Ali & Anor, R v [2014] EWCA Crim 140

No: 201205413 C2 201206265 C2[2014] EWCA Crim 140
201IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 22 January 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MR JUSTICE BLAKE
Between
R E G I N ACrown
RECORDER OF WINCHESTER - HIS HONOUR JUDGE CUTLER
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
v
Between
AHDEL ALIMUBAREK ALI
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr T Khan appeared for applicant, Ahdel AliMr A Dowden appeared for applicant, Mubarek AliMiss A Brown appeared for Crown
J U D G M E N T

LORD JUSTICE DAVIS:

[1]The appellant, Ahdel Ali, now aged 26, was born on 23 September 1987, the appellant, Mubarek Ali, was born on 14 May 1983. Each was convicted after a lengthy trial before HHJ Patrick Thomas QC and a jury at the Crown Court at Stafford, on 8 August 2012, of various counts of controlling child prostitution and sexual activity with a child. So far as the first appellant is concerned, he was convicted of a count of rape, a count of inciting a child to engage in sexual activity, a count of meeting a child following sexual grooming and a count of inciting child prostitution. So far as the second appellant is concerned, he was convicted of counts of controlling child prostitution, counts of trafficking for sexual exploitation and a count of causing child prostitution.[2]In due course, on 5 October 2012, on these various counts, the first appellant, Ahdel Ali, was sentenced to an extended sentence of 26 years comprising of a custodial term of 18 years and an extension period of 8 years. In addition, a substantial sexual offences prevention order was made against him until further order. The extended sentence was made up of a combination of consecutive and concurrent sentences.[3]So far as the appellant, Mubarek Ali, was concerned, he received in total an extended sentence of 22 years comprising of a custodial term of 14 years and an extension period of 8 years, again by a combination of consecutive and concurrent sentences, and he also received the same sexual offences prevention order.[4]The appellant, Ahdel Ali, now renews his application for leave to appeal against conviction, leave having been refused by the Single Judge. Both also appeal against sentence, leave in that regard having been granted by the Single Judge.[5]The background of facts are well-known to the parties and their lawyers, fully set out in the Criminal Appeal Office summary, as well as the party's various written grounds, and therefore do not need rehearsing again here. Suffice it to say, by way of overview on the prosecution case, for around a 2-year period the second appellant, Mubarek Ali, known at trial as Max, and his brother, Ahdel Ali, known at trial as Eddie, prostituted and trafficked various girls, including girls who may be identified as H and S, to older men. In addition, Ahdel Ali, on the prosecution case, allegedly had sexual relations with H, S and a girl called L when they were under the age of 16. In addition, he was charged with a count of rape of L; and there was a count of trying to incite a girl called J to engage in sexual activity and other matters. Parents and professionals became increasingly concerned and eventually the police were involved.[6]The allegations undoubtedly raised matters which were squalid and sordid, indeed shocking. The Crown case was that, in effect, the two appellants, significantly older than the girls concerned, groomed and controlled them. They used no force or violence, they did not need to. They charmed the girls, all of whom were vulnerable and came from very troubled backgrounds, sometimes offering drink and cannabis and the like and persuading them to engage in sexual activity, including sexual activity with a number of men on the same occasions. It is not necessary, for present purposes, to say more. On any view, these were very grave allegations indeed.[7]In summary, the position of the appellants at trial was that it was said that the girls in question were lying; they were wholly unreliable witnesses; their backgrounds and personalities were very troubled, which made them all the less worthy of belief; they were prone to making false allegations; and maybe, in at least some cases, prompted by thoughts of obtaining compensation. It was in effect said that the association, which undoubtedly the appellants had with these girls variously, was of an innocent kind.[8]So far as the first appellant, Ahdel Ali, is concerned, he renews his application for leave to appeal against conviction on a number of grounds. The first advanced on his behalf by Mr Khan today (Mr Khan having appeared on his behalf at trial below) was that the judge had erred in refusing to discharge the jury in view of Ahdel Ali's ill health at trial. He had undoubtedly been observed as being ill during the trial and on at least one occasion the trial was adjourned accordingly.[9]A police surgeon, who was also a consultant psychiatrist examined him. His opinion given to the court, and this court has now seen that opinion, was that the first appellant was physically and mentally fit enough to continue giving evidence. That having been explained to the judge, the judge directed that the trial should proceed, which it did. At a later stage at the trial the first appellant's legal team sought to put further medical and other materials before the judge relating to the state of health of the first appellant. This seemed to have been mooted before the judge at the end of July and then again was mooted at the end of the first week in August, at a stage when all the evidence had been concluded.