By Paul Taylor QC
Murder – attempted murder – conviction and sentence – improper cross examination - Summing up - Fresh evidence
R v Jama Ahmed
 EWCA Crim 739
Case commentary by Paul Taylor QC
The application for leave to appeal against conviction / sentence was referred by the single judge. The offences arose from a revenge attack between rivals of a Somali group. The Crown's case was that the motive for the index shooting was the killing of a gang member and, in JA’s case, since his younger brother had been assaulted by the victim a few months before the murder. The grounds (all rejected) related to: the admission of intelligence material; Multiple hearsay; Improper cross-examination of JA; summing up; fresh evidence.
The improper cross-examination ground: The Crown without application cross-examined JA about other offences of which he had been accused but not convicted. The judge declined to discharge the jury, and later directed it that the questions did not suggest JA had committed any offence of which he was not convicted. The CACD stated that “The appropriate way to behave was not in play. Not only did leading counsel for the Applicant endure the discourtesy of not being alerted but the material in question was evidence of bad character and, statutorily, required an application.” “However… the jury was directed appropriately and clearly. … the evidence was plainly admissible and the subject of an unimpugnable direction in clear terms.”
The summing up ground: The summing up is criticised on three fronts: for an insufficiently robust warning of the dangers of hearsay, for an absence of directions on specific hearsay problems; an over-robust direction on the inference available from the Applicant's silence in interview. The CACD stated:
Adverse inference: It is unfortunate that at one stage the judge used "might" – "… you might decide not to draw any adverse inference…" - when the clause should have read "you must not draw any adverse inference". This error however sits within an accurate direction as to what the jury had to be satisfied about before reaching a conclusion adverse to the Applicant.
The fresh evidence ground: The proposed fresh evidence did not go to an issue at trial. “…this was not a case in which an alibi defence would have answered the case for the Crown.”
This case is a useful illustration of two of the ways in which the CACD approaches the potential impact of any defects in legal directions:
- Firstly, it will consider the complaint in the context of the summing up as a whole. Here it was stated: “A summing up… is profitably read as an entire document. Selected extracts on their face deficient may be remedied by reference to other parts of the whole.”
- Secondly, it will ask itself whether, despite the defect, there was any real danger in the jury failing to understand what was the correct legal approach to the issue. In this case, the CACD stated in relation to the hearsay direction that despite a failure to repeat an earlier direction, “the jury could not have failed to understand how it should approach hearsay in the light of the entirety of the help the judge offered.”
Fresh evidence – expert - arson
R v Rana (Jodie)
 EWCA Crim 725
Case commentary by Farrhat Arshad
This was an out of time application for leave to appeal against conviction, on the basis of fresh evidence.
In 2015 the appellant had been convicted of arson, being reckless as to whether life was endangered and doing an act tending to pervert the course of justice.. The Prosecution alleged that after a night out R had returned to the family home, where her parents and cat slept, poured accelerant on the stairs and set them alight. There were no eye-witnesses. The case was based on circumstantial evidence. Her motivation, alleged the Crown, was to blame her ex-partner by accusing him of the crime.
Much of the evidence concerned R’s mobile telephone which showed that she had been near her home address at the relevant time and also showed that she had made telephone calls at particular times. Of particular importance was evidence showing that her mobile telephone had connected to the home wireless router at 0215, five minutes before the smoke alarm was triggered and her mother telephoned the fire brigade. The Prosecution obtained an expert report which stated that the data was consistent with the handset being within a 20-25 metre radius from the home address when it connected at 0215. This was based on the Virgin router literature and no independent tests had been carried out by the expert. Also included in the expert report was a map showing two concentric circles around the router. One at 20 metres was marked "inner margin" and the other at 25 metres "outer margin". R denied that she had been within 20-25 metres of the house at this time and maintained that she was some 80 metres away at the time. Her then legal team spoke to their own expert and he confirmed the Prosecution’s expert’s assessment, again without carrying out any of his own tests and based on general assumptions. R’s own case (confirmed in her evidence) was that the phone regularly connected much further away. Nonetheless, there was an agreed fact put before the jury:
"Map 3.4 shows the area where the handset could have been located to connect with the router in the bedroom. The highlighted segment [within 20 metres] shows the area most likely for the handset to have been located but it could have been located anywhere within a radius of 25 metres from the router's location but not outside that radius."
Following her conviction fresh solicitors and fresh counsel were instructed. An expert was instructed to carry out tests with a mobile telephone and the same model of router to ascertain what the range actually was. That expert found that his tests produced a "reasonably solid service" up to 72 metres from the router and several areas up to 160m away where the test handset logged onto the network and exchanged data. His tests also showed that the distance from the router was not the determining factor as to whether there was a connection. There was no connection in many places close by and a good connection at considerable distances.
It was submitted on behalf of the appellant that the evidence of the appellant's close proximity to the house at 02.15.04 was at the heart of the Prosecution case and was relied upon not only to place her in the house when the fire was started but also as a significant attack upon her credibility. As a result the conviction was unsafe. The Prosecution accepted that the expert evidence was an important component of the Prosecution case in what was a circumstantial but strong case but submitted that the conviction was safe having regard to the other evidence.
The Court (Lord Burnett LCJ, Carr J and Phillips J) disagreed and quashed the conviction as unsafe, stating, “we have concluded that the fresh evidence, undermining as it does an important part of the Prosecution case both on timing and also the potency of the appellant's lies, renders the conviction unsafe.” No retrial was ordered.
When considering the impact of the fresh evidence on the safety of the conviction the Court made no reference to the jury impact test set out in Pendleton. However, reference had been made to Pendleton in the written skeleton argument and orally it was argued that the effect of the cross-examination based on the flawed expert evidence must have been devastating to the appellant’s credibility in the eyes of the jury. The Court had before them the transcript of the cross-examination so that the force of the attack upon the appellant’s credibility on this point could be seen. It was argued that such an attack could now be seen to be unfair and unsupported by expert evidence in fact. It may well be that the Court very much had the Pendleton jury impact test in mind though it was not referred to in the judgment.
If you have questions about any of these cases please do get in touch with Paul Taylor QC or Farrhat Arshad