Ahmed, R v [2014] EWCA Crim 619

Case No 201203627 C3[2014] EWCA Crim 619
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
HIS HONOUR JUDGE CLIFTON
T20117520
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 1 st April 2014
Before
SIR BRIAN LEVESON PRESIDENT OF THE QUEENS BENCH DIVISIONMR JUSTICE KEITHMRS JUSTICE LANG DBE
Between
REGINACrownSHABIR AHMEDDefendantREGINA v.SHABIR AHMED
Mr S. Nichol (instructed by Platt Halpern) for Applicant for The Crown did not appearHearing Hearing date : 19 th March 2014
Judgment
[1]The Applicant renewed his application for permission to appeal against conviction and sentence, after refusal by the single Judge.[2]The Applicant was convicted at the Crown Court at Liverpool, on 4th and 8th May 2012, of sex offences against young girls in the Rochdale area of Greater Manchester. The offences and the sentences of imprisonment imposed were:a. Count 1A, conspiracy with his co-defendants and others to engage in sexual activity with children, contrary to section 1(1) Criminal Law Act 1977: 8 yearsb. Count 2, trafficking within the UK for sexual exploitation, contrary to section 58(1) Sexual Offences Act 2003 (“SOA 2003”): 8 yearsc. Count 3, rape of J, contrary to section 1(1) SOA 2003: 19 yearsd. Count 4, rape of J, contrary to section 1(1) SOA 2003(a specimen count in respect of 3 rapes): 19 yearse. Count 5, aiding and abetting Kabeer Hassan to rape J, contrary to section 1(1) SOA 2003: 19 yearsf. Count 6, sexual assault on a female, S, contrary to section 3 SOA 2003: 6 months[3]All the sentences passed were concurrent. Notification and disqualification orders were also made.[4]There were eleven defendants; nine of whom were convicted and two acquitted. All the convicted defendants appealed against conviction and some against sentence, but after refusal of permission by the single Judge, only this Applicant has renewed his application for permission to appeal.

Appeal against conviction

[5]The Applicant appealed against conviction on the ground that it was a reasonable inference to draw from the evidence that one or more jury members had improperly divulged details of the jury’s deliberations. Since these details were published on the internet by far right organisations, who were racially prejudiced against the defendants, it was likely that the juror/s who divulged the details had links or sympathies with those organisations. This raised a real possibility that at least some of the jurors were biased and the jury verdicts were therefore tainted and unsafe. The Judge erred in refusing to discharge the jury when these matters came to light during the trial. History[6]The charges against the defendants received extensive media coverage. Protests at preliminary court hearings by the British National Party (“BNP”) attributed a racial dimension to the charges as the defendants were of Asian origin and the complainants were not. A witness, the father of J, had joined the BNP as a result of his daughter’s experience, though he later resigned. For these reasons, prospective jurors were excluded if they indicated in response to a jury questionnaire that they were associated with the BNP or the English Defence League (“EDL”).[7]The trial began on 6th February 2012. The Judge warned the jury at the outset that they must not discuss the case outside the jury room, and only with their fellow jurors, and he repeated that warning on each occasion that they separated.[8]It was a complex trial with a substantial amount of evidence and so the jury was not sent out until 1st May. At the request of all counsel, the Judge directed that no verdicts were to be published in respect of any defendant until all the verdicts of all the defendants had been returned, to avoid the jury being subject to pressure from media reports and public demonstrations.[9]The jury separated at the end of the day on 1st May and jurors resumed their deliberations on 2nd May. The jury sent a note relating to Count 5, and another relating to counts 8 and 9. Both notes asked for a repeat of the accounts given by named complainants when interviewed by the police.[10]The Applicant, through his counsel, complained to the judge that one of the interpreters had spoken to the press about him. The Judge investigated this complaint with the interpreter who confirmed that she had discussed the Applicant’s conduct in court with a member of the press, but nothing more. The Judge warned both interpreters not to have any communication with the press.[11]The jury separated at the end of the day on 2nd May and jurors resumed their deliberations on 3rd May. The jury sent a note in the morning at 11.17 am relating to count 13, requesting a repeat of the account given by the complainant. Two more notes had been received by the time the court sat at 14.30, relating to counts 18, 19, 20 and 21, which requested copies of evidence.[12]On the afternoon of 3rd May, counsel informed the Judge of two postings on the internet about the jury’s deliberations:a. at 13.05 there was a post on the Facebook page of the ‘Infidels of Britain’ group saying “Seven Muslim groomer scum found GUILTY so far at Liverpool Crown Court”;b. at 13.53 there was a tweet by Mr Nick Griffin MEP, Chairman of the BNP, saying “Newsflash – seven of the Muslim paedophile rapists found guilty in Liverpool.”[13]At 14.30, the Judge sat in private and heard submissions from counsel on the significance of the postings and the appropriate next steps. With the consent of all counsel, he called the jury into court at 15.15, and asked the foreman whether they had reached any guilty verdicts, and if so, how many. The initial response was that they were “about 70% of the way through”. The Judge asked the jury to retire and to stop their deliberations. After consulting counsel, the Judge called the jury back into court and the court clerk asked the foreman if they had reached any guilty verdicts on which they were all agreed. The foreman replied “yes”. The court clerk then asked how many defendants they had reached guilty verdicts on, to which the foreman replied “12”. The foreman explained that he was referring to the number of counts, not the number of defendants. After retiring again to check the number of defendants, the jury returned at 16.27, whereupon the foreman informed the court that they had reached guilty verdicts on 7 defendants. The jury retired to the jury room at 16.28.[14]A series of tweets from Mr Griffin appeared on the internet between about 16.30 and 16.37: a. 16.30:
“Now doubt if info from Liverpool is right. I say again, even accused paedos are innocent until proven guilty.” b. 16.32: “The ‘convictions story’ is all over Facebook but may be a ploy by people sympathetic to the defendants.” c. 16.33: “Or trying to muddy water until after polling day. Political police in Liverpool capable of any deceit.” d. 16.36: “BBC just on phone. They swear blind that the jury still out in Liverpool and so no-one convicted.” e. 16.37: “But people there say jury still out on four and others will be sentenced next week.”
[15]It was common ground that jurors would not have been aware of the date fixed for sentencing, and it had not been mentioned in open court.[16]After hearing further submissions from counsel,

