Hussain & Ors v R. [2010] EWCA Crim 1327

[2010] EWCA Crim 1327Case No 200902336D2/200902335D2/200902333D2
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HHJ GULLICK
T20087130/T20087097
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/06/2010
Before
LORD JUSTICE PITCHFORDMRS JUSTICE RAFFERTYHHJ GOLDSTONE QC
Between
ASHIQ HUSSAIN, MOHAMMED KAMRAN & MOHAMMED SHABRANAppellantsReginaRespondent
Mr Malcolm Bishop QC and Charnjit Singh Jutla (instructed by Javid Arshad & Co - Solicitors) for Appellant HussainMr James Hill QC (instructed by Javid Arshad & Co - Solicitors) for Appellant KamranMr David Nathan QC and Shufqat Mahmood Khan (instructed by Altaf - Solicitors) for Appellant ShabranMr Andrew Kershaw (instructed by CPS - Bradford) for RespondentHearing Hearing date: 19th May 2010
Judgment
[1]Ashiq Hussain (‘Ashiq’) appeals his conviction with the leave of the single judge. Mohammed Shabran (‘Shabran’) and Mohammed Kamran (‘Kamran’) renew their applications for an extension of time for leave to appeal against their convictions. We granted the extension of time and leave to appeal and proceeded to hear their appeals.[2]The appellants, with others, appeared at Bradford Crown Court on 22January 2009 for trial upon an indictment containing five counts. Count 1 charged them that between 22 and 25 October 2007 they conspired to commit murder. Count 3, in the alternative, charged them with conspiracy to cause grievous bodily harm with intent. Count 2 charged Mohammed Shabran and Mohammed Kamran with having a firearm with intent to commit murder. Count 4, in the alternative, charged them with having a firearm with intent to cause grievous bodily harm with intent. Count 5 charged Ashiq, Shabran and Kamran with conspiracy to pervert the course of justice.[3]Following a trial before HHJ Gullick, the Recorder of Bradford, and a jury which lasted some ten weeks, on 3 April 2006 Ashiq was convicted unanimously by eleven remaining jurors upon count 3. Shabran and Kamran were unanimously convicted of counts 3 and 4. Each of them was found not guilty upon counts 1, 2 and 5.[4]These convictions arose from serious incidents of violence in Bishop Street, Bradford on 23 and 24 October 2007. Two families had fallen out, probably over the failed marriage between Shabran and a female member of the complainants’ family.[5]Ashiq was the owner of a hand car wash company called Motorwise, with premises at Toller Lane, Bradford. Shabran and Kamran are his nephews. They worked for Motorwise as did Ibrar Hussain, Ashiq’s younger brother, and Amar Hussain, a friend of Shabran. Nazim Hussain, a taxi driver, lived at the same address as Shabran.[6]Ibrar Hussain, Amar Hussain and Nazim Hussain were found not guilty of counts 1 and 3 upon the direction of the judge at the close of the prosecution case. Ibrar Hussain was also found not guilty on the judges’ direction of count 5. During the course of his summing up the judge directed a verdict of not guilty in relation to Nazim Hussain upon count 5 and he was discharged. The jury returned a not guilty verdict upon count 5 in the case of Amar Hussain. Ashiq, Shabran and Kamran were each sentenced to 12 years imprisonment.[7]Turning to the complainants’ family, Abid Hussain owned a taxi firm called Fast Cars at Stanningley Road, Pudsey. Shafique Hussain is his son. Abid has three brothers, Sajid Hussain, Mohammed Razaq and Adalat Hussain.[8]The appellants’ family lived or worked in the Bingley Road area of Bradford. The complainants lived in the Bishop Street area. These districts were both situated in the north west of Bradford but separated by the suburb of Heaton.[9]The prosecution case was that at about 10 pm on 23 October 2007 a confrontation occurred between two groups at the BP petrol station on Howarth Road, also in the north west of Bradford, not far from Motorwise. Shamran, Amar and Ansar Hussain arrived in a Volkswagen Golf. Shafique Hussain, Zakar Khan and a friend, Jameel Sodhigar, were in Shafique’s father’s blue Mercedes. Threats were exchanged. It was the prosecution case that Shabran threatened to shoot Shafique and that CCTV evidence showed him making a gesture with two fingers to indicate a pistol or other hand gun aimed in Shafique’s direction. It was further alleged that Shabran telephoned his brother Kamran in the presence of the others, telling him to shoot the blue Mercedes next time he saw it. At 10.12 pm Shabran telephoned his uncle Ashiq. Cell site evidence placed Ashiq in the Keighley area. He returned to Bradford.[10]Shafique returned to his father’s taxi base in Stanningley Road, Pudsey. He spoke to Abid and then returned with Zakar Khan and Jameel Sodhigar to Bishop Street, where he lived. On their way, Shafique and Zakar Khan saw a waiting party with vehicles stationary on North Park Road. Ashiq Hussain, with his distinctive red Mercedes car, was among them. Jameel Sodhigar had supported this account in his witness statement but resiled from it in evidence. The prosecution was given leave to treat him as hostile.