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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Mehmedov v R  EWCA Crim 1523 (18 July 2014)
Cite as: 178 JP 387,  EWCA Crim 1523,  1 WLR 495,  WLR 495,  WLR(D) 325,  2 Cr App R 29,  Crim LR 526, (2014) 178 JP 387
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ON APPEAL FROM
CROWN COURT IN SHEFFIELD
MR JUSTICE TEARE
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE OPENSHAW
HIS HONOUR JUDGE MELBOURNE INMAN QC
(SITTING AS A JUDGE OF THE CACD)
| ERHAN MEHMEDOV
|- and -
G J Reeds QC (instructed by CPS) for the Respondent
Hearing date: 9 July 2014
Crown Copyright ©
Lord Justice Pitchford :
The grounds of appeal
(1) The trial judge wrongly admitted evidence of the appellant's previous convictions;
(2) The convictions were not susceptible to proof under section 73 of the Police and Criminal Evidence Act 1984.
In consequence, it is submitted that the verdict of the jury was unsafe. Important evidence was given at trial by the appellant's 10 year old daughter to whom we shall refer as F. We continue the order made in the Crown Court pursuant to section 39 of the Children and Young Persons Act 1933 that the Court prohibits the publication of any form of media publication of the name, address or school or any particulars calculated to lead to the identification of F and further prohibits the publication of any picture of her.
Evidence at trial
Application to admit bad character evidence under section 101(1)(d) Criminal Justice Act 2003
i) On 16 April 1990 the appellant was "guilty of an attempt to intentionally murder Krasimir Zdravkov Sirakov" (sentence 12 years imprisonment);
ii) On 6 April 1990 the appellant "had taken a golden chain and a golden medallion … from Nevyana Svetlinova Emilova … using force with the intention to unlawfully take it" (sentence 2 years 6 months imprisonment);
iii) On 4 My 1990 the appellant raped Neli Haralanova Haralanova, a person under the age of 16 years, causing her medium bodily harm, that is "lasting difficulties in the movement of the left arm" (7 years imprisonment).
The certificate records that the defendant had pleaded guilty at the preliminary investigation to the charges of robbery and rape but before the court he did not plead guilty to any of the charges. The certificate proceeds to set out the evidence accepted by the court in finding him guilty of all three charges. It does not refer to any evidence from the defendant.
Application to admit bad character evidence under section 101(1)(g) Criminal Justice Act 2003
i) The appellant said that Ms Borisova had been a prostitute when they had first met. However, she had declined his offer of money and said that she wanted to be saved from the life she was leading. A relationship between them commenced and, in effect, the appellant claimed that he had saved her from her life of prostitution. There was no other evidence about Ms Borisova's life in South Wales before she met the appellant. She was born in 1967 in Bulgaria, graduated as a machine engineer, married and had a son. She and her husband divorced in 2003. Ms Borisova came to the United Kingdom in 2010 seeking work to help meet the cost of her son's university education.
ii) The appellant claimed that in about August 2012, while they were living in Sheffield with the two children, Ms Borisova hatched a plan that would enable them, fraudulently, to claim extra state benefits. She suggested to the appellant that they should pretend to argue and fight. She would then make complains to the police and, once the appellant had been removed from the house, both he and Ms Borisova would receive housing benefit and, by that means, their incomes would increase. It was the appellant's suggestion that Ms Borisova had planned the County Court proceedings in order to exclude the appellant from the house and to obtain a residence order for their child in her favour.
iii) The appellant claimed that on 10 December 2012, the day Ms Borisova left him, he found his daughter, F, crying. F told him that Ms Borisova had hit her. Ms Borisova was drinking whisky in the kitchen. Both the appellant and Ms Borisova left the house to walk to the bus stop. The appellant was going to visit a solicitor because he had been summoned for an offence of drink driving. According to the appellant, en route to the bus stop Ms Borisova admitted that she had struck his daughter and told him that F had taken part in group sexual activity in Turkey. On his return from seeing the solicitor he found Ms Borisova had packed ready to leave and threatened to make sure he went to prison.
iv) It was not disputed that on 11 December Ms Borisova sought help from Sheffield's housing department. She was told that the council could not assist with housing but she was given information about charities that might assist her. On 14 December she commenced County Court proceedings. The appellant said in evidence that the allegations she made about him in her evidence to the court were a pack of lies.
v) As to the day of the killing, the appellant said he was on his way to work. His explanation for the possession of a knife was that he intended to sharpen it at work. According to his employer he had never taken a knife to work to sharpen it on any previous occasion. Before he made his way to work he accompanied his mother and the children towards the meeting point where I was to be handed over to Ms Borisova. He claimed that when he approached Ms Borisova she told him that she had "a rich fucker" and the appellant was "a fucking bastard". The background, culminating in these taunts, caused the appellant to lose his self-control. He only remembered punching Ms Borisova. He ended up in his bedroom at home with a knife wound to his hand.
