England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3rd April 2014

1. LADY JUSTICE RAFFERTY: On 2nd March 2004 in the Crown Court sitting at Birmingham Mohammed Ibrar, now 32, was convicted of indecent assault contrary to section 14 of the Sexual Offences Act 1956 and on 26th April 2004 sentenced to a community punishment order of 100 hours. He did not apply for leave to appeal against conviction. He now appeals against conviction consequent upon a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, on the basis that significant material has come to light capable of undermining the credibility of the complainant. Those listening and reading should remind themselves of reporting restrictions attaching to cases such as this.
2. On 20th July 2003 MA, the complainant, and the Appellant (strangers to one another) were in a Birmingham shopping centre. The Crown's case was that the Appellant grabbed her arm and asked her to "wank him". She was to say that she later saw him again when he dropped his trousers and briefly masturbated in front of her. He was arrested. The Crown relied upon her evidence, her accounts to a security guard and to police and what it portrayed as lies by the Appellant in interview.
3. The defence was fabrication. The Appellant was of previous good character and skilled cross-examination at the court below exposed some internal inconsistencies in her account.
4. The issue for the jury was credibility, of the complainant and of the Appellant.
5. Her developed account was that a man grabbed her hand suddenly and said: "I want sex. Wank me." She said she walked away, got on with her shopping then went to a booth to have paragraphs taken. There, she said, she saw the man again, this time standing behind her. He made a gesture towards her and asked for a cigarette which she gave him. He asked her to light it. She gave him her own lighter and then, she said, took out his penis and was masturbating. She said that she remonstrated with him and walked away, reporting the matter to a security guard to whom she pointed out the Appellant who was arrested.
6. She described the man who had so offended her as ugly, trampy, between 40 and 42 and perhaps 5 foot 9. He had an Asian accent but spoke English. She had seen him around but did not know him. She conceded that she realised at the photographic booth that he was the man who had grabbed her arm she had not taken the opportunity to go elsewhere for her photographs. She explained having given him a cigarette as her being someone who let things go easily. She said she told police about the first incident and about the second. She said she immediately made plain that she wanted to press charges.
7. She denied that she herself had behaved offensively, giving the Appellant the "V" sign and calling him a "Paki".
8. The security officer and the police officers' account of what she had said to them was that she had been approached by an Asian male who said "wank me, wank me", took her arm, took out his penis and started to rub it and that she had then alerted security.
9. The gaps and inconsistencies in her account are apparent. An initial account to the security guard of Ibrar approaching her at the booth and saying "wank me, wank me", taking her by the arm, exposing himself and rubbing his penis, differed from that in her Achieving Best Evidence video in which she set out two separate incidents, one in the street and one at the booth. One argument is that she conflated the two, whereas her ABE suggested they were some half-an-hour apart.
10. She was cross-examined about why she had not mentioned to the security guard the first incident, why, when she met a friend later, she did not tell him about it and why, when she met a female friend yet later she did not mention it to her. The jury asked to be reminded of her initial account.
11. The Appellant told the jury that he spoke little English. He was in the town centre to have photographs taken for his passport and sat at in the booth eating before going off to buy more chips. The complainant approached him and explained that it did not work. She called him "Paki" and made an unpleasant two-fingered gesture. He asked her for a cigarette, she offered him her lighter. She seemed angry. He told her, in a light-hearted way, that she was ugly and he walked off. He had not exposed himself. He had not met her previously. He had done nothing to insult her.
12. The Grounds of Appeal are that fresh evidence has emerged as to the complaint of sexual conduct made by MA in 2006, such that it substantially affects her credibility. As a consequence this conviction can no longer be regarded as safe.
13. She made a complaint of indecent assault against LN in 2006. He said the sexual contact had been consensual. He told the police that after her initial allegation she had contacted him by telephone and tried to blackmail him. Police were established that she had contacted him using a mobile. A decision was made by the Crown Prosecution Service not to prosecute him.
14. Latterly provided is an extract from an electronic detention log dated as to that 25th August 2006 which where relevant reads:

"The CPS has reviewed the case and the decision is that there is insufficient evidence to obtain a successful conviction at court as the accused's version of events cannot be negated and the complainant has contacted the accused apparently making threats of blackmail. With this in mind the CPS state that the complainant is now unreliable."

That decision is said to be capable of undermining MA's credibility since the author must have concluded that she probably made a false allegation of a sexual nature in 2006.

15. The argument is that had this incident occurred after the 2006 complaint, his defence would been permitted to lead it, in reliance upon section section 100(1)(b)(i) Criminal Justice Act 2003 because the creditworthiness of a witness is a matter in issue in the proceedings.
16. Her credibility, it is said, was a central issue and therefore of substantial importance in the context of the case as a whole - section 100(1)(3)(ii). The circumstances of and the inferences that flowed from the 2006 complaint have substantial probative value in relation to those issues as likely to affect her standing in the eyes of the jury. Given the stark choice between the accounts of MA and the Appellant, matters which go only to a small erosion of credibility can carry substantial probative weight.
17. In our judgment, the fresh evidence relied upon is vague and tenuous. The inferences to be drawn from it are nowhere near sufficient to cast doubt on MA's credibility and thus to render the conviction unsafe.
18. The 2006 event was some two-and-a-half years after the incident foundsing this conviction. MA made an allegation of sexual assault against LN and a lawyer at the Crown Prosecution Service later decided not to charge him. It is true that a reading of the printout to which we have referred reveals that the telephone call with its allegation of attempted blackmail may well have played a part in that decision. Even if it did, we have no direct evidence from the member of the Crown Prosecution staff as to her reasoning and in any event the decision itself may have been a good one or a bad one. There is before us insufficient to allow us confidently to conclude the exact basis on which the decision was made. We repeat the words: "The accused version of events cannot be negated and the complainant has contacted apparently making threats of blackmail." There is no suggestion that apparent threats of blackmail were adequately investigated. If they were we do not know the results.
19. In any event we are not at all sure that evidence of the 2006 event was admissible. That would have been a question for the trial judge who would only have made it equipped with a good deal more information than this court has. He would have considered the fact that the allegations are very different. There was some two-and-a-half years between the two. The issue in this case was whether the incident happened at all. In so far as we know anything, the issue in the 2006 case was whether it were consensual.
20. Progress in this trial was plainly made exposing internal inconsistencies in the account of MA. Even though they were clearly ventilated the jury was confident enough to rely on the evidence of MA.
21. Consequently, grateful as we are to Mr Mills for his skilled and astutely focussed grounds, this appeal is dismissed.