[11]According to Shafique, he was followed to Bishop Street by Ashiq and his followers. On arrival, Shafique, Zakar Khan and Jameel ran into the house. By now, other members of the complainants’ faction were in Bishop Street. Shortly afterwards, Ashiq’s red Mercedes, was attacked by unknown members of the appellants’ faction and set on fire. There was evidence that the driver of the red Mercedes was also attacked but managed to make his escape. There was a live issue at trial whether the driver of the red Mercedes was Ashiq. Ashiq claimed that he was not driving the car. There was evidence from defence witnesses that the driver was a chubby, bald man which did not match Ashiq’s description. He maintained that the driver must have been a friend of his called Saj, who had disappeared and from whom he had never heard again. The prosecution contended that Saj was a convenient invention. Mohammed Razaq gave evidence that Nazim Hussain pulled up outside 17 Bishop Street in his Mondeo taxi. He got out of the vehicle and smashed the windscreen of the blue Mercedes. Deprived of his car, it was the prosecution case that Ashiq climbed into Nazim Hussain’s taxi from where he co-ordinated following events in revenge for the destruction of his car. Abid Hussain claimed in evidence that Ashiq telephoned him with a threat that his son Shafique was going to be attacked. Ashiq was identified by witnesses who claimed either that he was the driver of or a passenger in Nazim’s taxi from which he issued threats towards Shafique and his group that he would be returning to shoot him.[12]At 1.05 am, two men wearing balaclavas ran into Bishop Street. One of them fired two shots injuring Sajid Hussain in the groin. The gunshots also wounded Wajid Hussain and Mohammed Shabid. It is probable that at least some of the injuries were caused by ricochet from the road surface. Shafique himself was unhurt. Witnesses identified the gunman as Shabran from his voice. Immediately after the shooting Shabran ran with the second man to a waiting car followed by Nisar Ahmed and Mohammed Razaq, both of whom identified Kamran as the getaway driver.[13]Count 5 charged the appellants with co-ordinated attempts, by attacks on property and telephone threats, to prevent witnesses giving evidence. We are informed by Mr Kershaw, counsel for the prosecution at trial, that there were difficulties with identification of those involved.[14]There were significant and material inconsistencies in the evidence between witnesses for the prosecution. There were further internal inconsistencies in the evidence of individual witnesses. In particular, the complainants’ faction was unprepared to accept any responsibility for the attack on Ashiq’s red Mercedes. As the learned

judge observed during his ruling at the close of the prosecution case (page 9/13 Ruling):

“All the prosecution witnesses to the principal events, with the possible exception of three, are related and can be said to be within the Bishop Street faction. It is said that all have demonstrably told lies, that they have all contradicted themselves and that they are all mutually contradictory. The lack of truly independent evidence is highlighted, and it is submitted that the overall picture is one of a large number of family members with scores to settle, colluding and perjuring themselves in order to seek the conviction of some or all of these defendants on serious criminal charges.”
[15]Later, (page 12/3 Ruling)

the judge continued:

“Jameel Sadhagar, who was ultimately treated as a hostile witness, said in his evidence in chief that it was the Bishop Street faction who attacked the car with hockey sticks, snooker cues and so on, and that it was in fact Zakar Khan who set it on fire. He is the only witness who gives that account. All the other Bishop Street witnesses deny that they had anything to do with the attack on Ashiq Hussain’s red Mercedes.”
[16]In the case of Amar Hussain, the judge concluded that there was no evidence of participation and he directed the jury to return verdicts of not guilty upon counts 1 and 3. The judge identified the following evidence in the case of Nazim Hussain, the taxi driver, as material to counts 1 and 3: i) He was identified as smashing the front windscreen of the Mercedes; ii) Witnesses identified him either as a driver or passenger in the taxi from which Ashiq Hussain made threats to shoot Shafique’s group; iii) There was telephone traffic between Nazim and other defendants before and after the shooting. Nevertheless the judge concluded that an inference that Nazim was implicated in the conspiracy to carry out a shooting was not properly available to the jury and he directed not guilty verdicts in Nazim’s case upon counts 1 and 3. This may be seen as a generous conclusion in favour of Nazim and one relevant to later events to which we shall need to refer.[17]As to count 5 in Nazim’s case, Nazim’s taxi was identified at traffic lights at the junction of Bingley Road and Howarth Road, close to the home of Nisar Ahmed, at or about the time when two vehicles had been set alight. Its position was consistent with involvement in those incidents. The judge, therefore, rejected a submission of no case to answer on count 5.

