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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 >> Sheikh v R  EWCA Crim 2625 (31 October 2006)
Cite as:  EWCA Crim 2625
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Scott
The Crown Court at Leeds
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE AIKENS
THE HONOURABLE MR JUSTICE LLOYD JONES
| ANVER DAUD SHEIKH
|- and -
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J. Goose QC for the Respondent
Crown Copyright ©
LORD JUSTICE HOOPER:
"16. ... in his statement [MG] described the circumstances leading to the episode of sexual abuse. He spoke of conversations with the appellant when he, [MG], spoke about his problems and the appellant listened. He said that he had told the appellant that a boy called 'Danny', a black boy from Sheffield, had beaten him up and was going to do it again. He described the appellant's reaction to that. The fresh evidence also establishes the identity of the boy, Danny, and that he was admitted to the home on 13th August 1981 and thus was not there at the same time as the appellant. That material was not available to the defence at trial and the Crown concede that its absence renders unsafe the conviction ... ."
"We do know that various documentation is missing. We do not know when that documentation went missing. It may have been in existence in 1992 or 1994. It certainly was not in existence in, I am not sure we have got the date but I suspect it was the year 2000 when the various documents were recovered from Catholic Care. Crucial among those documents is the day book. I needn't canvas with your Honour the contents of that or its importance, but what it would show inter alia is exactly who was on duty where, on any given day.
The second set of records which have gone missing, which are crucial, are the personnel records. Your Honour may I link in with the day book the staff rotas which were mentioned, they are really the same thing but in a different way. They also have gone missing. Had one or the other existed the absence of the other would not of itself be harmful.
The personnel records being missing means that we cannot tell when it was that Mr Sheikh, as he is now, took leave. We can deduce from Mr Agnew's evidence that his decision to leave, and therefore the posting of his notice, was very late, because it doesn't get reported at any monthly meeting, management meeting until September of 1980. Mr Agnew could not remember whether or not there would be August meetings. If they were it means he must have decided ...
JUDGE SCOTT: He thought there probably wouldn't because it was the middle of the holiday period.
MR COSGROVE: He thought they probably wouldn't but he couldn't say there would not be. If there was that August meeting, and if I may have recourse to the burden and standard on that basis, had there been an August meeting then the August meeting had not had reported to it this event and it means therefore that it was very, very late on indeed that Mr Sheikh submitted his resignation. Had there not been an August meeting it was not reported to the July meeting, which means it is still very late.
Your Honour, the reason for that is this, that leave was permitted, eight weeks leave was permitted on a calendar year basis and any remaining leave open to Mr Sheikh therefore would be leave he would have to take at the end of his period of employment. That period of employment would be towards the end of August of 1980, and indeed if you think about the practicalities of it, if Mr Agnew's prompted recollection is correct that during the holiday periods all the boys were moved into the one house which enabled there to be less staff cover, the time when leave taken at short notice would be least harmful or damaging to the institution would be during those holiday periods, which would be the last two weeks in August. But of course we cannot know because of the absence of the record.
[MG's] allegations are predicated upon there being an opportunity for the offence to be committed. If there was no opportunity there could be no offence, and the evidence which we have, the possibility of there being an opportunity is low. [MG] was in B house and said he never moved from B house. ...
Now in those circumstances, the very existence of those documents would provide the means by which the Defendant could show beyond doubt what I think your Honour has called reverse alibi. He is denied that opportunity because of the absence of those records. We submit there cannot be a clearer example of there being prejudice to the Defendant because of a consequence of delay, the consequence of delay being the absence, either through destruction or mislaying, of those critical records."
"... we submit it will not do to suggest that this offence could have been committed when Mr Sheikh was not on duty. That is not consistent in our submission with the evidence given by [MG] who spoke about him being working on house B on a number of occasions over a period of time as the trust built up, and indeed his evidence about what occurred on the night in question, namely the complaint and the locking in the room, making sure he was secure, are consistent only with that Mr Sheikh was on duty, and therefore it is not possible to try and - I mean this without complaint - wriggle out of the notion that whether or not he was on duty is a highly relevant consideration."
"What Mr Cosgrove complains about now is the non-availability of documentation from the school which he regards as being crucial, so crucial as to be putting the Defence at a distinct disadvantage so that there could properly be described as being prejudice, and prejudice so that there could not be a fair trial of this Defendant. The documentation is a day book, we have the day book from 2002, a few random dates picked out by Mr ...
MR COSGROVE: 1982 your Honour.
JUDGE SCOTT: 1982, sorry, picked out by Mr Cosgrove and a staff rota, the staff rota would have been able to show who was actually on duty at the time, and personnel records which would have helped, or may have helped if they were properly kept, to see whether the Defendant was on his holiday.
Obviously in the course of the case I have seen the witness, [MG], who got a little upset on occasions, but he was properly cross-examined in two basic ways, one about the documents which were disclosed and secondly about the inconsistencies between what he was saying today and on a previous occasion at the trial, and in his statement.
The course of this case has been determined by the Court of Appeal's decision to quash the original conviction. I do not know exactly what happened at the Court of Appeal, although I have a transcript. But basically it appears to be a matter of dates as to whether a man called Danny Bent was available to be at the school at the time and place where the witness said he was in the first trial.
But this trial is wholly different. I know that it is wholly different because of the amount of disclosure there has been by my hand through to the Defence of Social Services records. Simply put, there is a great deal more being disclosed for this trial than ever was at the original trial. Obviously behind the scenes there has been proper disclosure of everything the Crown have in their possession, and these books, personnel records, rotas, clearly are not here and they are clearly capable of being quite useful either to the Crown or to the Defence. I say quite useful, I think Mr Cosgrove would say that is an understatement, he would probably say they would have been very, very useful and crucial.
