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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Shabir, R. v [2012] EWCA Crim 2564 (29 November 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/2564.html Cite as: [2012] EWCA Crim 2564 |
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ON APPEAL FROM BRADFORD CROWN COURT
HHJ STEWART QC
T20107516
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE ANDREW SMITH
and
HIS HONOUR JUDGE ROOK QC
____________________
Regina |
Respondent |
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- and - |
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Mohammed Haness Shabir |
Appellant |
____________________
Mr Rodney Jameson QC (instructed by Shaikh Ayub) for the Appellant
Hearing date : 16/10/2012
____________________
Crown Copyright ©
Lord Justice Aikens :
I. Synopsis
II. The facts giving rise to the charges.
III. The History of the proceedings up to the second trial: (A) Rafique's statements
"I said in my last statement how I know Hanees and I know him as Hanny".
In fact Rafique had not said in his first statement that he knew the appellant as "Hanny". In the first statement Rafique always referred to the appellant as "Hanees" or "Hanees Shabir". Rafique said in his second statement that "Hanny" had two gloves on, which were the same as the previous night, being "black leather, light fitting, like a golfer's glove".
(B) The First Trial before HHJ Goss QC
(C) After the first trial.
"[it] remains marked with persecutory and paranoid delusions, occasional grandiose delusions, occasional irritability, psychomotor agitation during periods of elation or retardation during depressive illness….he displays reasonable insight into his current mental state, his diagnosis and the need for treatment".[8]
IV. The second trial: (A) the application to admit Rafique's statements under s.116 CJA
"I am providing this statement to say that I cannot go into court to give my evidence. The reason for this is that I am terrified of going into court. There are three people on trial who could go to prison as a result of my evidence. They are Mohammed Asim Khan who I know as "Beasty", his brother Mohammed Aquib and Mohammed Hanees Shabihir. I am very frightened of these people. I am in fear of what they will do to me when I get out of prison and return to the area where I live. They also know my family and I am scared of what they will do to my family. When I say I am scared it is because I believe physical violence will be used against me or my family. I am currently serving a prison sentence and have been at that prison for about two months. While there several people have approached me and called me a grass. Several times I have been threatened with violence while there. Before I moved to my present prison I was at Doncaster. While at Doncaster I was assaulted on three occasions. While being assaulted I was again called a grass. On each of those occasions I informed the staff at Doncaster prison. I do not wish to say anything else about this case".
"116 Cases where a witness is unavailable
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
…………….
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.
(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard –
(a) to the statement's contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
(d) any other relevant circumstances. "
(B). The voir dire
"I [ie. DC O'Keefe] asked for a statement about whether he wanted to make a statement as to why he did not wish to give evidence. He gave reasons why not, he did not wish to give evidence and what his fears were. I asked him whether his witness statement was true. He said it was true. He said he was frightened to give evidence…..I showed him the witness statement I took from him. He wanted me to read it. He signed it. He said he was happy with it. I never said his witness statement would be read. I was with him for 25, about 20 to 25 minutes".
The judge also recorded that DC O'Keefe stated that he did not note down the questions put to Rafique or his answers, but the statement was prepared after Rafique had answered all questions, so that they knew what he wanted to say.
(C) The judge's ruling on the admission of Rafique's statements under s.116 CJA
"However, the problems which the defence of [the appellant] encounter are, if the witness is in fear, which I find he is, due to [the appellant's] behaviour, and are therefore to a large extent self-inflicted. The interests of justice which I am obliged to consider apply equally to the prosecution as to the defence".[16]
(D) Ruling on the disclosure of the identity of the witness E.
(E). Ruling on application to treat the witnesses Sohail Mohammed and Tauseef Mahmood as "hostile".
(F). The agreed facts concerning Rafique
(G) The summing up
"…the witness statements of Sohail and Tauseef, both of which indentify Shabhir as the gunman wearing gloves, is capable, if you accept that it is this Shabhir they were describing, as being corroborative of [Rafique's] identification of Shabhir. Fauseef said to the police when he was taken through his statement that it was 100 per cent true".
'…"Could this be that [Sohail] was referring, when talking about "Hanny" to someone other than the [appellant], Shabhir? Particularly in the light of the fact that he said at the identification parade, Ansar "wasn't there" which we know in fact is true…'.