[10]The instructions of Mr Khan apparently were that whilst the judge was to be permitted to see this further material, including medical reports, the prosecution was not to be permitted to see it. The application thus was made to the judge that the jury should be discharged, at least so far as this appellant was concerned, on the basis of material on which the prosecution would have had no opportunity to comment.[11]In our view, that is a quite remarkable stance to have adopted. To discharge a jury does not impact solely upon the defendant who is seeking a discharge: it impacts upon all others concerned in the trial, prosecution, co-accused and jurors, and impacts more widely on the general administration of justice. We can hardly conceive of any case whereby a judge could properly entertain an application to discharge a jury based on material which the prosecution have not been permitted to inspect. We think that the judge was fully entitled to refuse to entertain this further application to discharge the jury on this basis, and we reject Mr Khan's strenuous criticisms of the judge in this regard. Indeed, Mr Khan had focused solely in his argument on what he said was the damage to the interests of his client, without any regard at all to the interests of others concerned.[12]Quite apart from that, this court was this morning presented with the materials of which reliance was sought to be placed, including the further medical reports and a letter from the first appellant himself, which this court has looked at de bene esse. Having looked at it we consider that there is nothing in it which would indicate that the judge's refusal to discharge the jury was wrong. Accordingly this ground has no substance.[13]The second point sought to be argued is by reference to two texts from young girls, who were not called to give evidence at the trial, of highly explicit sexual nature sent to the mobile phone of the first appellant. It is said that such evidence should not have been permitted to be adduced as bad character or hearsay evidence, and, in any event, to do so was wholly prejudicial to the first appellant and should have been excluded even if otherwise admissible. In our view, the judge was perfectly entitled to allow such texts to be adduced in evidence. Indeed, they did not really involve hearsay as such. They were not relevant as to the truth, or otherwise, of their contents, they were relevant as to the fact that they were sent. As to whether or not they should nevertheless be excluded as unduly prejudicial to the first appellant, that was a matter for the judge's discretion.[14]A third complaint is that the judge had unfairly restricted cross-examination of one of the complainants, the girl L. L in fact had been cross-examined at considerable length, she featuring very prominently in the trial proceedings and indeed the count of rape relates to her. This particular complaint with regard to the judge is that he wrongly inhibited cross-examination of L with regard to another complaint she had made with regard to an alleged sexual assault on her by her brother, which she had accepted had been a false complaint. One can clearly understand the relevance of that to the defence case at trial, the defence being that these were trumped up charges against these two defendants.[15]However, as appears from the transcript, it is clear that L was in significant distress when giving evidence, certainly at this stage. Moreover, she had admitted that she had made a false complaint with regard to her brother. In such circumstances, and as a matter for the judge as a matter of trial management, it was open to the judge not to permit lengthy cross-examination on this issue which she had admitted. The judge further directed that the details of the false complaint be reduced into writing and placed before the jury as part of the admission. In such circumstances, we think that such a ruling was properly open to the judge and it imposed no unfairness on the first appellant.[16]The fourth complaint is that the summing-up was deficient as to the ingredients of the count of rape, and, in particular, what is said to be an issue of what may have been implied consent. L had said that after there had been initial consensual sexual activity between her and the first appellant, she had then said words to the effect, "It hurts and "Stop", but the first appellant persisted in sexual intercourse with her until he ejaculated, saying, when she made the initial protest, that he needed two minutes. What is said is that the judge should have at least directed the jury that in those two minutes, because L said nothing further by way of protest, she may have consented to what was going on, or at all events that the first appellant genuinely and reasonably believed that she was consenting. However, we have considered the full comments of the judge made over several pages of the transcript of his summing-up in this regard, and we are quite satisfied that the judge directed the jury properly in this regard.