Ashiq Hussain’s Grounds of Appeal

[18]The Recorder commenced his summing up on 2 April 2009. At the luncheon adjournment on that day the judge was informed that a female member of the jury intended to take no further part in the trial. She had become disenchanted with the length of the trial and needed to find work. She was persuaded by a jury bailiff to remain in order to communicate her intention to the judge. She did this in the form of a letter. The judge had himself formed the view that the juror had become detached from the proceedings and seemed to be taking a token interest in his summing up. He took the view that, despite the defendants’ wishes to be tried by twelve jurors, the safer course was to discharge the juror. This ground of appeal was faintly advanced and we conclude that there is no justifiable criticism of the judge’s decision.[19]On the afternoon of 3 April the Recorder commenced a round up of the evidence in the case of each of the appellants in turn. At the close of the court’s sitting on that day he had almost completed his summary of the evidence in the case of Ashiq Hussain. Overnight, the judge clearly reviewed the evidence concerning Nazim Hussain upon count 5. He concluded that contrary to the view he had taken at the close of the prosecution case, the jury could not properly convict Nazim on count 5 and so directed them. A verdict of not guilty was returned and Nazim was discharged.[20]Counsel were asked by the judge (transcript of summing up, page 115/26) whether there was any material knock-on effect. In the temporary absence of Mr Malcolm Bishop QC, leading counsel for Ashiq Hussain, both at the trial and in the appeal, junior counsel, Mr Jutla, raised the possibility that Nazim might be called to give evidence on Ashiq’s behalf. Nazim had elected to give no evidence in his own defence. Mr Jutla submitted that if Nazim had been discharged at the close of the prosecution case he would have been a compellable witness on behalf of Ashiq. Mr Jutla sought an adjournment for the purpose of taking instructions and consulting Mr Bishop on the question whether an application should be made to re-open Ashiq’s case for the purpose of calling Nazim to give evidence. The judge replied (transcript page 116/1), “No, I am not going to allow you to. If you want to pursue it elsewhere you can.”[21]Mr Bishop submitted on Ashiq’s behalf that this created an unfairness to Ashiq Hussain which went to the safety of the verdict.[22]Mr Bishop accepted and averred that until Nazim was discharged on the second day of the summing up, he was not a compellable witness to whom Ashiq could have had access. As soon as Nazim was discharged, he became a compellable and relevant witness in Ashiq’s defence.

(b) ECHR provides:

“(3) Everyone charged with a criminal offence has the following minimum rights: …….. (b) To have adequate time and facilities for the preparation of his defence. ….. (d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”
[23]Mr Bishop relied upon the statement of Lord Steyn in R v A (2) [2001] UKHL 25, [2002] 1 AC 45, at paragraph 38, concerning the compatibility of section 41 Youth Justice and Criminal Evidence Act 1999 (limitations upon cross examination of complainants in sexual cases) with the fair trial of a defendant under Article 6. Lord Steyn said:
“38. It is well established that the guarantee of fair trial under Article 6 is absolute: a conviction obtained in breach of it cannot stand, R v Forbes [2001] 2 WLR 1, 13, para 24. The only balancing permitted is in respect of what the concept of a fair trial entails: here, account may be taken of the familiar triangulation of interests of the accused, the victim and society. In this context proportionality has a role to play. The criteria for determining the test for proportionality have been analysed in similar terms in the case law of the European Court of Justice and the European Court of Human Rights. It is not necessary for us to reinvent the wheel. In Defreitas v Permanent Secretary of Ministry of Agriculture, Fishery, Lands and Housing[1999] 1 AC 69 Lord Clyde adopted a precise and concrete analysis of the criteria. In determining whether a limitation is arbritory or excessive a court should ask itself: “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
The critical matter is the third criterion. Given the centrality of the right of a fair trial in the scheme of the convention, and giving due weight to the important legislative goal of countering the twin myths, the question is whether section 41 makes an excessive inroad into the guarantee of a fair trial.” “whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”[24]Lord Steyn was dealing with the concept of the fair trial in a very different context. Nevertheless, we accept Mr Bishop’s submission that it is axiomatic that when the trial judge has the discretion to grant an application in favour of a defendant who wishes to call a witness, the interests of justice including the fairness of the trial are of the first importance in the judgement as to how that discretion should be the exercised.[25]Under the common law of England and Wales it is well established that the trial judge enjoys the discretion whether to permit a defendant to re-open his case at any moment before the jury retires to consider its verdict, for the purpose of adducing further evidence. In Morrison [1911] 6 Cr App R 159, the defence was permitted to adduce further evidence which had only just come to light following counsel’s closing speech. In Sanderson [1953] 1 WLR 392 the defendant was permitted to call a witness at the close of the summing up. In the present case the learned judge undoubtedly had the power to grant the application if he concluded that it was in the interests of justice to do so. The judge did not give reasons for his decision but it is not difficult to anticipate what they were. This trial had already overrun. One juror had been discharged. There was a risk that if the adjournment was permitted its length would be prolonged by the need for consultation between Mr Bishop and the accused, the need to take a witness statement from Nazim Hussain, and the need for the defence to make its decision whether Nazim should be called. That decision would almost certainly have required consultation with the other defence teams. If Nazim gave evidence, it was capable of having the effect not only of prolonging the trial but also, for reasons which will appear below, of requiring the judge to re-cast his directions to the jury in respect of Ashiq, Shabran and Kamran. The judge had heard the evidence implicating Nazim in the violent events taking place in Bishop Street. Nazim had elected not to give evidence in his own defence. It is not a surprise to us that the judge declined to open the door to further delay based upon such uncertainty.