V. The Grounds of Appeal
VI. Ground One: the admission of the hearsay statements of Rafique: (A) the legal principles.
(B) Application of the legal principles to this case
VII. Other grounds of appeal.
VIII. Disposal
Note 1 [2009] 2 AC 373. [Back] Note 2 [2012] 2 Cr App R 32
[Back] Note 3 [2012] EWCA Crim 1509.
[Back] Note 4 20 years imprisonment for attempted murder; 5 years concurrent for each of the firearm offences and 6 months concurrent for the assault charge. 144 days spent on remand was to count towards sentence under section 240 of the CJA. [Back] Note 5 See section 116(1)(b), R v Mayers [2009] 1 Cr App R 30 and R v Riat [2012] EWCA Crim 1509 at [13]. [Back] Note 6 They would become evidence under section 119 of the CJA. [Back] Note 7 Transcript of 25 Feb 2011 lines 17-18. [Back] Note 8 Report para 5.13. [Back] Note 9 Ruling transcript page 9 line 36. It is not clear whether this “cell” was at Wolds prison or at Bradford Crown Court. [Back] Note 10 Page 10 of the transcript of the ruling on the application. [Back] Note 11 Transcript page 5 lines 12-15. [Back] Note 12 Transcript page 17 lines 12-14. [Back] Note 13 Transcript page 13 lines 20-22. [Back] Note 14 Transcript page 16 lines4-5. [Back] Note 15 Transcript page 16 lines 10-11. [Back] Note 16 Transcript page 17 line 21 to page 18 line 2. [Back] Note 17 Transcript page 18 lines 3-5. [Back] Note 18 Transcript page 10 lines 1-4. [Back] Note 19 Transcript page 11 lines 17-21. [Back] Note 20 Transcript page 13 lines 9-14. [Back] Note 21 Transcript page 18 lines 18 to page 19 line 6. [Back] Note 22 Transcript page 20 lines 7-8. [Back] Note 23 Transcript page 21 line 22 – page 22 line 2. [Back] Note 24 Transcript page 27 lines 45-46. [Back] Note 25 Transcript page 35 lines 16-19. [Back] Note 26 [2010] 2 AC 373
[Back] Note 27 [2012] 2 Cr App R 32
[Back] Note 28 [2012] EWCA Crim 1509.
[Back] Note 29 Eg domestic violence cases: see R v Riat at [54(ii)]. In those and perhaps other cases the court may be ill-advised to seek to test the basis of fear by calling the witness to give evidence on the issue. [Back] Note 30 See Riat at [54(ii)]. [Back] Note 31 Cf. R v H, W and M [2001] Crim LR 815, a decision under the 1988 Act. In Davies [2006] EWCA Crim 2643 it was said that this decision had been superseded by s.116 of the CJA, but Davies itself must be read in the light of the SC’s decision in Horncastle followed by this court’s decision in Riat.
[Back] Note 32 See Riat at [54(ii)] [Back] Note 33 R v Riat at [16]. [Back] Note 34 See Horncastle in this court, particularly at [87], reproduced as an annexe to the judgment in Riat.
[Back] Note 35 See Riat at [17]. [Back] Note 36 See Riat at [18]. [Back] Note 37 Summing up transcript page 85 lines 14-15. [Back] Note 38 Summing up transcript page 72 line 13. [Back] Note 39 Ruling transcript page 2 lines 13-15. [Back] Note 40 Transcript page 10 line 12. [Back] Note 41 R v Riat [2012] EWCA Crim 1509 at [54 (ii)], discussing the case of Wilson, one of those appealed. [Back] Note 42 R v Riat at [33]. [Back] Note 43 In Horncastle in the CACD, at [43], the court said drug users “might be thought to belong to a category of the potentially very unreliable [witness]”. [Back] Note 45 Art 6(1) guarantees the right of everyone to a “fair and public hearing”. Article 6(3)(d) guarantees the right of a person charged with a criminal offence to “examine or have examined witnesses against him…”. It is the latter provision that has given rise to the debates in Horncastle and subsequently in the ECtHR Grand Chamber in Al-Khawaja and Tahery v the UK [2011] ECHR 2127, considered in R v Ibrahim [2012] 2 Cr App $ 32.
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