England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
FIELD J.
T20067555

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/11/2010

LORD JUSTICE HOOPER :

1. At the conclusion of the hearing we announced our decision that leave to appeal conviction was refused. We now give our reasons, which, given that this is an application, will be brief.
2. On 13 December 2006 the applicant, together with his co-defendant, Nabeel Ahmed, was convicted of attempted murder and possession of a firearm with intent to endanger life. The next day the applicant was sentenced to life imprisonment, with a minimum period of 10 years.
3. It was the prosecution's case, which the jury must have accepted, that on 12 June 2006 the applicant shot Sajid Mahmood at close quarters through the open front passenger window of a Saab car, injuring Mahmood in the left side of his chest and arm. The shooting was, on the prosecution's case developed at trial, a "revenge" shooting.
4. The appellant's case was that he was not present. He gave and called evidence to support an alibi, an alibi which the jury must have decided was concocted. The co-defendant admitted that he was in the car. He admitted that he was there in the car and claimed that he had taken hold of the gun to disarm one of a group of men who had attacked him and accidentally discharged it four times. He gave evidence that the applicant was not there.
5. The principal evidence identifying the applicant as the man who shot Mahmood came from Mahmood himself and three brothers: Wakas Ahmed, Iftikhar Ahmed and Mohammed Khizar. Mahmood had previous convictions as did the three brothers. They were also, we were told, believed to be involved in the drug trade.
6. On 6^th March 2007 Mohammed Khizar signed a "retraction statement" witnessed by Renee Bassi of Bassi Solicitors (who has since died). The statement was forwarded to the applicant's then solicitors almost immediately.
7. The current solicitors for the applicant, in possession of the retraction statement, applied for leave to appeal the conviction, seeking to rely on the retraction statement as fresh evidence. Unable to locate Mohammed Khizar, another division of this Court presided over by me, ordered him to attend the Court on 21 January. He attended and we asked him to speak to Miss Thompson, the applicant's solicitor. After speaking to her he made a statement which stated:

When I made this [retraction] statement I was told by my parents that I was to do so as my brothers, Wakas Ahmed and Iftikhar Ahmed had been arrested in Pakistan for attempted murder. I was told that the complainants were family of Amjad Ali and that they would have the charges dropped against my brothers if I made the retraction statement, so I did.