[26]It may be that the judge formed the instantaneous view that the prospect of Ashiq electing to call Nazim in his defence was minimal. While Nazim had been discharged from further consideration of counts 1, 3 and 5, that decision was made on the basis that, taking the prosecution case at its highest, namely Nazim’s involvement in events in Bishop Street (see paragraph 16 above and paragraph 36 below), the jury could not properly conclude that he was implicated in the conspiracies alleged. However, it is our view that, the defence having been asked whether the decision to discharge Nazim had an effect upon other defence cases and having been informed by Mr Jutla that there was such a possibility, the learned judge was somewhat peremptory in dismissing his application. The first step should have been, we consider, an inquiry as to what steps were required before Mr Jutla was in a position to indicate to the court whether an application would be made to re-open the defence case. Those inquiries would have been unlikely to take a prolonged period of time, and it may be that in consequence of the allowance of modest further time the prospect of an application would have been abandoned or, if maintained, granted without excessive disruption of the trial. In the absence of any explanation from the judge for his decision to refuse further time it seems to us at least arguable that the decision was unfair to the appellant Ashiq. That finding alone does not resolve his appeal, however. The decision for this court is whether, in the result, the judge’s decision had such an effect upon the fairness of Ashiq’s trial that the safety of the jury’s verdict is in question. There are, it seems to us, two issues which arise. The first is whether there was any reasonable prospect that, having considered his position, Ashiq would have instructed Mr Bishop or Mr Jutla to apply to re-open his case for the purpose of calling Nazim. The second is whether, if Nazim had been called to give evidence, his evidence could have had such an effect upon the jury’s consideration of Ashiq’s case that their verdict of guilty upon count 3 is arguably unsafe. It was common ground that Nazim’s evidence was relevant but was not, in view of the events which unfolded during the judge’s summing up, available to Ashiq at his trial. The issue for this court is whether Nazim’s evidence was capable of belief. For this purpose the court concluded that Nazim’s evidence should be received on appeal with a view to its admission under section 23 Criminal Appeal Act 1968. For the purpose of making this assessment we were provided with copies of Nazim’s summary of interviews, with his defence case statement and with copies of the witness statement he made on 29 April 2009, three weeks or so after Ashiq’s conviction.[27]Nazim Hussain was interviewed under caution between 1.05 and 10.41 pm on 7 November 2007, that is, 14 days after the events he was then purporting to recall. In his first interview, he gave a detailed account to the effect that he had finished work at about 11 pm before picking up a takeaway from Mahmoud’s on Leeds Road, Bradford. He then drove to the Shell garage, also on Leeds Road, to eat his food. There, by chance, he had met Shabran and Amar at approx 11.30 pm. This would have been just over an hour after the confrontation between Shabran and Shafique at the BP garage. They chatted for about 10 – 15 minutes about a problem with Shabran’s car. As a result, Shabran decided to leave his car overnight at the garage and Nazim Hussain took both men to his and Shabran’s home at 15 Wensleydale Road. They arrived there at approximately midnight. There was no suggestion that the meeting at the Shell garage was pre-arranged. Nazim denied having received any prior telephone calls from Shabran. There is, however, incontrovertible telephone and cellsite evidence showing three calls from Shabran’s phone to Nazim Hussain’s phone at approximately 9.30 pm and a further three calls from Shabran to Nazim Hussain between 9.10 pm and 11.29 pm while Shabran was ‘on the move’ from Leeds to Bradford. Further, at 11.51 pm, Shabran’s phone made a call which was picked up by the server nearest to the Shell garage. As to the circumstances of the meeting at the garage, the defence statement is silent both as to whether or not it was planned and as to the presence of Amar.[28]Only in his witness statement made on 29 April 2009 (see paragraph 35 below) did Nazim mention receiving a call from Shabran at about 11 pm. We have no doubt that this change of account was made to accommodate the telephone evidence. The overwhelming inference to be drawn is that the meeting at the Shell garage was in fact pre-arranged and not an unlucky coincidence. Its significance for the jury would have been the availability of the further inference that Nazim was, in interview, consciously distancing himself from the occasion when he was informed by Shabran of earlier events at the BP garage in Haworth Road and plans to take the attack to Shafique and his family in Bishop Street.[29]As to the time at which he finished work, in his defence statement and witness statement, Nazim maintained, contrary to his account in interview, that he had finished work at approx 6.00 pm.[30]In his second interview, Nazim said he remembered being at the BP garage on Haworth Road at around 2.00 am because he had seen the police there. After that, he and ‘J’, his girlfriend who he had collected at about 12.30 am, had driven around until he dropped her off at around 2.45 am. He claimed to remember being at home before 4.00 am “for sure”.[31]In the third interview, he stated that he had heard on the evening of 24 October about the firing of the Mercedes car the night before. It follows that when he was being interviewed, he was well aware that the night about which he was being asked was the night before he had heard this news.