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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 >> Shah v R.  EWCA Crim 1250 (14 July 2015)
Cite as:  EWCA Crim 1250
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ON APPEAL FROM THE CENTRAL CRIMINAL COURT
His Honour Judge Paget Q.C.
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SINGH
MRS JUSTICE ELISABETH LAING D.B.E
| BABAR ALI SHAH
|- and -
Oliver Glasgow for the Respondent
Hearing dates : 24-25 June 2015
Crown Copyright ©
Sir Brian Leveson P :
The Procedural History
The Appellant's Legal Representation
"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."
"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of other subsequent matters, including the aspersions on the credibility of the victim and the fact that he had withdrawn the allegation.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."
"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."
"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."
"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."
"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."