8. He made it clear that the retraction statement was false and that the evidence which he had given at trial was true.
9. Following this dramatic "revelation", the Court asked for the matter to be investigated.
10. It turned out that Mohammed Khizar's brothers had been arrested on 1 March 2007 in Pakistan in connection with the alleged attempted murder on 28 February 2007 of a brother of the applicant, Abdul Mohammed and his friend, Atif Afzal. The complaint of attempted murder was made by Abdul Mohammed and Atif Azal at a police station in Gujuarkhan district about 45 minutes by road from Rawalpindi. The only documentary evidence relating to the arrest was what appeared to be a, or part of a, contemporaneous FIR written in Urdu recording a complaint from Abdul Mohammed. A copy of the document was handed to the police during the investigation by Iftikhar Ahmed, who had been given it by the police at the time of his arrest.
11. Mr Raggatt QC questioned the authenticity of the copy, in particular, because the complaint as recorded by the police officer differed in some material respects from the account of the events given to us by Abdul Mohammed and Atif Azal. Mohammed explained the discrepancies by saying that he did not speak Urdu and that he made his complaint in English which must have then been wrongly translated. That account was completely contradicted by Azal, who said that the two of them had both spoken largely in Urdu and that the officer had read back what he was writing and that they were content that what he read back was accurate. Against the background of this evidence, the authenticity of the document was challenged. We see no merit in that challenge. It is inconceivable that the brothers would have invented a document which largely reflected the incident as described by Mohammed and Afzal but contained discrepancies in the account first revealed much later.
12. On 15^th February 2007 Iftikhar and Wakas Ahmed travelled to Pakistan followed by Abdul Majid, another of the applicant's brothers and Abdul Mohammed on about 24th February 2007. Abdul Majid had only booked his ticket the week before. On Abdul Mohammed's account, within about 24 hours of their arrival, there had been an incident involving Wakas and Iftikhar (the account of which given in evidence to us was materially different to the account in the FIR) followed by the attempted murder on 28 February. As to the account of the attempted murder there were significant differences between the accounts given by Mohammed and Afzal (e.g. Mohammed had the attackers' car blocking his vehicle when 200 yards away whereas Azal had the attackers a few yards away and their descriptions of what then happened differed materially). Their accounts differed in material respects with the FIR. Their accounts of total disinterest in what happened after the arrests were not credible.
13. We accept that Mohammed Khizar did not make an ideal witness when describing the events surrounding the making of the statement on March 7. In evidence he said that he made the statement because he understood from his uncle and/or father that unless he signed the statement (which as we have said was immediately forwarded to the applicant's then solicitors) his brothers would not be released. It seems clear that they had been released on bail after about two days, e.g. by about 2^nd March. But it also seems clear that the charges had not been dropped and that they did not leave the country until March 15. In his first account of these events to Miss Thompson he had said that he made the retraction statement to have the charges dropped. It seems to us extremely unlikely that the two brothers facing charges of attempted murder would have been allowed to leave the country unless Abdul Mohammed and/or Abdul Majid had in some way permitted that to happen.
14. Mr Raggatt's cross-examination of Mohammed Khizar produced a confusing picture from the witness about how the statement came to be in the form in which he signed it. The statement was clearly drafted by a lawyer and has a number of similarities with a document MK/1 which Khizar (it appears) had with him on January 21. Notwithstanding the answers given by the witness, it seems clear to us that MK/1 was a draft produced not by a lawyer and probably made available to the solicitor probably by Mohammed Khizar.
15. Whatever the shortcomings of Khizar as a witness, it is the chronology which is so striking. The recantation statement is made by Khizar just under two months after the conviction of the applicant (with a copy sent to the applicant's solicitors) and a few days after his brothers had been arrested for attempted murder in Pakistan. It is inconceivable that it was a mere coincidence that the retraction statement was made at that time.
16. Furthermore nobody on the applicant's behalf informed the UK police that the incident in Pakistan had taken place. Majid maintained that he did not regard the incident as relevant. If the shooting incident in Pakistan had been genuine it was central to the reliability of the evidence of those brothers and the case against the applicant generally. The applicant, and his associates, have made strenuous efforts to bring material, which they claim undermines the respondent's case, to the court's attention but notably failed to mention the Pakistan incident at any stage. A genuine complaint would have been reported to the UK police as soon as reasonably practicable and certainly would have been contained in written submissions to this court.
17. We have no doubt that the incident described by Mohammed and Afzal never happened and that a false complaint was made with the connivance of Abdul Majid in order to be able to put pressure on the family of the three brothers so that at least one of the three would "recant".
18. We approach the other evidence called by the appellant with that in mind.
19. Abdul Majid gave evidence on 21^st October 2010. He asserted that he had been present at a meeting in 2007 with Khizar and senior members of his (Khizar's) family, a meeting which Khizar denied had happened. During that meeting, according to Majid, Khizar had reiterated that his evidence at the trial in 2006 had been false. Majid maintained that he had played no part in seeking to persuade Khizar to retract his evidence – he did, however, acknowledge that he had contacted Khizar's family on a number of occasions after the alleged meeting in order to establish whether he intended to retract his evidence.
20. We do not find that evidence capable of belief for a number of reasons and we find that Khizar's evidence that no such meeting took place credible:

Majid had been involved in the organising of false evidence on his brother's behalf at his trial in November/December 2006. (see summing up @p99 – 108).

Although Majid maintained that his presence in Pakistan was a coincidence and he had nothing to do with the arrest of Wakas and Iftikhar Ahmed, it seems clear to us from the timing that he was involved in the making of a false allegation of attempted murder against the two brothers (the brothers assert that Majid was, in fact, the orchestrator of their arrests and was present at the police station in Pakistan during their time in custody, but we did not hear from them).

