England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Birmingham Crown Court

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/03/2007

Lord Justice Moses :

Introduction

1. This appeal arises out of events which took place between Friday 7th December 1995 and Monday 10th December 1995. Although the appellant Mohamed Altaf was originally arrested in 1997, he was not rearrested until 2004. The appellant Khalid Ali was not arrested until 2004. The trial took place in April 2006 at Birmingham. During the course of that trial the judge ruled that the delay was unjustified and breached the second appellant's rights enshrined in Art. 6 of the European Convention on Human Rights. But he declined applications on behalf of both appellants to stay the trials on the grounds of abuse of process. The jury convicted the appellant Mohammed Altaf of two offences of false imprisonment and one offence of aiding and abetting rape but acquitted him of another offence of rape. They convicted Khalid Ali of one offence of rape. This appeal is primarily advanced on the ground that important documents have been destroyed during the period of unjustified delay and, accordingly, it was no longer possible to have a fair trial. Absent such documents, the verdicts are unsafe.

The Facts

2. The allegations concerned two friends, 'T' and 'S'; on Friday 7th December 1995 they met the appellant Altaf, known to them as Ajaz, and his friend Muqtar Hussain, known as Villar. At the time the two girls were 13½ years old. They met the two young men in Birmingham city centre and went with them to buy cannabis in Aston. They bought some alcohol and went to Muqtar Hussain's sister's house. The four spent the rest of the day and night of Friday together. It was not suggested that any sexual offence took place on that first day, the Friday, or that night.
3. The allegations which form the subject matter of the indictment against not just these two appellants, but also Altaf's brother, Mohammed Azam, arose out of events on the Saturday and Sunday. Although it is necessary to attempt some chronicle of the sequence of events it must be recorded that the accounts given by the two girls were confused and lacking in detail. This was not surprising since they alleged they were forced to drink alcohol, were driven to a number of addresses where they were sexually abused by different men and, whatever the truth of their allegations, by the time they were seen by their mothers and then the police, had been living "rough" for over two days.
4. No sexual misconduct took place during the course of Saturday. At some stage the girls were driven by a third man to a newsagents run by an elderly shopkeeper. Muqtar Hussain and the driver left. The girls were alone with the appellant Altaf and the shopkeeper until late in the evening. The shopkeeper made an unwanted sexual advance to the two girls. Eventually in the early hours of the morning he threw all three of them out.
5. The two girls alleged that they wanted Altaf to take them home. He said he wanted to wait for Muqtar Hussain. Two other Asian boys known as Bari and Imran joined the three and they went to a derelict flat, described by the girls as "horrible". We were told at the bar that that was 320 Aston Hall Road but we think it was somewhere else, 88 Trinity Road. There, eight Asian youths arrived and the complainant, T, drank a can of lager. The complainant T said that one Asian man called her into a bedroom and while another held her down removed her clothing. She was then raped by two of them. Up to that time, she had been a virgin. The medical evidence tended to support that fact.
6. The allegations of false imprisonment also arose out of the events at the derelict flat. T returned to a sitting room at those premises, after she had been raped by the two men, and told her friend S what had happened. Both of the girls tried to leave the house but S was pursued by two of the men and brought back. The appellant Altaf then left but told the others to keep the two girls in the house. It was this action which constituted the two offences of false imprisonment, the subject matter of counts 1 and 2 against him.
7. S said that after she had been told by her friend that she had been forced to have sex with one of the men, Altaf had pulled S into a passageway and another man took her into a bedroom. There he said he wanted oral sex. He then raped her and threatened to break her legs. She said she was too afraid to refuse. He said she then tried to run out of the house but Altaf and some of his friends blocked the door.
8. That same Saturday both girls were taken to 320 Aston Hall Road. S said she had asked the driver on numerous occasions to be allowed to go home but he ignored her. Altaf's brother, "Junior", and other men arrived. He pushed T onto a bed and held her down. When S tried to intervene Altaf held her back and told her it was nothing to do with her. It was this which led to the conviction of Altaf for aiding and abetting rape.
9. At some stage the girls were driven away from 320 Aston Hall Road. S alleged that she had been forced to perform oral sex on the driver. The girls drank more alcohol on their return to 320 Aston Hall Road. It was there that S said that the appellant Ali took her upstairs to a bedroom. He placed a chair against the door, forced her to suck his penis and raped her. This formed the subject matter of count 5.
10. On Monday 10th December, 1995 the girls were taken to the house of a man named George Williams at 168 Fentham Road. Two men forced T upstairs and raped her. She said she felt unable to resist and the drink was making her sick. S kept saying that they wanted to go home. T alleged that the appellant Altaf also took her upstairs and had intercourse with her. He was acquitted of that offence. The men began to throw books at the girls who, on pretending that they needed to use the lavatory, made good their escape from that house.
11. By this time the girls' mothers had reported them missing. The girls found a telephone box and S spoke to a friend and told her to let her mother know where they were. The mothers collected the girls in a taxi.
12. The circumstances in which the allegation of rape by a number of Asian men was first reported are important to the appellants' contention that a fair trial was no longer possible. We shall, accordingly, deal with the events after their mothers had collected their daughters, later. It is sufficient at this stage to recall that DNA was recovered from the girls' underclothes which led to the identification of both of these two appellants. Both gave evidence. Altaf, who had originally denied that he was known by the name Ajaz, accepted that was a name by which he was known. He agreed that he had sexual intercourse but asserted that it was with T's consent. He denied aiding and abetting anyone else to rape and said:-

