Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 87

HCA/2014/5307/XC

Lord Justice Clerk

Lady Smith

Lady Clark of Calton

NOTE OF REASONS

issued by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPLICATION FOR PERMISSION TO APPEAL TO THE UNITED KINGDOM SUPREME COURT

by

JOHAR JAVEED MIRZA

Applicant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Applicant: Jackson QC; WSA

Respondent: Prentice QC AD; the Crown Agent

29 September 2015

The trial

[1]        On 4 November 2014, at the Sheriff Court in Glasgow, the applicant was found guilty of assault with intent to rape JT on 13 July 2010 in Kersland Lane in the West End of the city.  He was sentenced to three years imprisonment.  A previous trial had been aborted in June 2014.

[2]        The appellant was aged 29 at the time of the offence.  He was born in Pakistan, but brought up in the USA where he worked as a financial adviser.  In March 2010 he moved to Manchester to stay with his wife, whom he had married in late 2008.  Two months later he went to Glasgow and stayed with his sister and her husband.  He intended to develop a property business.  He began studying for a law degree at Strathclyde University, but meantime became the subject of extradition proceedings at the instance of the US authorities in respect of high value frauds, for which his brother had already received a lengthy prison sentence.  He remains subject to these proceedings.

[3]        The complainer was 21 at the time and a student at Glasgow University.  She was working in the gym during the vacation.  She lived in a flat in Byres Road.  On the evening of 12 July 2010, after she had finished work, she went with a female friend, who lived in Kersland Street, to a nightclub, namely Viper, in Great Western Road.  At about 1.45 or 2.00am she decided to walk home.  She bought chips with curry sauce on her way along Great Western Road.  CCTV images have her walking home at 2.06am.  She took a wrong turning into Cecil Street (instead of Kersland Street), realised her mistake and headed down Kersland Lane in order to get back on course.

[4]        A man turned in from the other end of the Lane.  He was pretending to have a phone conversation.  He crossed towards her and attacked her.  He pushed her to the ground, touching her dress, which was worn as a top.  Her chips flew out of her hands.  She was being punched, but retaliated and screamed.  The man ran off back towards Kersland Street.  She chased him as he made his way into Kersland Street, Vinicombe Street and Cranworth Lane.  She did not pursue him further, but called the police, describing her attacker as of Asian ethnic origin and wearing a beige T-shirt.  At about 4.20, she recognised a grey T-shirt as belonging to her attacker; which she also identified in court.  However, she failed to identify the applicant at a VIPER parade which was held more than a year after the event, in December 2011.

[5]        Meantime at about 2.25am, having been given a description of the man involved in the incident, a police officer saw the applicant crossing Byres Road, near the scene of what was undoubtedly proved as a crime.  He, and a colleague, turned their car round but the applicant had disappeared.  They searched nearby Ruthven Street and found him crouching between two cars, apparently trying to avoid detection.  He was detained.  He was wearing a vest, but had the T-shirt tucked into his trousers.  Both his trousers and his trainers were stained with what appeared to be curry sauce.  In due course, a mixed DNA profile was found on tapings of the shoulder area of the complainer’s dress.  The major profile was that of the complainer.  The minor profile was effectively that of the applicant.

[6]        A Honda Civic, for which the applicant had a key, was found in Kersland Street near the Lane.  CCTV images suggested that this car had been driven in the vicinity of the Lane at about 2.08am, which was about the time when the complainer was about to walk into it.

[7]        As the sheriff reports, the evidence of identification amounted to a powerful circumstantial case capable of identifying the appellant as the man who attacked the complainer.  This is perhaps an understatement.

[8]        The applicant gave a history of falling out with his brother-in-law, leaving the car parked at about 8.30pm, and, coincidentally, going to Viper at about midnight.  He had left at about 2.00am, heading towards his car.  He had walked along Great Western Road, University Avenue, Byres Road and into Ruthven Street, where he bent down to tie a shoe lace.  He gave an account of having an injury to his leg which prevented him from running fast.  He had not been in Kersland Lane and had never met the complainer.  The stains on his clothes were not curry sauce but probably paint.  Expert evidence was led concerning the applicant’s leg disability and the CCTV images of the car.

The appeal
[9]        In due course, the applicant lodged a Note of Appeal.  The first, lengthy, Ground A was that there had been defective representation in the preparation, and therefore presentation, of the applicant’s defence.  This included failures: to have the stains tested; to analyse the CCTV images of the car; to lead evidence of his leg disability; to investigate the DNA evidence; to have the applicant psychologically assessed about his sex drive; to lodge mobile phone records; to obtain transcripts from the earlier aborted trial to show discrepancies in the complainer’s accounts and to use the testimony of his brother-in-law about the stains; and to call the police officer whose evidence of the complainer’s identification of the applicant in a police car soon after the incident had caused the first trial to be aborted.  The officer could have given evidence about what the applicant had said to him. 