[32]In the fourth interview, allegations of sightings and overt acts were put to him and denied. He suggested that he had been ‘fitted up’ but agreed that none of the witnesses had, to his knowledge, any grudge against him.[33]In the fifth interview, the sighting of his car at 4.14 am at the BP garage on Haworth Road was put to him (see paragraph 37 below). He accepted that he must have been there but still did not remember it.[34]In the sixth interview, 3½ hours after the conclusion of the fifth, Nazim was confronted with his girlfriend Jodie’s account of the events of 23 October 2007. Nazim had refused to give any contact details for her, maintaining initially that he did not know her surname despite, on his account, having been her boyfriend for several months. When he was told that any delay in giving information about her might lead to the inference that he had ‘primed her’, he said that he could not get her involved as her mother had been locked up. In our view, it is no coincidence that when the police did make contact with Jodie she undermined beyond recovery Nazim’s alibi for the night of 23/24 October. Her account was that on the night of 23 October, she and Nazim had a row on the phone and had ‘called things off’; as a result they had not gone out that night and had not made up until later the following day. Furthermore, it is our opinion that these events provided Nazim with a second reason for remembering with precision the night about which he was being questioned, namely the night he and Jodie had a row and split up. When confronted with her account he said “I don’t really know”, and when the interviewing officer commented, “You don’t seem to know a lot really, do you?” he replied, “I know, that’s true. I don’t know a lot do I? I don’t know.” Nevertheless, he was still maintaining his account and asserting that Jodie was ‘probably mixed up’. At no stage prior to service of his defence statement did Nazim refer to Fayaz Ali. In his defence statement he did not identify Fayaz as his companion that night, but merely named him as a defence witness.[35]Nazim Hussain told the court during examination by Mr Bishop QC that he was born on 18 December 1984 and lived at 15 Wensleydale Road in Bradford, the address at which he had been living with Shabran at the time of the events of 23/24 October 2007. We were told by counsel that Wensleydale Road is some 2 to 3 miles from Bishop Street. Nazim was at the time of these events of good character. He worked for Arrow Taxis and drove a Ford Mondeo. He confirmed that upon his discharge he would have been prepared to give evidence in Ashiq’s case. Asked how well he knew Ashiq, he said he was not a blood relative, did not know him too well but he knew him. He confirmed that he recalled some of the events of 23 October 2007 but when asked whether he could remember what time he finished work he said that he needed to see his statement. He was shown without objection the statement he had made on 29 April 2009. Having consulted the statement in which he said he had finished work at 6 pm, he said thought he had finished work at about 7 to 8 pm. Then he had driven around Bradford with his friend, Fayaz Ali, in whose company he remained until 4-5 am on 24 October 2007. At about 11 pm he received a telephone call from Mohammed Shabran asking him to collect him from the Shell Petrol Station on Leeds Road. When he arrived he found that Shabran was drunk. Amar, who was with him, was pretty sober. He took them to 15 Wensleydale Road where he left them. It was Shabran’s alibi at trial that he and Amar slept in an attic room on the top floor of that property where they remained overnight. Upon Nazim’s present account that alibi could have been supported by Fayaz Ali and Nazim Hussain. Nazim Hussain told Mr Bishop that he spent the rest of the night ‘joyriding’ in his taxi. With two exceptions he did not know where he drove, save that he drove around Bradford. At about 1.30 am he went to Motorwise whose offices were at the junction between Toller Lane and Bingley Road. He did not explain why he went there. Because he noticed a car outside he drove in and there saw a police vehicle. After a brief stay he drove away again and continued his joyride around Bradford. At 4 am he recalled visiting the BP petrol station and purchasing a soft drink. Asked why he went to the BP garage, he said he was thirsty. He returned Fayaz to his home at 4-5 am before returning home himself to 15 Wensleydale Road. Nazim maintained that at no stage during the night of 23 and 24 October did Ashiq Hussain enter his taxi. He did not see him that night, he did not go to the Bishop Street area, he did not see a red Mercedes on fire and had no knowledge of events in and around Bishop Street until after his arrest.[36]At the close of the prosecution case the trial judge summarised the evidence concerning Nazim Hussain during the night of 23/24 October 2007 as follows:(a) Nazim Hussain was seen smashing the front window of the blue Mercedes in Bishop Street;(b) Witnesses identified Nazim driving his taxi from which Ashiq Hussain made gun gestures and threats to a number of people on Bishop Street;(c) Nazim was seen in his taxi at traffic lights at the junction of Bingley Road and Howarth Road shortly after the shooting when vehicles outside Nisar Ahmed’s house nearby had been attacked;(d) There was cell site evidence of Nazim’s presence in the north west Bradford area at the relevant time;(e) There was telephone traffic between Nazim and other alleged co-conspirators before and after the shooting;(f) Nazim’s taxi was seen at the premises of Motorwise with a number of men half an hour after the shooting;(g) Nazim was present at the BP garage at about 4 am when men were seen to transfer between vehicles. Nazim drove off at high speed.