"I was young and stupid. I have responsibilities now. I accept that I let them (the two girls) go with strange lads but that was stupid because the girls stopped trusting me. I lost my trust."

13. The appellant Ali was older. He admitted he had intercourse with S, although until he heard her giving evidence he could not remember. He described having sexual intercourse with her at George William's house but with her consent.

Effect of Delay

14. It is unnecessary to detail why the appellants were not prosecuted earlier. No criticism was made of the delay once they were charged in 2004. But the judge found that the delay until the re-arrest of the second appellant in 2004 could not be justified. For the purposes of this appeal it is the effect of that delay which is important. It was agreed that as a result of the delay a number of documents are no longer available. Their significance was in dispute but the fact that they had been destroyed as a result of the delay in prosecution was not a matter of controversy.
15. First, and foremost in the appellants' argument, was the admission that both S and T had, after they had complained to the police, made applications to the Criminal Injuries Compensation Authority, the "CICA". S's application still existed. But T's was no longer available. We were told, at the bar, although we have no transcript of evidence in relation to this, that at the time of S's application both girls remained friends.
16. S's application was false in significant respects. In the application to the CICA she alleged that Altaf, whom she called Ajaz, forced her to suck his penis and raped her. He attempted to have sex with her in what she described as "the back way". She said:-

"This went on every five minutes of the day and night with lots of different ones".

She accepted, in evidence, that that document was false. She accepted that Altaf had not raped her and her account of his behaviour was false.

17. No one could know whether T had falsified her account to the CICA. Delay had removed any opportunity for the defence to investigate whether S's friend had adopted the same approach, apart from cross-examining T about it. But there was no evidential basis for suggesting she had made a false statement to the CICA, other than the circumstance that the two girls were still friends at the time of the applications.
18. The effect of the delay did not stop there. The initial account of the girls was, obviously, of importance. The girls' mothers arrived and stayed with the girls until the police arrived. It was not suggested that either girl had complained of sexual abuse of any sort at that stage. All that S said, so far as her mother recalled, was to ask whether she was going to get into trouble. She was clearly frightened, so her mother said.
19. Two police officers arrived and spoke independently to the girls. But it does not appear that any allegation was made even at that stage. Whilst one of the police officers was speaking to T, S's mother spoke to her and asked whether anything had happened. At that stage S responded that she had been touched. S's mother then reported to the police with T present, that S said she had been sexually assaulted. The girls were then asked about allegations of sexual assault whilst they were together. It was accepted by both the police officers, WPC Yearsley and PC Poppet, that no such joint questioning should have taken place. There was opportunity for contamination. Both girls had been sleeping "rough". Both must have been anxious lest they should get into trouble. Neither made any complaint until specifically asked. One only complained after she had learnt that her friend had told her mother.
20. The delay did not affect the evidence as to the unsatisfactory initiation of the complaints. But the delay did lead to the destruction of the one of the officer's notebooks. It is true that PC Poppet's notebook still existed, but it was, as the judge described in his ruling, unhelpful, because all it said was:-

