2) as relevant to the exercise of my discretion. I am not persuaded that this has any relevance to the question of fairness in given that those factors all relate to the reliability of the evidence and that is not the issue for the jury, who are not being asked to consider whether what is said in the statement is true or not, merely to consider the extent to which it is inconsistent with what was said by the second defendant in evidence and by the witness he called."
"You were told in this that Mr Mahboob Ali's defence statement was served on 17 January, in which he named two alibi witnesses, Rubena Begum and Ali Noor Rahman. The police interviewed both of those people. The defence for Mr Ali had indicated in the defence statement that they were likely to call both witnesses, but during the trial they made the decision not to call Mr Rahman, as was their right. The prosecution then decided they would call Mr Rahman as a witness, but by then he could not be found, and the learned judge, that is me, gave the prosecution permission to read the witness statement which Mr Ali Noor Rahman had given to the police on 27 January 2023."
"Now think about what Mr Rahman said [inaudible] remember I read it out, yes. He said about this lending of the cars. Remember Rahman was brought into the frame at the behest of the Defence. The Crown didn't how would they know who Rahman is? So, remember what he said. It was not November 2021. How does he remember this? The fully loaded car. Remember, I kept asking people about Range Rovers and everybody puzzled; why is he asking about Range Rovers? There you go; right. Why would you see the number of convictions Rahman has, but why would he lie about this? What's in it for him? If anybody was telling the truth in all of this it's Mr Rahman.
Of course you could say he's talking about Shameen. There's Mabs, Shipon remember when Shipon came out as a name? We all have our different names, yes. I'm Mr Siri, but my clients might know me as somebody else. Who knows? You know, I might have my own street name. Barristers do sometimes. Anyway, there we are. Don't get confused about these different names. So both these accounts are the most bizarre stories I've heard in a long time or shall I say story because that's what they are. Now got to be careful about what I'm going to say next. So as someone paraphrased to me more colourfully recently don't let them pee down your back and tell you that it's raining. If you want to keep dry, there's only one verdict, isn't there? Both of these gentlemen these forgetful gentlemen are guilty. And don't confuse yourself by saying, 'Oh, yes, but some are ' That's the red herring coming back to haunt you. You have eleven other people to help you along if you're confused."
"I suggest, members of the jury, that [Mr. Rahman] has lied and was and/or was completely confused by what he was being asked to recall. And before you accept his evidence as a truthful account of what he, the Crown would say, he was supposed to be saying, having been put up to it falsely by Mr. Ali, bear in mind the background that that man comes from, which you have been reminded of already. Bear in mind that his evidence is completely at odds with Rubina Begum's evidence, and that she did come here, she did subject herself to cross-examination, she was challenged for consistency, and she maintained a consistent account. And bear in mind this, most of all, that I had no opportunity of questioning Ali Noor Rahman to challenge him or to test him on any of his account."
"The prosecution do not say that the content of that witness statement is true: indeed their position is that they have no idea whether it is true or not. That is not why you heard this evidence.
The prosecution's reason for putting it before you is that they say that it completely undermines Mr Ali's defence of alibi. Their case is that if people are lying, then their accounts may well unravel and be inconsistent with each other.
The defence would have wanted to ask questions of Mr Rahman and to have challenged important parts of his statement, but that is not possible because he cannot be found, and you will have to consider whether or not the defence is disadvantaged by this."
The appellant's submissions
a. failed to consider the checklist of relevant factors in section 114(1)(d);
b. held those factors were irrelevant to the exercise of the exclusionary discretion under section 78 because the jury were not being asked to decide whether the statement was true; and
c. failed to direct the jury appropriately given the fact that the prosecution clearly were relying on the statement as being evidence of the matters stated in it.
The prosecution submission
"Summary
13. The statement of Rahman was allowed to be adduced because it was not identified as Hearsay but as rebuttal alibi evidence which was forced to be ex improviso because of the late decision by the defence to refer to Rahman as an alibi when they clearly should not have done so.
14. Any prejudice to the Defendant was created by the defence legal team themselves .The level of prejudice created against the defendant by his own legal team by seeming errors of omission and commission in not recognising the need to mitigate poison within Rahman's statement at various times before and during the trial was far greater than anything inflicted by the Crown.
15. Even if it was conceded by the Prosecution that the statement should not have been adduced, any prejudice to the defence has to be weighed against the overwhelming evidence and the sheer ridiculousness of the reliance on the alibi of Ms. Begum.
16. For the above reasons, this appeal should be dismissed."
Discussion and decision
a. The first basis involves the statement being false. It might demonstrate that the appellant was willing and able to procure people to tell lies for him. This would require the jury to be sure that the witness statement was dishonest and false. The witness was attempting to say what he had been asked to say, but by the time the police spoke to him he had forgotten the script and therefore ended up getting things seriously wrong. No doubt the plan had been that he would "refresh his memory" from a statement made to the defence solicitors and get things right in the witness box. Mr. O'Toole told the judge that a witness statement had indeed been obtained by the defence solicitors, but this was never disclosed. This line of argument, we should make it clear, does not involve any allegation of impropriety against the defence lawyers. If the jury accepted this line of argument it would undermine the evidence of the appellant himself and of Rubina Begum given during the trial.
b. The second basis involves the statement being reliable and true. It is hearsay evidence of the matters stated in the statement, on which the jury is invited to rely. This would, subject to an application and ruling, be admissible under section 116 (witness cannot be found) or section 114(1)(d) (the interests of justice safety valve).
a. The submissions at trial and on appeal involved quite extensive consideration of whether it was fair to the appellant to elicit this statement at that stage. That is an important factor, but the prior question of whether and, if so on what basis, it was admissible at all did sometimes become elided with the discussion about fairness.
b. The first of the two bases involves an inferential finding that the appellant had contrived a false defence. Fairness would generally require that this be explored with him in cross-examination. In general terms the allegation that his defence was a "put up job" was explored, in particular by Mr. Cohen for the co-accused, but no-one asked him anything about how he had procured a witness statement from Ali Nur Rahman and why, when the police took a statement from that witness, it turned out to be so very different from what the appellant must have expected him to say when his defence statement was served on the 27 January 2023.
"The prosecution's reason for putting it before you is that they say that it completely undermines Mr Ali's defence of alibi. Their case is that if people are lying, then their accounts may well unravel and be inconsistent with each other."
Sentence
"1. Disparity arguments on sentence rarely succeed and in my view they cannot do so here. The sentence imposed on the applicant was within the adjusted Guideline range. The Judge explained the differences between the two accused. The applicant was held to be the prime mover; was older; and sought to dispose of the stolen property. The co-accused, on the other hand, was held not to be a prime mover; was a carer to his mother; had strong personal references; and had mental health issues.
2. This was a serious planned robbery, involving a group attack on a DPD employee and where a knife was produced. A sentence of 7 years after trial was in such circumstances not excessive. Since the disparity ground is not, in my assessment, arguable, it follows that it is not arguable that this sentence was manifestly excessive. I therefore also refuse to grant an extension of time."