[10]      The second, short, ground B was that the applicant had been denied a fair trial because the Lord Advocate had “restrained” his funds.  These funds were very substantial and the applicant had wanted to use them to instruct senior counsel and to carry out further work along the lines indicated.

[11]      The sheriff commented that the applicant had had legal assistance from a number of able solicitors and counsel, whom he periodically dismissed as and when they failed to achieve his desired objective.  He had had legal aid throughout his trial until his new counsel asked for it to be withdrawn at a stage after conviction.  The court had eventually required to appoint a solicitor for the applicant in terms of section 288D of the Criminal Procedure (Scotland) Act 1995.  Ultimately, the sheriff described the applicant’s counsel’s work as “exemplary” and “skilful and persuasive”.

[12]      In his own report, counsel refers to the history of the case, involving 34 procedural hearings, six sets of solicitors and four counsel in the period March 2012 and June 2014.  He responds in detail to the sub-grounds of appeal, which complained about his handling of the case; all of the responses appearing convincing in their refutation of any defective representation.  He states that there was a consultation at which the issue of a potential scientific examination of the stains was raised.  Counsel had advised against this on the basis that the Crown had no such analysis and any defence move to examine them could reverse that advantage.  In relation to the identification of the applicant’s car in the CCTV images, the police evidence had been weak.  The defence had instructed, and adduced, Professor Jamieson on this, whereby the car seen in the images could have been one of a great many vehicles, albeit including the applicant’s.  At a consultation, the applicant had stated that he did not want the images further enhanced. 

[13]      The defence had led expert evidence, from Gordon Burrow, a chiropodist and podiatrist, of the applicant’s leg disability.  The investigations by the defence had not been supportive of the applicant’s contention that he could not have out run the complainer.  In relation to the DNA, the defence had instructed their own expert, Dr Bader, who had been satisfied with the Crown expert’s analysis and findings.  Counsel had not been made aware of any sexual dysfunction.  Consideration had been given to using the applicant’s mobile phone records, but these did not contradict the complainer’s version.  A decision not to use the records was made.  Counsel mentions that transcripts from the first trial had been available, although not that of the brother-in-law’s testimony.  An application by the Crown to use a witness statement covering certain matters from him was made.  It was not opposed, given the damage that the brother-in-law was capable of wreaking to the defence case, had he been traced.  The detaining police officer would not have testified to anything which might have benefitted the applicant.

[14]      On 10 April 2015 leave to appeal was refused by a judge of the High Court (the first sift).  In a detailed reasoned note, each defective representation sub heading was analysed and found wanting.  In relation to ground B, the judge commented that much of what any additional funds would have been spent on would have been of little utility or assistance, once the errors in the sub-grounds were appreciated.  On 4 June 2015 the court, having considered an opinion from senior counsel, also refused leave (the second sift).  The opinion supported ground B, asserting that the appellant’s “entire funds were restrained” and property inhibited.  The applicant’s application for release of funds had been opposed by the Lord Advocate and was refused.  However, on 29 April 2015 the “petition against” the applicant was dismissed at the instance of the Lord Advocate.  The opinion stated that counsel recognised that the Lord Advocate could “wear two hats”, one as head of the prosecution and one as agent for the Scottish Ministers in restraining funds.  It is stated in the opinion that the actings of the Lord Advocate, through the Civil Recovery Unit, was unnecessary and unjustifiable.

[15]      The court commented that the decisions which were taken in the preparation and presentation of the case were taken for considered and tactical reasons.  As a generality, the material presented did not amount to an arguable case that a miscarriage of justice had occurred.

The present application
[16]      The applicant now seeks leave to appeal to the United Kingdom Supreme Court on the basis that the sift judges had themselves determined a compatibility issue by refusing leave to appeal and had erred in that decision.  At the hearing, it was stated, for the first time, that a compatibility issue had been raised in the sheriff court process about the restraint of the applicant’s funds.  This had been on 13 June 2014.  The applicant had now obtained a report from an expert in the United States about DNA.  This had requested further information.

[17]      The Crown moved the court to refuse the application on the basis that it did not raise a matter of general public importance.

Enquiry
[18]      Upon enquiry, it transpires that the applicant did raise a compatibility issue in the sheriff court in May 2014.  On 13 June 2014, after sundry procedure, the minute was “refused” by a different sheriff from the one who eventually reported on the appeal.  Leave to appeal was refused by the sheriff at that stage.  The case called for trial on 17 June, when the applicant dismissed his legal representative.  The following day, the court appointed a solicitor in terms of section 288D of the 1995 Act.  On 25 June, “the case” was deserted by the sheriff ex proprio motu.  It was then re-indicted.  The compatibility issue was not re-raised.  That may be understandable, given the previous decision.  However, in the Note of Appeal there is no mention of this determination of a compatibility issue.  There is no ground of appeal directed towards it and hence no report from the sheriff who determined it.  The sift judges were unaware of any of this when they made their decision to refuse leave.