Majid claimed to have known nothing of the retraction statement by Khizar until 2010 and the initial hearing in January 2010. That contention by Majid is contrary to both common sense and his own admissions in a police interview on 25^th May 2010 (see respondent's bundle @p161).

Majid has a considerable criminal record which includes the supply of class A drugs.

21. In order to support the suggestion that the retraction of Khizar's statement was genuine the applicant sought also to rely upon the evidence of Ashley Horton. The basic contention in Horton's case was that he was a witness with a measure of independence and was, therefore, capable of belief. Horton stated that he had inadvertently overheard a conversation between two men, he knew from the area, as Sallah and Kijji. The conversation was alleged to have taken place in the public bar of the Portland Hotel, Edgbaston. Horton claimed to have heard Kijji (Khizar) admit that he had lied at court by giving false evidence against Ammo (the applicant). Khizar denied this. Horton's evidence to the court was that the conversation took place within the earshot of a number of members of the public. Horton claimed that having overheard the conversation he decided that he should make an effort to pass the information on to the applicant. Horton said that he only had one Asian friend, "Tocks" to whom he thought he could report the matter and he simply waited until he "ran into him". Thereafter "Tocks" supplied the information to a relative/friend of the applicant's called "Shade" (who was apparently present at the Court of Appeal hearing on 21^st/ 22^nd October 2010). "Shade" provided the applicant's contact details and Horton claimed to have then written to the applicant to provide him with the information he had ascertained at the Portland Hotel.
22. The applicant provided a copy of the original letter in order to substantiate the claim and a statement was taken from Horton by the present instructing solicitors. It is worthy of note that the letter sent to the applicant was not sent until 22^nd June 2008 i.e 5 – 6 weeks after the alleged receipt of the information.
23. Horton stated in his original statement, and reiterated before the Court, that he did not converse with either man in the Portland Hotel and would have no reason to do so. That account is in marked contrast to the account provided by Horton to the applicant in the letter, which was before the court, in which he describes talking to Sallah for approximately 10 minutes before Kijji's arrival at the premises. Thereafter he recalled Kijji being called over by Sallah and listening to the conversation at close quarters. The witness was unable to provide an explanation for the apparent discrepancies. Horton denied prior knowledge of the shooting incident despite living within a few hundred metres of Paignton Road at the time of the shooting, and since. The matter was not reported to the police by him.
24. The evidence of Horton is, in our view, incapable of belief and just another "overt act" in a conspiracy to pervert the course of justice.
25. Mr Raggatt, faced by evidentiary obstacles which even his forensic skills could not surmount, changed his tack at the end of the third day's hearing. His primary submission now was that Khizar had made such a bad witness that the conviction was unsafe because it was based to a significant extent on the evidence of Khizar. We do not accept that. Khizar may have been an inaccurate witness when describing precisely how the retraction statement came into existence, but we have no doubt that he was telling the truth about making the statement under duress. At the trial it was Khizar's credibility that was in issue. The evidence which we have heard does not undermine his credibility.
26. The applicant initially sought to rely upon the evidence of Zulfiqar Munsaf in order to support the contention that Sajid Mahmood had lied at the Crown Court hearing. Munsaf asserted, in a statement to the applicant's instructed solicitors, that he had had a conversation with Mahmood whilst he was recuperating in hospital. At the hearing on 22^nd October 2010 Mr Raggatt told us that Munsaf would not be called. He explained that it was not necessary to call him because there was now no dispute that Mahmood and Munsaf had spoken at the hospital. We do not accept this explanation.
27. Munsaf was "abandoned" because his evidence was in direct contradiction to the evidence which Mahmood was now giving before us, namely that he never saw the face of the gunman. Munsaf had said in his statement that Mahmood informed him at the hospital that "Dodi" (i.e the co-defendant, Nabeel Ahmed) had discharged the gun at him (in accordance with the evidence of Ahmed at the trial, albeit that the discharge was accidental).
28. The respondent submits that the discrepancy highlighted above is entirely consistent with the evidence of Munsaf being fabricated and is inexplicable on any other basis. We agree.