the Judge called the jury back into court and said to them:

“..Could I ask all of you to tell me, to assure me, that nothing that you have discussed in the jury room .. can have got out into the world in general? Nothing? Nothing whatsoever, by any means whatsoever?”
All the jurors replied “No”.

The Judge then asked:

“There isn’t any chance of anybody overhearing anything you might have been saying inadvertently outside the jury room?”
Again, all the jurors replied “No”.[17]The Judge consulted counsel in the absence of the jury. He said that, in the light of the jurors’ replies and their demeanour, he intended to proceed on the assumption that they were telling the truth and had acted properly. It was not possible for him to investigate the jury’s deliberations in any further detail. Defence counsel asked for further time to make an application to discharge the jury and so the Judge allowed the jury to separate for the night, instructing them that they were not to look at any news source, on the internet, television or newspapers.[18]On 4th May, the Judge sat in open court, but imposed reporting restrictions. The Judge refused applications by the defence to discharge the jury saying that he was satisfied that no juror had communicated the jury’s deliberations either deliberately or accidentally to anyone else, and therefore the question of bias did not arise. He considered he had made all proper enquiries. The Judge observed that the jury’s notes indicated that they were adopting a “perfectly reasonable, logical and unbiased approach to the evidence”. Having considered the arrangements which were in place, he did not believe that they had the opportunity to send any messages from the jury room. Communication from a juror was not the only possible explanation for the internet postings. He made reference to the later tweets by Mr Griffin, referred to by the crown.[19]The Judge’s attention was drawn to other postings on the ‘Infidels of Britain’ Facebook page. On 2nd May the jury’s retirement had been announced and the comments in response included “If they get away with this, the jury should suffer”. Further comments included a call to “Get down to Liverpool to show that paedo scum would not be tolerated”. It was submitted by defence counsel that these were threatening and put pressure on the jurors to return a guilty verdict. The Judge concluded that there was no evidence that any jurors had seen these posts or had felt intimidated.[20]At 11.49, the jury returned verdicts on fourteen counts. These included all the counts against the Applicant save for the count of conspiracy, which the Judge had advised them to leave until last. There were twelve verdicts of guilty; two of ‘not guilty’. The Crown had offered no evidence on count 12.[21]The jury separated at the end of the day, and resumed their deliberations on Tuesday 8th May (Monday 7th May was a public holiday). On 8th May they returned unanimous guilty verdicts on count 1A and count 22. On Count 1B, they returned unanimous guilty verdicts on three defendants, a ‘not guilty’ verdict on one defendant and they were discharged in respect of the final defendant because they could not reach a verdict on which at least a majority were agreed. On counts 8, 18, 19, 20 and 21 they returned majority ‘not guilty’ verdicts.[22]After the appeals were lodged, this Court gave directions to the CCRC to investigate the allegations of jury irregularities by:a. obtaining witness statements from all identifiable individuals who, before verdicts were returned, purported to know and publish what any of them was;b. examination of all appropriate hardware, software and records relating to (a);c. obtaining witness statement(s) from jury bailiff(s) as to confiscation from jurors in retirement of communication devices;d. questioning court staff about possible opportunities for a member of the jury to have disclosed the number of defendants in respect of which decisions had been reached before returning verdicts.[23]The CCRC appointed an officer from Greater Manchester Police to act as investigator and she asked Mr Griffin to attend a voluntary interview. He declined. The Crown Prosecution Service advised that that there were insufficient grounds on which to arrest him for contempt of court, which meant the police had no opportunity to interview him as a suspect. The only information regarding Mr Griffin’s source was from an interview he gave to BBC News on 9th May when he said that the information came to him from three different people who were outside court demonstrating. Mr Griffin also sent a tweet on 9th May as follows:
“Note for journalists & paedo’s lawyers: inaccurate leak re convictions last week came from a court or police officer, not a juror. Probably ploy by defence. Attempted Get Out of Jail Free Card.”