"At the house, [S] was detained against her will by Aktar and was raped by numerous Asian males at numerous locations over the time."

The officer was unable to explain why the note referred to Aktar and not Ajaz. The delay deprived the defence of the opportunity of seeing whether any greater clarification was contained in the other officer's notebook.

21. As we have recorded, the defence was consent. Although there were still photographs of the young girls taken at school, there was no longer any video evidence to show what they looked like at the time of these offences. That would have been of some assistance to the defence, since if they looked older than their 13½ years, that would have lent support to the assertion that these older men had had consensual sexual intercourse with the two girls.
22. Moreover, the girls' friend, to whom the initial telephone call was made, once traced by the defence, could no longer assist. The prosecution had made no attempt to trace her at all.
23. There was, however, evidence that shortly after the initial complaints, both girls were interviewed separately in recorded interviews. The defence did, accordingly, have a detailed account of what the girls were saying on the Monday, the very day they had, as they said, escaped from George Williams's flat. But we should note that S's account was more detailed than that of T, who had to be interviewed on a second occasion. Moreover, although the account may be said to be detailed, it was, as one would expect, vague as to detail and as to the sequence of events. Whatever the truth of the accounts given by the girls, drunk and distressed as they were after three days away from home, their accounts could hardly be expected to have any precise recollection.

The Judge's Ruling

24. The judge ruled at the close of the prosecution case. He was correct to do so following the advice of this court in R v Smolinski [2004] 2 Cr App R 40 p 661 at para 10 p 664. Although we are concerned with the safety of the verdicts rather than the correctness of the judge's ruling, the judge's reasoning is of significance in our scrutiny of the safety of the verdict. The judge noted, following Attorney General's Reference (No. 1 of 1990) [1992] 95 Crim. App. 296 and Smolinski, that imposition of a stay should be exceptional. He noted the absence of relevant documents and the inadequate procedure which opened the investigation. He recorded that there was no justification for the delay. He then turned to the effect of the delay and recited the warning as to the delay to be given to the jury. He noted in particular the detailed account the girls gave on the Monday they had escaped from the flat. He recalled that there were witnesses as to the demeanour of the girls at the time.
25. He then turned to the missing CICA claim and said:-

"One cannot lose sight of the fact that the claim that has been discovered is powerful evidence in the hands of the defence capable of seriously damaging the credibility of both girls in the context of this case. It is inconceivable, in my judgment, that a jury reading S's claim will not say, 'there is a real risk here that not one but both these girls are lying about what happened'."

26. The judge then referred to the scientific evidence which supported the girls' evidence that they were virgins and that they had been engaged in repeated sexual activity. He concluded that there was:-

"…clear evidence from the girls in this case which support each of the counts on this indictment, together with clear evidence in the scientific evidence put before the jury by agreement, which makes it plain that this is a case which must be decided by the jury rather than by me."