29. The circumstances of Munsaf's evidence coming to light are equally consistent with fabrication. Munsaf asserted that he had spoken to the applicant on the date of his sentence (16^th December 2006) whilst both men were in custody. Munsaf further contended that he had not come forward previously because he was unaware of the suggestion that Mahmood had been shot by the applicant – that explanation is simply not tenable in the context of this case. The facts of the case were well known within the local community and that would have been particularly so for somebody who was an associate of the victim, Mahmood, and knew the applicant.
30. We turn finally to the evidence of Sajid Mahmood, the victim of the shooting. He had also made a "retraction statement" on 7^th May 2010 to a solicitor, Mr Omar Ghanti, who was also called as a witness. Sajid Mahmood told us that he had wanted to clear his conscience, after a discussion with his father, and that is what had caused him to make a retraction statement. The effect of the retraction statement was that his two original statements of 12^th and 14^th June 2006 were true and that (although he did not explicitly say this in either statement) he had never in fact seen the face of the gunman. The 14 June statement which Mahmood told us was true included a considerable amount of evidence which placed the applicant in the car at the time of the shooting (contrary to his "alibi").
31. His assertion that he did not see the face of the gunman was contrary to a very short statement of 15 June 2006 in which he identified the applicant as the gunman following a video identification procedure. It was contrary to a statement of 28 September 2006 in which he explained that fear had prevented him from identifying the applicant as the gunman in the 14^th June statement. It was contrary to his evidence at trial. It was contrary to a police interview on 10 February 2010 (during the course of the investigation requested by this Court in January 1010) in which he said that he was being asked to change his evidence by the brother of a friend of the applicant and in which he expressed his considerable fear of the applicant's family and as to what they might do either here or in Pakistan. It was also contrary to a statement of 3 March 2010, made following the interview.
32. Given the obvious importance of the 15 June 2006 statement we heard evidence from the officer in charge of the video identification procedure and the officer who took the statement immediately after the end of the procedure, neither of whom had any involvement in the investigation. Mahmood was the first witness at the procedure (followed by the three brothers) and was asked a very general question about whether he could identify anyone who was involved in the incident on 12 June when shots were fired from a Saab. He identified number 7, the applicant, a person whom he did know in any event. He was then asked to make a statement by the second officer, PC Brooke. This was, she told, us the first time that she had been asked to help with an identification procedure in this way. She had a form which was in section 9 form and had printed upon it "I identified the person at position number .... who I stated". She filled in "7" and then wrote "had shot at me with a gun through the window from a Saab car". It is clear that these were the words used by the applicant, if, for no other reason, than that each witness used different words when responding to the question (albeit to the same effect that the applicant was the gunman).
33. Sajid Mahmood sought to explain the positive identification of the applicant he provided on 15^th June 2006. Mahmood told us that he had been told which individual to pick out at the identification procedure by witnesses who had already viewed the parade. This cannot be right because, as we discovered, he was the first witness to attend at the procedure and could not have been told anything by a preceding witness and, in any event, Mahmood would not need to be provided with the details/identification of the applicant as they had been known to each other for a number of years.
34. Mr Raggatt raised an argument not raised at trial that Mahmood should not have been asked to attend the video identification procedure because he had not said in the 14 June statement that he could identify the gunman. We see no merit in that submission, particularly given the very general question he was asked by the officer in charge of the procedure.
35. There still leaves the possibility that Mahmood had only identified the applicant at the parade and thereafter because he had been told by the brothers that the gunman was the applicant. But that matter was fully explored before the jury.
36. We do not find the May 7 2010 retraction statement capable of belief.
37. For these reasons we dismiss the application for leave to appeal.
38. On the evidence which we have heard (and we have not heard all the evidence) it seems to us that the applicant and members of his family have conspired to pervert the course of justice in this Court. A great deal of the time of this court and a great deal of taxpayer's money has been wasted. If any of that money could be recovered from the applicant or any other person, then the respondent should invite us to make any appropriate order.