[37]Nazim Hussain was cross examined by Mr Kershaw. Asked by Mr Kershaw whether he was in the North Leeds area at 11 pm, Nazim replied that he was not sure. He agreed that two of the witnesses who identified him smashing the window of the blue Mercedes, Wajid Hussain and Adelat Hussain, were known to him. When it was pointed out to him that contrary to his evidence the cell site analysis showed that he was in the Bishop Street area that night, Nazim Hussain responded, “Does it?” It was pointed out to him that while there were a number of calls to and from his mobile phone there were no calls around the time of the shooting. Nazim replied that he did not know. He could not remember that later his car was at traffic lights in the immediate vicinity of fire attacks on nearby vehicles. He claimed not to remember at what time in the morning he had been at the premises of Motorwise. As to his visit to the BP Petrol Station at 4 am, the evidence had been that someone had jumped out of his taxi and transferred to a white Peugeot before Nazim sped away. In evidence Nazim said he could not recall any men transferring from one vehicle to another. He denied that he had driven off at high speed. Nazim was reminded that during his interview he told the police that he had been driving around Bradford with his girlfriend, Jodie Tait. Nazim said he did not know. He was reminded that the police traced Jodie who did not support his alibi. He responded that he could not remember claiming to have been with Jodie. He was reminded that he had submitted a signed defence statement to the Crown Court in which he had admitted not telling the truth in interview about his alibi. Nazim provided the court with no explanation for this concession.[38]While he had not in his defence statement specifically identified Fayaz Ali as his companion that night he had named him as a witness in his defence. Nazim Hussain claimed not to remember. He confirmed that Fayaz Ali was alive and well at the time of the trial and that Nazim and Ashiq shared the same solicitor. It followed from Nazim’s evidence that if Fayaz Ali could support Nazim’s alibi then so could he have supported Ashiq’s denial that he entered Nazim’s taxi that night. It was Shabran’s evidence at trial that any telephone calls made from his mobile after his return to 15 Wensleydale Road were not attributable to him because he had left his mobile phone in Nazim’s car. One of those calls, after the shootings, was to Shabran’s girlfriend. Asked by Mr Kershaw whether he had any knowledge of Shabran’s girlfriend’s telephone number, Nazim replied that he did not. When asked whether Shabran had left his telephone in his taxi he said he could not remember. Asked whether either he or Fayaz called Shabran’s girlfriend from the taxi he again replied that he could not remember. Asked whether he returned Shabran’s mobile phone to him he replied that he did not know. Asked whether he could recall a phone ringing in his car he said he could not remember.[39]Mr Bishop QC submitted that this was plainly not a witness who had been coached to give evidence. The vagueness of his account had the ring of truth about it. He is a witness on whose account the defence may well have relied had it been available to them at the time of trial. On the contrary, this court has no hesitation in concluding that Nazim Hussain was not a witness of truth. We are quite satisfied that he knew the purpose of his giving evidence in Ashiq’s appeal and that he was well aware of relevant evidence affecting both him and Ashiq. We make due allowance for the lapse of time since trial but simply cannot accept Nazim’s claims not to remember important events which featured large at his trial. Unchallenged cell site evidence demonstrated the improbability of his claim not to have been in the vicinity of Bishop Street on the night of the shooting. He admitted in his defence statement that the alibi given in interview had been untrue. Shabran gave evidence at trial of being collected by Nazim from the Shell garage. He claimed to have left his mobile phone in Nazim’s taxi. On Nazim’s present account Fayaz Ali was with him in his taxi and could have supported Shabran’s alibi. No mention of Fayaz Ali was made in the course of Shabran’s evidence. It seems obvious to us that if Nazim Hussain had given evidence he would have faced questioning upon the issue of Shabran’s phone. If he was unable to explain the telephone call to Shabran’s girlfriend made on Shabran’s telephone the detrimental effect to Shabran’s case was obvious. The cell site analysis was consistent with a journey by Shabran’s telephone from the Shell garage from which Shabran was collected by Nazim shortly before midnight; a journey from the Shell garage to the Bishop Street area by about 12.15 am; a journey from the Bishop Street area to the Bingley Road area, where Motorwise was situated, and a return to Bishop Street by 12.29 am. No call was made from Shabran’s mobile phone between 12.29 and 12.57am. At 12.57am the call to Shabran’s girlfriend was made from a cell site serving the Bingley Road, Motorwise and BP petrol station areas. Cell site evidence was consistent with the movement of Shabran’s phone towards Bishop Street just before the shooting. Had Nazim been exposed to cross examination on behalf of the prosecution at trial, the improbability of his account that he was never in the Bishop Street area would have been exposed. The eye-witness evidence of Shafique Hussain, Sajid Hussain, Wajid Hussain and Adalat Hussain to the effect that Nazim Hussain’s taxi was in Bishop Street at the material times was consistent with the cell site evidence of calls made by Nazim’s phone. In order to accept the evidence of Nazim, the jury would have been required to contemplate the possibility, not only that these witnesses had lied about seeing Ashiq in the vehicle in Bishop Street, but about the fact that the vehicle was there at all. Despite his evidence to this court, we regard it as highly improbable that Nazim would have agreed to give evidence on behalf of Ashiq and, thereby, expose Shabran’s position or that those acting for Ashiq would have taken the risk of calling him in a re-opened defence case. Much more probable, in our opinion, would have been a judgement that Ashiq’s position was better protected by the absence of Nazim from the trial altogether. However, we are in the present context not concerned with probabilities. If there is a workable possibility that Nazim would have been called in a re-opened defence case then we must finally consider the impact of his evidence on Ashiq’s trial.