"(1) In Bulgaria during the 1980s under communist rule there was widespread and severe restrictions on, discrimination against, and mistreatment of the Turkish minority under a policy of forced assimilation. This policy officially came to an end in December 1989, after the communists were removed from power, but mistreatment of, and discrimination against, the Turkish minority was continuing at the time of the defendant's convictions.
(2) There is no indication in the available records to suggest that the defendant was represented or that witnesses gave live evidence (including the court record of proceedings called "the verdict"). The expert would have expected some indication if the defendant was represented or live witnesses had given evidence.
(3) At the time of the convictions the system of criminal law and procedure was the Penal Code issued under the communist regime. The rules provided some basic protections such as the presumption of innocence and the requirement that the prosecution prove the case. However, there are official reports that under the communist system there were widespread abuses of the rules and widespread corruption.
(4) The court "verdict" contains the following: "the defendant pleaded guilty at the preliminary investigation for the accusations to an offence of robbery and an offence of violence against a woman. He pleaded not guilty to attempted murder claiming that he had committed the act in unavoidable defence"."
"It is important that you should understand why you have heard that evidence of his previous convictions. You have heard it because the defendant in his evidence said several things about Dimitrina which, if they are or may be true, may cause you to doubt whether you could rely upon her affidavits and statements of truth. In those circumstances it is only fair that you know about the defendant's character insofar as it is revealed by his convictions. That is the only reason that you have been told of these convictions. That knowledge may mean that it is more likely that the allegations he has made against Dimitrina are false than if they were made by a person of good character. A person with a bad character may be less likely to tell the truth but it does not follow that he is incapable of doing so. It is a matter for you to judge. Of course, if, having considered the defendant's evidence about his trial in Bulgaria, supported by the matters read to you this morning with regard to the position in Bulgaria in 1991, you consider that he may not have committed the offences of which he was convicted, either because he may have had a good defence to the charge of attempted murder or because the trial process was not fair, then you will of course disregard his convictions in Bulgaria, and in any case you must not treat his convictions as evidence that he is likely to have committed the offence of murder for which he is on trial in this court. They are not evidence of that at all and you have only been told about his convictions for a limited and defined purpose, namely to enable you to decide whether you believe what he has said about Dimitrina's character."
"73(1) Where in any proceedings the fact that a person has in the United Kingdom or any other member state been convicted … of an offence … is admissible in evidence, it may be proved by producing a certificate of conviction … relating to that offence, and proving that the person named in the certificate as having been convicted … of the offence is the person whose conviction … is to be proved."
Subsections (2) and (3) define the requirements of the 'certificate of conviction'. The prosecution produced copies of the certificate of conviction whose authenticity was proved by the stamp of the Shumen district court. However, Mr Cox QC pointed out that the certificate related to convictions that took place during a period of time before Bulgaria's accession to the Treaty of the European Union. He submits that there should be read into section 73 a requirement that the conviction should have taken place while Bulgaria was a member state, namely in and after 2006.
"1. Each member state shall ensure that in the course or criminal proceedings against a person, previous convictions handed down against the same person for different facts in other member states, in respect of which information has been obtained under applicable instruments in mutual legal assistance or on the exchange of information extracted from criminal records, are taken into account to the extent previous national convictions are taken into account, and that equivalent legal effects are attached to them as to previous national convictions, in accordance with national law."
Mr Cox QC points out that Article 1.2 of the Framework Decision provides that it shall not have the effect of amending the obligation to respect the fundamental rights and fundamental legal principles enshrined in Article 6 of the Treaty. Article 6.2 of the Treaty provides that the Union shall respect fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed on 4 November 1950. His argument is that in order to bring domestic law into compliance with the Framework Decision it is necessary to construe section 73, pursuant to section 3 of the Human Rights Act 1998, consistently with the United Kingdom's obligations. Accordingly, section 73 should be held not to apply to any conviction that took place under a regime which failed to guarantee a fair trial by the standards of Article 6 of the ECHR.
Safety of the verdict