But looking at this submission now, and the case of Smolinski, as I understand it I have to look at whether on the balance of probabilities the Defence have shown that they are so prejudiced that there cannot be a fair trial because of the documents not being here, and because I was warned of this submission I have been thinking about it all the way through, and all I need to say is that my considered judgment is that from the moment that it has been brought to my attention this would be the submission I have been thinking, "Is this a fair trial? Is this a fair matter to be put before the Jury at the conclusion of the evidence?", and at no stage after the evidence of [MG] have I said to myself, "This is not a fair trial, if there is a conviction it is unsafe, unsatisfactory". At no stage can I say to myself, or have I said to myself, "This trial is unfair and a fair trial is impossible because of the absence of these documents".
Mr Cosgrove I am afraid has been the author of his own misfortune in many respects for his cross-examination was consummate, detailed, very compelling and understandable to a Jury and he has brought all these matters to the Jury's attention, and no doubt will do so in a speech to the Jury, which will be a little longer than that which he has delivered to me, but it will be basically the same, and all I can say is that this in my view is not an abuse of process application that can possibly succeed and in those circumstances I rule against the short, succinct submission by Mr Cosgrove and I will wait upon his speech to the Jury with interest."
"JUDGE SCOTT: Mr. Cosgrove submits in this case that the counts involving [MG], Counts 1 and 2, are similar in virtually every respect, I think, to the Count 3 on the original Indictment against Mr. - Burt, is it?
MR. COSGROVE: Mr. Burke, your Honour.
JUDGE SCOTT: Burke. The Court of Appeal Criminal Division this week quashed this conviction - essentially as I understand it, at Paragraph 40 they quashed it because he was prevented from having a fair trial in the absence of crucial documents, and bearing in mind Mr. Kenneth's evidence about the Court hearing.
This case is factually in fact different from this one. There is an awful lot of evidence here which supports the Defence. They have been able to put forward an extremely good case before the Jury with the aid of the documents. There are a great deal more documents available in this case. It has already been to the Court of Appeal, the conviction quashed and been brought back because of some of the documents coming to light. All those documents are now available, such as they are, and I am still firmly of the view that if this Defendant is convicted, he will have received a fair trial.
And although documents are missing, a lot of documents are there, and I do not think that the Defence have been so prejudiced in this case that they cannot get a fair trial.
Mr. Cosgrove, in relation to MG, has been able to show, from the documentation, that the offence, if it occurred, must have occurred on the last Friday, or possibly the Saturday of August 1981. And even if the Defendant was off duty or on duty, it is a matter of agreement between the Defendant and the Crown that he had the keys available to him on or off duty, and he would have been able to visit the scene of this alleged crime at any time he wished to do.
And so I am quite satisfied about the case as it is at the moment, halfway through the Jury's consideration. I am obliged to Mr. Cosgrove for bringing it to my attention, but it has not changed my view of the case one iota, quite frankly. And factually, this case is a lot stronger than the case involving this Defendant who we have just considered, Mr. Burke. There is a great deal more evidence available to the Defence. And I say again, Mr. Cosgrove has made extremely good use of it in cross-examination, as will be noted in the way the case has been summed up - I hope noted, by the way I have summed it up to the Jury. This Defendant, in my view, has received a fair trial, whatever the verdict." (Underlining added)
i) The Appellant and MG were both present at the Home only during a specific and limited period, 1st-31st August 1980.
ii) The offences were shown to have been committed within a very narrow time frame on 29th or 30th August 1980.
iii) On the evidence of M.G the Appellant was on duty during the evening preceding the alleged offences.
iv) The particular circumstances of the termination of the Appellant's employment gave rise to a real possibility that he was on leave at the time of the offences.
v) It had been demonstrated by reference to other documents which survived (day books etc.) that the missing documents would have been likely to include information directly bearing on opportunity or the lack of it.
"What he [MG] was saying in general to a lot of these documents that were produced to him, and the details of which you have, is that they all speak actually of a gap where he is behaving himself and being all right, and then after - about a year or so, then he starts to be bullied. Which is a curious feature, says Mr. Cosgrove. But the other feature of these reports is that he does not agree at any time that he was enjoying his stay in St. Camilla's. He enjoyed aspects of it, like Mr. - I forget his name now, Mr. Peat and the welding course, and that sort of thing, and Mr. McHugh, the Irishman with a Scottish name. And what it actually means is this. That he was agreeing that "Whatever they say about me there, I can't dispute that it's there, but it wasn't actually accurate. I loathed it". So what it means presumably is that he was putting on a show for the staff in order to get good reports. At least that is an interpretation of it.
And going back to Mr. Martin, Mr. Martin being the person he felt betrayed by on his entry into St. Camilla's. But that did not last, and he agreed with one of the documents that were put to him that Mr. Martin took the view that he realised that it was good for him, and they were basically back being friends. He described Mr. Martin as "A very nice man", and he did not complain to him. He also put into the betrayal class with Mr. Martin, Mr. Caine for not taking his complaint seriously.
He said to Mr. Cosgrove - well, Mr. Cosgrove was putting this proposition. "Look, here you've got Mr. Martin, a man you say is a nice man, a man you could trust. Why not tell him about this terrible deed?" And basically what he said was this. "If I had told Mr. Martin the truth about what happened to me, it would have got back to the boys. And I was frightened to tell him, just in case he didn't believe me. Who would have believed me, a 14-year-old? I didn't want to try telling Mr. Martin. I wanted it out of my head in order to get out of St. Camilla's. I wish they had forensic now, and it would prove the case against the Defendant".
And he complained about the reports about which he was being asked, saying "Oh, it doesn't put in there that I tried to commit suicide five times, one of those times when I was at St. Camilla's"." (Underlining added)