[40]For the reasons we have given, we have no doubt that Ashiq’s position could not have been improved in the eyes of the jury and, in all probability, would have been made much worse. Nazim’s first alibi was admittedly false; his second alibi was unsupported by evidence from Fayaz Ali notwithstanding Fayaz Ali’s availability; Nazim’s evidence was vague and inconsistent upon matters which incriminated him in relevant events; making due allowance for the defence case of bias by prosecution witnesses towards Ashiq and his family, there was powerful evidence from witnesses, whom Nazim said had no axe to grind with him, that he was in Bishop Street at the time the violence erupted. Desirable though it would have been for the judge to permit time for consultation and reflection, we are quite satisfied that in the result no unfairness capable of affecting the safety of the verdict in Ashiq’s case took place.[41]Mr Bishop QC pursued a further application to adduce fresh evidence from the Orange mobile telephone network provider. The application was deficient since it was unsupported by evidence explaining why the evidence was not available at trial. Secondly, we were invited to admit the evidence in the form of a letter from an employee of Orange to the effect that on 24 October 2007 Ashiq Hussain secured an upgrade by means of a SIM card swap and a new handset. The letter confirms that the handset was provided with a new international mobile equipment identifier (IMEI). However, the evidence which this ‘fresh’ material was intended to rebut was to the effect that calls continued to be made on Ashiq’s old handset after the shootings had taken place. Ashiq wished to establish that the call records may have recorded inaccurately the IMEI number of the handset on which he made calls made after his car was set on fire. The fresh evidence simply did not have the effect claimed. Furthermore, on Ashiq’s account his old mobile phone should have been destroyed in the fire which consumed the red Mercedes. We refuse leave to admit the ‘evidence’ from Orange.[42]In conclusion, we have no reason to doubt the safety of the verdict in Ashiq’s case and his appeal is dismissed.

Mohammed Shabran’s Grounds of Appeal

[43]It was submitted on behalf of Mohammed Shabran by Mr Nathan QC that the judge should have acceded to a submission of no case to answer at the close of the prosecution case, alternatively at the close of the evidence, and alternatively that the state of the evidence renders Shabran’s conviction unsafe. Mr Nathan’s submissions concentrated upon the voice recognition evidence upon which the prosecution relied to identify Shabran as the gunman. Mr Nathan adduced the evidence of a leading expert in voice analysis, Professor Peter French, in order to provide the jury with some assistance as to the limitations of the evidence they had heard of voice recognition. Professor French gave evidence that if he were analysing a sample of voice he would require substantially more speech from the “suspect” voice than the words spoken by the gunman at the scene in order to make a meaningful comparison. He would need fewer words if the speaker had a distinctive voice. In his view, the fact that the words were shouted made voice comparison more difficult.[44]The nature of the evidence being considered by the jury can be summarised as follows. Adalat, Sajid and Wajit Hussain all claimed to have heard the gunman shout the word “Oi!”. Zakar Khan heard the gunman shout “You mother fuckers”. Nisar Ahmed heard the gunman shout “Kill them, you mother fuckers”. Zakar Khan said he had heard Shabran using similar words during the earlier incident at the BP Petrol Station. While there was evidence that Shabran had on other occasions used the word “Oi”, we accept the submission that the evidence of Adalat, Sajid and Wajit was of little or no value to the jury. The evidence of Zakar Khan and Nisar Ahmed was, we accept, at the borderline of admissibility.[45]The attention of the judge was drawn to the decision of this court in R v Flynn and St John [2008] 2 Cr App R 20 in which the court highlighted the dangers inherent in voice recognition. At paragraph 16 Gage LJ, giving the judgment of the court, observed that in general terms the expert evidence before the court demonstrated(1) identification of a suspect by voice recognition is more difficult than visual identification;(2) identification by voice recognition is likely to be more reliable when carried out by experts using acoustic and spectrographic techniques as well as sophisticated auditory techniques, than when made by the lay listener;(3) the ability of a lay listener correctly to identify voices is subject to a number of variables. There is at present little research about the effect of variability but factors which are relevant include: i) The quality of the “suspect” voice; ii) The gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice; iii) The ability of the individual lay listener to identify voices in general; iv) The nature and duration of the “suspect speech”. Some voices are more distinctive than others and the longer the sample of speech the better the prospect of identification; v) The greater the familiarity of the listener with the known voice the better the chance of an accurate identification of the disputed voice.[46]In Flynn, the court was concerned with the quality of a covert recording and recognition subsequently made, not with spontaneous recognition at the scene of an alleged crime. The court concluded that the evidence should not have been admitted since the covert recording was of insufficient quality for voice recognition to be made by non-expert witnesses. In this case both sides and the judge agreed that the quality of the evidence was in the nature of a “fleeting glimpse”. The judge took the view, having heard the evidence of the witnesses, and before hearing the evidence of Dr French, that the voice recognition evidence should be considered by the jury subject to explicit warnings. The judge reached this conclusion since, applying the principles in Turnbull [1976] 63 Cr App R 132, the jury was entitled to consider not merely the quality of recognition but also any evidence capable of supporting it. That evidence included threats to kill uttered by Shabran to Shafique Hussain at the BP petrol station not long before the shooting, the request made to his brother Kamran during his mobile telephone call from the BP petrol station, the presence of his mobile telephone within the area of Bishop Street at the material time, and, if the jury so concluded, the falsity of his alibi. In our judgment the learned judge’s decision cannot be faulted.