The Effect of Delay upon the Safety of the Verdict : General Principles

27. As we have already indicated, the question for this court is not whether the judge was correct to refuse to stay the proceedings, but rather whether the effect of the delay is such as to lead this court to the conclusion that the verdicts were unsafe. Often, there will be little, if any, difference between the question whether the judge ought to have stayed the case on the grounds of prejudice due to delay and whether this court takes the view, on those grounds, that the verdicts were unsafe. The coalescence of these two issues derives from the principle identified by a majority of the House of Lords in Attorney General's Reference (No. 2 of 2001) [2003] UKHL 68 [2004] 2 AC 72. A breach of the defendant's right to have a criminal charge determined within a reasonable time, contrary to article 6(1) of the Convention, will not necessarily require criminal proceedings to be stayed. It will only be appropriate to stay or dismiss proceedings if there can no longer be a fair hearing or it will otherwise be unfair to try the defendant (see Lord Bingham para 24 p 89). Once there has been a conviction, this court should only quash that conviction if the hearing has proved to be unfair, or it was unfair to try the defendant at all (see para 34 p 90).
28. We acknowledge that in cases where it was unfair to try the defendant at all, because of bad faith or executive manipulation, the verdict itself may not be unsafe. But in general, where this court concludes that a hearing was unfair, it will not be able to avoid the conclusion that the verdict was unsafe. No attempt, in the instant case, was made by the prosecution, rightly in our view, to contend that if the hearing was unfair, the verdict was safe. Safe verdicts depend upon a fair resolution of the issue of guilt or innocence. Attempts to draw a distinction between the fairness of the process and the safety of the verdict have, traditionally in this court, failed.
29. Attorney General's Reference (No. 2 of 2001) was concerned with the remedy for a breach of article 6(1) rather than the means a court might adopt to avoid unfairness in the prosecution of a delayed trial. The authorities are replete with examples of cases where evidence has been lost or destroyed but nevertheless this court has ruled that the trial judge was correct in refusing to stay the trial. This court has repeatedly emphasised that, during the course of a trial, there are processes, such as the power to exclude evidence under s.78 of the Police and Criminal Evidence Act, 1984, which may provide sufficient protection to a defendant against prejudice caused by delay. That is the second principle identified by Brooke LJ in R (Ebrahim v Feltham Magistrates Court [2001] 2 Cr App R 23 at para 74). In that case a video tape, which might have showed images inside a store, where an alleged assault was alleged to have taken place was no longer available. The loss of such a recording is not unusual in cases of delay. Loss or destruction of the video evidence did not lead to a stay in such cases as Medway [2000] Crim LR 415, Dobson [2001] EWCA Crim 1601 or in the other case decided by the Divisional Court at the same time as Ebrahim (Mouat v DPP). The mere fact that missing material might have assisted the defence will not necessarily lead to a stay.
30. But in considering such powers to alleviate prejudice, Brooke LJ (at para 27) emphasised the need for sufficiently credible evidence, apart from the missing evidence, leaving the defence to exploit the gaps left by the missing evidence. The rationale for refusing a stay is the existence of credible evidence, itself untainted by what has gone missing.
31. In the instant appeals, the missing evidence and the evidence which the jury had to believe cannot be distinguished in that way. That which was missing, T's application to the CICA, was part of the material by which her credibility could be assessed.
32. There is another important feature of the protection afforded to defendants in such cases. Prevention of prejudice to the defendants depends upon careful and accurate warnings by the judge as to the consequences of delay. Unless the available safeguards in the trial process are carefully deployed, then the prejudice flowing from delay and loss of evidence will not be alleviated. There will, however, be cases where a defence can establish, on the balance of probabilities, that the prejudice flowing from a failure by the authorities to prosecute a matter with the diligence required by article 6 cannot be cured and a fair trial is no longer possible. In such a case, if the judge has nonetheless refused to stay a prosecution then that unfairness is likely to affect the safety of a verdict.