[17]It is also said that because L had not said that she had been raped, indeed there was evidence before the jury to the effect, as we understand it, that she had not considered that she had been raped, it was simply perverse for the jury to have found that the count of rape had been proved. We note that if that was so one would have expected a submission of no case to answer at half time in this regard, but none was made. In any event, it would not have been perverse. How L, in subsequent events, views the matter is not necessarily decisive. Her evidence was that she had said, "It hurts" and "Stop". It was a matter for the jury, considering all the evidence, as to whether or not the count of rape had been proved.[18]The fifth point sought to be raised is that it is said that in a number of other respects, and indeed overall, the jury verdicts were perverse: although again we repeat that our understanding is that no submission of no case to answer was made. It is complained that the girl H's evidence was so inconsistent, so discredited and so marked by retractions and other defects, and marked also by an indication that she was looking to claim compensation, that no jury could safely rely upon her evidence. But overall this was precisely a jury matter. Indeed, so far as we can tell, the entire defence strategy was to seek to minimise all the female complainants' evidence by strongly attacking their character, their behaviour and their motivation. Certainly that was so with regard to H. All of these were jury matters.[19]A further complaint made is that it was not properly open for the jury to have concluded that the first appellant had had sex with H when she was under the age of 16, as alleged for the purposes of various of the counts; and he had, it is said, no reason to think that she was under 16. It was accepted by H in evidence that she had told the first appellant that she was over 16. Mr Khan submits that that, in effect, was the end of the matter. There was no other evidence to controvert that, therefore the jury could not properly have convicted on these counts.[20]However, as the judge spelled out in his summing-up, there was an amount of other evidence to indicate that the first appellant did in fact know that she was under 16 (and indeed she was, in point of fact, under 16). Those were matters again for the jury to assess. It is not correct to say, as Mr Khan says, that there was no evidence to support the prosecution case in that regard.[21]Complaint is also made as to the counts relating to the girl J, involving grooming and inciting to prostitution. Reliance is placed on J's evidence, and indeed other evidence, to the effect that she had not taken the proposal seriously and, for example, was giggling when the proposals were made. Whether or not she took the proposals seriously does not go to prove, one way or other, that what the proposals were were not being made seriously, so far as the first appellant was concerned. That was precisely the point taken by the judge rejecting the prosecution case. That was a proper point to take. It was for the jury to evaluate.[22]We have considered all the grounds sought to be advanced by Mr Khan. We have considered them not only individually, but cumulatively. Overall we entirely agree with the Single Judge in this regard. To the extent that looking at the matter cumulatively Mr Khan sought to say that there was here, to use the time honoured phrase, "a lurking doubt", we do not agree. These were conclusions properly open to the jury on the evidence adduced before them.[23]Turning then to the appeals against sentence. To some extent they overlap, although of course the position of each appellant has to be considered separately. One initial point does need to be noted and indeed corrected. It is common ground that the judge's sentence was unlawful in at least one respect, so far as the appellant, Mubarek Ali, is concerned, on counts 1, 3, 4, 5 and 6 the statutory maximum sentence available was 14 years, but the judge imposed, an extended sentence of 16 years on those counts. That was not open to him. Nevertheless, it is plain from his sentencing remarks, read as a whole, that he intended that the maximum extended sentence period was to be applied. Accordingly, what he intended to be achieved could be achieved by substituting sentences of 14 years on those counts involving an 8-year custodial term and a 6-year extended licence. In addition there is a technical error in the sentence on count 21, so far as the first appellant is concerned. It was not open to the judge technically to impose an extended sentence on that particular count, and we substitute for that sentence a term of 1 year concurrent in that regard. The position is as notified to the parties in the Criminal Appeal Office summary.[24]Those, however, are the technicalities. What has to be addressed is the substance, so far as these appellants are concerned, as to whether the judge was right and justified in imposing the sentences he did impose, both in terms of the custodial element and as to the length of the extended period. There is a challenge in that regard to the judge's finding of dangerousness.[25]The judge's approach is made crystal clear by his detailed and careful sentencing remarks. He made clear that, so far as the prostitution activities were concerned, he regarded the second appellant, Mubarek Ali, as the principal of the two. Dealing with each of the appellants