[19]      It also transpires that there were no restraint proceedings, and certainly none at the instance of the Lord Advocate.  There were two processes.  First, there was a petition by the Scottish Ministers (the enforcement authority for Scotland under the Proceeds of Crime Act 2002) to the Court of Session seeking a prohibitory order and warrant for inhibition and arrestment in terms of the 2002 Act in respect of five flats in Glasgow, one property in Saltcoats and significant funds (totalling over £260,000) in cash in the hands of law agents in England.  This cash was said to represent the proceeds of sale of properties in Stoke and Tring in England.  It was held in the name of Lima Properties Ltd, a company owned and controlled by the applicant.  The property and cash were, in effect, said to be the proceeds of mortgage and related frauds in Virginia.  A prohibitory order was granted in respect of the property and funds by the court (Lord Doherty) on 29 March 2012.

[20]      On 8 May 2013, the applicant moved the Court of Session to release £30,000 to enable him to instruct senior counsel and solicitors to conduct his defence in this (the criminal) process.  This was refused by the court (Lady Wise) on 15 May 2013, the opposition being based partly on the fact that the applicant had legal aid with sanction for counsel.  Leave to appeal was refused.  On 11 September 2013 the applicant moved the court to release £11,500 to pay his University fees and £4,168 per month to pay his living expenses.  This was opposed on the basis of lack of vouching and because the applicant had rental income from the properties.  The motion was dropped in favour of another motion to release, inter alia, £100,000 to fund his legal representation.  This was partly in relation to the criminal proceedings, and partly to fund three civil actions and the extradition case.  This was refused by the court (Lord McEwan) on 27 November 2013.  A further motion for release of funds for sundry purposes was lodged in May 2014.

[21]      Meantime, the Scottish Ministers lodged a separate petition in the Court of Session for a recovery order under the 2002 Act in respect of all the funds and property, other than the five Glasgow flats.  On 19 September 2014, this was granted by the court (Lord McEwan).  The applicant had tried to resist the application by attempting to represent Lima Properties Ltd, but he was not allowed to do so.  An associated reclaiming motion was refused (Lady Clark) as incompetent on 25 November 2014.  Thus the Scottish Ministers secured the cash and the Saltcoats property.  They subsequently moved to recall the prohibitory order affecting the Glasgow flats on the basis that there was insufficient equity in them to make the exercise worthwhile.  This was granted on 29 April 2015.

Decision
[22]      The first point is that, as a matter of fact, the Lord Advocate did not present any petition for a restraint order.  It was specifically the Scottish Ministers that applied for the prohibitory and recovery orders; albeit that the Civil Recovery Unit is based at Crown Office.  Secondly, the Lord Advocate did not, and cannot, “restrain” the applicant’s property nor prevent the court releasing funds simply by opposing a motion.  An order was made by the Court of Session and the court also declined the applicant’s periodic motions to release funds.  In these circumstances, there would appear to be no act of the Lord Advocate which might raise a compatibility issue in the form of a breach of Article 6.

[23]      Thirdly, if there were such a breach, it was incumbent upon the applicant either to raise the matter in his Note of Appeal as a challenge to the decision of the sheriff before the first trial (or to have raised it anew before the second trial).  As matters stood at sift, there was no indication that a compatibility issue had been raised and decided in the sheriff court.  This may explain why this application proceeds upon the basis that the sift judges had themselves decided a compatibility issue.

[24]      Fourthly, there is no vouching for the proposition that the prohibitory order captured the totality of the applicant’s assets.  Fifthly, in any event, the short point remains that, even if the applicant had had his funds available, it would have made no practical difference in terms of the efficacy of his defence.  He had legal aid and sanction for counsel.  He obtained sanction for sundry scientific, medical and other investigations.  He could have asked for further sanction to do other investigations if that had been advisable.  There is no basis in fact for the assertion that the existence of additional funds would have made any difference to the evidence led or the verdict returned and, in that regard, that any miscarriage of justice can be seen to have occurred.  The evidence against the applicant appears to have been overwhelming.

[25]      Leave to appeal is accordingly refused.  It may be worth adding that, notwithstanding Cadder v HM Advocate 2011 SC (UKSC) 13, it will only be in exceptional circumstances that the court will grant leave in a case where the court has already decided at first and second sifts that there are no arguable grounds of appeal which would have permitted the case to proceed to a hearing on its merits.