Conclusions as the Safety of the Verdict

33. We have come to the conclusion that in this case, by reason of the delay, these appellants could not be fairly tried and, in consequence, the verdicts reached against them were unsafe. Our reasons for that conclusion do not rest upon the loss of any one item of evidence but the cumulative effect of missing evidence, coupled with the directions the judge gave to the jury which, in our view, adversely affects the safety of the verdicts.
34. Firstly, there is the loss of the application made by T to the CICA. It was, of course, a matter of speculation as to whether it was consistent with the account T gave, both at the time when being interviewed on video by the police and, subsequently, to the court. For all anyone knew, that application was wholly consistent with T's account. But the fact that S's account was untrue and exaggerated is relevant. Both girls were still friends, living near to each other, so we were told. It is unlikely that they did not discuss their applications to the CICA. The judge himself, in giving his ruling, recognised that the jury would accept there was a real risk that both the girls were lying about, as he put it, "what happened". Indeed, the judge thought it was inconceivable that the jury would take any contrary view. We take the view that the judge may have been putting it too high at the stage of the ruling. It was likely that the jury would accept such a risk but not inconceivable that they would not. Indeed, if the judge really meant that the jury was bound to accept that there was a real risk that both girls were lying in general about their account of the events it is difficult to see why he did not stop the case. He did not stop the case for the reason we have already identified, namely, that the jury was in a position to judge the accounts they gave in evidence against the original complaints they made on video interview.
35. The remarks made by the judge in his ruling were not expressed in the same way in his summing-up.
36. In the course of the summing up the judge gave a correct and conventional warning as to the consequences of the delay in relation to these two appellants. He noted the absence of T's application for compensation and continued:-

"That does not entitle you to speculate, as I say, about the missing material and the missing witnesses. You are not entitled to say 'well, we find as a fact that in that document it would have said this'. But if you decide that the defendant is suffering a real disadvantage because he is not able to look and see what it says in that document, put that into the equation in the defendant's favour when deciding that the prosecution have made you sure of his guilt.

For example, we do not know what was in T's application to the CICA. If it contained lies, like S's did, the defendants have been disadvantaged by its loss. Although you must not speculate as to the detail that it contained, if you think that is a disadvantage to the defendants you must bear that in mind, as I say, when considering whether the prosecution have made you sure of guilt. This is a very important matter for you to consider and you must have it in the forefront of your minds throughout your consideration of the evidence when deciding how you find it."

37. We have little doubt that in this passage the judge was attempting to assist the appellants and mitigate any prejudice caused by T's missing document. But, equally, we have to say that it is unlikely to have left the jury with any clear guidance as to how they were to approach the missing application to the CICA. The jury was told not to speculate. That direction must have meant that they were not to speculate as to whether T's application was truthful or not. But if that is correct, how could the jury reach a conclusion as to whether the defendants were or were not disadvantaged? The judge seemed to be leaving to the jury the question whether the absence of the document caused the appellants a disadvantage. But at the same time he was directing the jury not to make any assumption that it did. The jury was enjoined not to speculate as to whether it contained a falsehood but if they were to be loyal to that injunction, then it is difficult to see how they could have used the absence of the document in any way favourable to the defendants.
38. To our mind, that passage demonstrates the very real difficulty in which the judge, the jury and the appellants were placed by the loss of that document. The prejudice caused by such a loss could only have been cured, in our view, by directing the jury to assume that T's application was as mendacious as that of S. Indeed, it appears to us that that is what the judge was concluding when he gave his ruling earlier. But so to direct the jury would have been to invite them to speculate as to its contents and might have been unfair to T. It is the combination of the absence of the document and the way the jury was directed that gives us grave cause for concern as to the safety of the verdicts.
39. In the instant appeal there was no credible evidence which could be distinguished from the missing material. T's credibility depended, in part, upon the reliability of her account to the CICA. The mere fact that S's account had proved to be false did not establish that T's was similarly untrue, but it does cause us concern, as it seems to have done to the judge at the time of the ruling.
40. Those considerations, of themselves, might have not have led us to allow these appeals. But they do not stand on their own. They must be considered in the context of the absence, due to delay, of any clear evidence as to how the complaints came to be made at first. As the judge recorded, there was no evidence of the first account given by the girls on the telephone. Nor was there available any police pocket notebook other than the exiguous note from one of the officers. It is true that both girls gave a full account on the same Monday they had escaped. But at least some of the material relevant to an accurate assessment of what happened at first had gone missing. Moreover, although it was true that the girls gave a detailed, if confused, account on the Monday, the original complaint was made by S in the presence of T. It would not have taken much alteration or contamination to turn a confused account of what had happened to them, during those three days, from one in which a number of sexual acts took place with consent, to an account in which they were raped and abused. As the judge put it in his directions to the jury:-