the judge said this:

"Each of you fought the case, essentially on a single basis, that the victims of your offences were liars. In fact, as you have known all along during the progress of this case, it is you two who lied, you two whose word is worthless. You have not shown at any stage any remorse or regret for what you did. Instead, you have twisted and turned to avoid justice."
The judge went on to make clear that he had regard to the sentencing guidelines and recorded his observations of the two over the trial period. The judge noted the background facts relating to the prosecution of the victims and he said this, with regard to the second appellant:
"I have no doubt that part of your motive went beyond profit, although you did profit from what they did, and involved sheer gratuitous pleasure in the power you exercised over these unhappy girls. To you, it was fun. For them, it was degradation."
[26]The judge went on to conclude that the appellants dealing with the victims were assisted by them being encouraged to drink and to smoke cannabis. The judge accepted, of course, on the evidence that they were already familiar with that, but:
"...you deliberately and cynically employed them, to weaken these girls' resistance, to subdue them to your will, and that is an aggravating feature of your offending. In addition, and this is a further aggravating feature, you recognised that they lacked self-esteem and self-confidence and you preyed on their weaknesses. I accept that you did not use force. You did not need to. Your motives for what you did were throughout squalid, demeaning and selfish."
[27]The judge then went on to deal with the facts, in some detail, and so far as the first appellant was concerned he considered that he had demonstrated in the course of his defence "a wholly conscienceless pattern of thought". The judge then went on to deal with further matters, and he noted the contents of the reports and the recalcitrant attitude towards acknowledging the defendant. The judge said overall he was satisfied that an ordinary determinate sentence would not be sufficient to protect the public from him. He indicated that he proposed to impose the maximum liable extension period. Sensibly and fairly to these appellants, and on the view he had taken, he refrained from imposing sentences of imprisonment for public protection, which would still have been available to him under the old sentencing regime.[28]The two pre-sentence reports were prepared by separate probation officers. They indicate, so far as each appellant is concerned, a complete denial of responsibility for what they have been accused of and a total lack of victim insight. It appears that both of them take the stance that they have been the victims of a prejudiced and perhaps racist trial system: views which they may still hold. In each case it was concluded that each of the appellants met the criteria of dangerous, indicating a serious risk of serious harm to others. Clearly those reports were highly material for the judge's consideration, even though of course he was not obliged to follow them.[29]It is said, on behalf of each appellant, that in truth no finding of dangerousness was justified. It is said that given all the circumstances there was, and is, no significant risk of serious harm. It is emphasised that no actual force or violence was ever used with regard to any of the female complainants, although of course the real harm here in offending of this kind is psychological harm.[30]Overall, for the reasons given by the judge, we disagree with these submissions. We think the judge was entitled to conclude as he did, and was entitled to accept what is said in the pre-sentence reports. In our view, overall there can be no justifiable complaint to the imposition of extended sentences. Furthermore, the judge was entitled to have regard to his own observation and assessment gleaned from his conduct of the trial, which indeed accorded with the views of the probation officers.[31]Mr Khan, on behalf of the first appellant, draws attention to his relative youth and to the lack of previous convictions at the time these offences emerged. He also draws attention to the fact that on any view the first appellant would be receiving a very significant custodial sentence. That in the circumstances is no bar to the imposition of an extended sentence, or an extended sentence of the length the judge considered appropriate.[32]As to the second appellant, Mubarek Ali, Mr Dowden has drawn attention to a number of points on his behalf in opposing the extended sentence: these include the lack of relevant previous convictions; the age of the offences on the indictment; the fact that no offences have been committed since the matters tried; there were only two complainants involved in this appellant's pattern of offending; he was not tried on any sexual offences committed by him on any of the complainants; and that he had strong family links and certain other family circumstances necessary to be considered. We have had regard to those points, but, in our view, those matters did not disentitle the judge from his assessment of dangerousness and imposition of extended sentences.[33]Complaint is also made, on behalf of each appellant, as to the length of the custodial element of the sentences imposed. These were undoubtedly very lengthy sentences, indeed they were very severe sentences. One only has, however, to see what the jury found to have been proved here to understand the gravity of this particular offending. We think the custodial element of these sentences was also justified. Overall we dismiss the appeals against sentence on these particular grounds.[34]There is, however, a complaint made by Mr Dowden as to the terms of the sexual offences prevention[35]Having considered the matter, and stringent though this sexual offences prevention order is, we think, given all the circumstances, that it was a proper order to make. There are, however, two exceptions to that: firstly, as this order reads, on the face of it, it might operate to exclude, or greatly limit, contact for the appellants and, in particular for the second appellant, who already has children from contact with their own children. Miss Brown today fairly accepts that was not the intention and the order must be modified so as to include a provision to the effect that nothing in it should operate so as to restrict or impede any contact of either appellant with his own children.[36]The second point is a more linguistic point, but it does have some substance on the fairness of the order. We agree with Mr Dowden's submission that the acquiring of the consent not only of a particular child's parent or guardian, but also Social Services, goes too far. In other words, in 4.2 and in 5, in the relevant respects, the word "and" should be replaced by the word "or".[37]So with the correction of the technically unlawful offence sentences, which we have indicated and with this correction of the sexual offences prevention order, aside from that the appeals against sentence are dismissed. We will leave it to counsel to draw up a minute of order to reflect what needs to be done in terms of correcting the sentences.