[47]As we have observed, explicit directions to the jury as to the caution required were needed. In a passage of his summing up commencing at page 39 the learned judge gave those directions. He pointed out to the jury that the principal defence case was that the identifying witnesses were lying, not that they had made a mistake. Nevertheless the jury had to be alert to the possibility of mistake. The judge proceeded to give the jury assistance as to their approach to the defence case. We add in parenthesis that it was a curious fact, if the witnesses were motivated by malice, that they did not purport to make a more specific visual identification of Shabran notwithstanding that the gunman was wearing a balaclava. The judge proceeded, however, to provide the jury with directions as to the reliability of the evidence only on the assumption that the jury concluded that “a particular witnesses’ evidence is truthful, accurate and reliable”. He warned them of the special need for caution before convicting Shabran upon any of the evidence of voice recognition despite the fact that they concluded the evidence was honest, truthful, accurate and reliable. He provided the jury with a modified Turnbull direction. He pointed out that having regard to the incident at the petrol station the witnesses may have been expecting Shabran to turn up in Bishop Street with a gun. There was a risk that their purported recognition was prompted by prior knowledge. The jury was reminded that contamination by talk in the street after the event was a danger against which they should guard. The evidence of Dr French, pointing out the advantages of scientific analysis of voice samples over “lay listener voice recognition”, was summarised. The judge explained the difference between an exercise of voice analysis carried out by an expert and the judgement of witnesses claiming to recognise a voice in the street. He explained that the lay listener has no expertise and is unable to analyse in hindsight the reasons for the recognition claimed. The judge particularly directed the jury’s attention to the limitations of voice recognition evidence created by the limited number of words upon which any of the witnesses relied. He concluded by saying that even the most competent recognition of a voice by a lay listener may nevertheless be wrong. In our judgment the judge gave the firm directions which were promised at the close of the prosecution case. We consider that the judge was right to permit the jury to consider this evidence in the light of his warnings. We have no reason to doubt the safety of the resulting verdict.

Mohammed Kamran’s Grounds of Appeal

[48]It was also submitted on behalf of Kamran by Mr Hill QC that the case against him should have been withdrawn at the close of the prosecution case. The principal evidence in Kamran’s case was the identification evidence of Nisar Ahmed and Mohammed Razaq. It was submitted to the judge that while the reliability of a witnesses’ identification was a matter for the jury there was in the instant case the underlying assertion of a conspiracy by the complainants to pervert the course of justice. If Nisar Ahmed and Mohammed Razaq were demonstrably lying about key events and seeking to conceal evidence relating to the central issues then their evidence could not properly support a verdict of guilty.[49]Mr Hill identified several matters of importance. It was submitted that they lied about their presence at the attack on the red Mercedes. They knew or should have known the identity of the getaway driver. Not until ten days after the event did the witnesses reveal Kamran as the alleged getaway driver. Adalat Hussain gave evidence which cast doubt upon Razaq’s assertion that he was anywhere near a point at which he could have made the identification he claimed. Nisar Ahmed, it was asserted, had lied to the jury about his identification of Kamran damaging his car on 12 December 2007.[50]We are not persuaded by these submissions. Matters of credibility are for the jury. In his preamble to the consideration of the cases against each accused at trial the learned judge demonstrated his complete grasp of the basis for the defence allegation that the evidence for the prosecution was riddled with collusion. Nevertheless, these were matters for the jury. The judge correctly identified evidence which was capable of providing some support for the correctness of the identification. In particular, Kamran lied in interview when claiming that he was unable to drive a car. He had a previous conviction which demonstrated the untruth of that assertion.[51]Mr Hill points out to us that there may, in the minds of the jury, have been an interlocking effect between the cases of Ashiq, Shabran and Kamran. If Ashiq and/or Shabran were not present in Bishop Street at the material times, that made it the less likely that Kamran was the getaway driver. We recognise that there is sense in Mr Hill’s assertion but, in the end, the jury had to make a decision whether they were sure the person driving away the gunman was, as the witnesses said, Mohammed Kamran. Furthermore we have decided that the verdicts in the case of Ashiq and Shabran were safe.[52]We conclude that the appeal of each of these men should be dismissed. The appeals of Shabran and Kamran were privately funded. Ashiq’s appeal was publicly funded but limited to junior counsel only. We think it was desirable, in the particular circumstances of his case for reasons which appear in this judgment, that leading counsel at the trial should present his appeal and the representation order in Ashiq’s case is extended to Mr Bishop’s presence at the appeal.[53]We were invited in the cases of Ashiq and Kamran to consider the sentences imposed notwithstanding the refusal of leave by the single judge. We have reconsidered counsel’s advice and grounds. We agree with the conclusion of the single judge that the commission of the offence of conspiracy with intent to cause grievous bodily harm by means of a firearm which was in fact discharged so as to cause injury renders the sentence upon each of the appellants manifestly justified. In our view it is not arguable that the judge should have distinguished between the appellants, nor that the sentences were excessive.

Cited in 1 later judgment