"Do you think that it is the case, or may be the case, that these girls were entering into sexual intercourse with these three men and because it all went wrong, because they were frightened of being away from home, and perhaps because of other sexual acts that took place which these defendants are unaware of, they are now crying rape?"

41. There was, of course, other material which had gone missing, particularly relating to the appearance of the girls at the time. This, as the judge recorded, could no longer be traced. In evidence, the witnesses, when cross-examined, frequently said they could not remember.
42. It is, however, important to set against that prejudice the striking fact that the jury believed the two girls and rejected the defence of consent. In particular, the jury believed the evidence of S, notwithstanding her false application. There was some support for their evidence contained in the results of their medical examination. As we have already recalled, that tended to establish not only that they were virgins before those three days but also that penetrative sexual intercourse had occurred, certainly in the case of T, on frequent occasions during that period.
43. The difficulty with reliance upon the jury's conclusion as to S's credibility is that, in the light of the judge's directions as to T's missing application, the jury might well have used T's evidence as support for S's complaints.
44. Mr Nicholas Cooke QC, on behalf of Altaf, also sought to rely upon what he contended to be inconsistent verdicts. He relied upon the acquittal of the other defendant Azam and the disagreement of the jury in respect of Altaf for rape of T. There might have been force in such submissions if anyone could be confident as to the time when T had, possibly, consensual sex with Azam. Nothing can be gleaned as to the jury's view in relation to Altaf since it disagreed. But if the jury had doubts as to whether Azam raped T and that the sexual activity followed earlier rapes, we can see how the jury's approach might have given cause for concern. But as Mr P Cooke, on behalf of the prosecution, successfully demonstrated, there could be no confidence as to the sequence of events. For all anyone could say, the occasions of possible consensual sex might have taken place before any of the alleged rapes. In those circumstances we do not rely upon the verdicts or disagreements of the jury as supporting this appeal.
45. But we have come to the conclusion that the loss of material evidence combined with unsatisfactory evidence as to how the complaints were first made, cause doubt as to the safety of the verdicts. We think this is a rare case where the prejudice flowing from that loss of evidence was not cured by any direction given by the judge. Indeed the directions of the judge highlight the difficulties as to the fairness of the procedure caused by the loss of the evidence.
46. Counsel on behalf of the appellant Ali relied upon other grounds which, in the view that we have taken, do not assist and with which, therefore, we need not deal.
47. We wish to emphasise that this is a rare case where prejudice following from the delay was not alleviated and probably could never have been cured during the course of the trial. We wish to emphasise, before finishing with this appeal, that these appellants are not the only ones who have suffered by reason of the delay. The delay could not be laid at the door of these two young girls who appear to have lost their virginity in what were, on any view, appalling circumstances. They were as much entitled to a fair trial as the appellants. But they were deprived of that by the conduct of the prosecution. Our conclusion, that a fair trial was not possible, and therefore the verdicts were unsafe, must not be seen as any reflection whatever on their credibility. It is simply not possible for us to say whether, had a trial taken place in due time, they would have been believed or not. But, for the reasons we have given, which flow from the loss of material evidence, we allow these appeals and quash all the verdicts of guilt against these two appellants, namely on counts 1, 2 and 4 against Altaf and count 5 against Ali.