LORD JUSTICE DAVIS: Is there anything else?

[39]MR KHAN: No, my Lord.

LORD JUSTICE DAVIS: Thank you very much. I am told, so far as the first appellant is concerned, there is uncertainty as to days on remand. Can you please between you agree what the appropriate credit reduction should be for days spent on remand? I think it still needs to be reflected in this particular sentence. Could you please sort it out and in the minute of order you submit have the agreed time spent on remand to count towards sentence? Mr Khan, can you agree that, please, with Miss Brown? Mr Dowden, I do not think it effects you, but you better check the position to make sure it is completely covered. Thank you very much.

order

submissions adopted in the course of his argument by Mr Khan. There is no doubt that the sexual offences prevention order was in very stringent terms. We are told that it was only presented to the defence at the time of the sentence hearing, with hardly any chance to consider it in advance, if at all. This court, as indeed the Crown Court, is constantly complaining about the failure of prosecutors to give proper notice of sexual offences prevent orders proposed to be sought. These are important matters and it is only right that defence teams should have a proper chance to consider what is being proposed. It should not happen, but it still continues to happen, that such orders are only produced on the date of the sentence hearing itself. The justification advanced, which is no justification, is almost always the same, namely pressure of work or that they thought someone else was dealing with the matter. It is not acceptable. But it did in fact happen here. However, realistically the defence team were prepared to cope with what was being proffered on that day. It does appear that much of what was being put forward was not opposed.