[24]Greater Manchester Police identified a person called John Stuart Shaw as the possible leader of ‘Infidels of Britain’, which is apparently a group with no defined structure. When interviewed he denied responsibility for the posts and said he did not know who was responsible. He said he did not know who had administrator rights for the Facebook page and commented that the page was frequently restarted, owing to fallings out within the ‘Infidels of Britain’ group.[25]Neither Facebook nor Twitter (both based in the United States of America) co-operated by disclosing the data relating to the accounts used. The CCRC concluded that, even if such data were disclosed, it would be unlikely to shed light on the provenance of the information posted on the internet.[26]The CCRC took statements from the court clerk and usher and investigated the arrangements at the court. The jury was designated as a “secure” jury, to which special procedures applied. Jurors remained in the jury room at all times when not in court. Toilet facilities and refreshments were within the jury suite. Meals were provided from the canteen and smoking breaks were escorted. The jury room was on the third floor and people outside the building would not have been able to see in through the windows. The jury room was kept locked by the usher and cleaners were instructed not to enter. Only the court security staff would have access to the room after hours. Throughout their deliberations, jurors were asked to hand over all mobile telephones, laptops and electronic devices and they were locked away in a safe, and only returned when the jury separated each day. At that time jurors were not searched (the practice has since changed).[27]Because of the presence of demonstrators outside the court, and earlier outbreaks of violence against defence legal representatives, a police cordon was in place around the court. Special transport arrangements were made so that jurors arrived to and from the court on a coach accompanied by an usher, from a designated collection and drop off point some distance from the court. The coach drivers were not able to speak to the jurors.[28]The court clerk said that she did not see or hear anything suspicious during the trial. The court usher said that the jury had been “really professional and a pleasure to look after. There wasn’t anyone that struck me as acting strangely or doing any activity that would be considered suspicious”.[29]The CCRC concluded:
“It would appear, therefore, that the only opportunity for a member of the jury to have communicated with a third party during their deliberations would have been if they had wilfully retained a mobile phone or communications device, despite having been asked to hand in all such items. Even in those circumstances .. and although access to private toilet facilities was apparently provided from the jury room, it would seem unlikely that a juror could have conducted such a clandestine operation without being noticed by fellow jurors. Nothing has emerged from the enquiries which have been conducted pursuant to the Court’s directions which suggests to the Commission that members of the jury or security staff engaged in any in appropriate activity as regards the disclosure of the jury’s verdicts or otherwise.”
Conclusions[30]We have carefully considered the material facts and the results of the CCRC’s investigation.[31]We agree with the conclusions of the CCRC. In our judgment, it is not possible to draw the inference from the material before us that a juror deliberately communicated information about the jury’s deliberations to someone outside the jury whilst at court. The CCRC investigation shows that extensive precautions were taken to protect the integrity of the jury in this trial which made it extremely difficult for jurors to communicate in secret with anyone outside the jury room. It is fanciful to imagine that a juror was covertly signalling from the window or that a juror was able to make clandestine telephone calls on a hidden mobile phone, from the toilet or elsewhere, without being overheard or detected by other jurors or court staff. The court clerk and usher, who had worked with the jury for three months, found no reason to suspect any juror of impropriety or unusual behaviour.[32]The Judge apparently accepted the Crown’s submission that the information posted on the internet could have derived from discussions amongst those at court trying to guess the state of the jury’s deliberations, perhaps from the sequence of jury notes. In our view, it is improbable that guesswork could have resulted in such an accurate prediction of the jury’s guilty verdicts. We do, however, accept that the information in Mr Griffin’s final tweet at about 16.37 on 3rd May (“jury still out on 4 and others will be sentenced next week”), most probably originated from someone connected to the prosecution or defence teams, or the interpreters. The court was sitting in private; the jury had only just left court after indicating that they had found seven defendants guilty; and sentencing dates were not known to the jury and had not been mentioned at any stage in open court.[33]We accept it is possible that ‘loose talk’ by jurors outside the jury room resulted in information about the jury’s deliberations being disclosed to outsiders. It is quite possible that the jury had decided upon guilty verdicts in respect of seven defendants by the time they separated on the afternoon of 2nd May. Jury deliberations are, of course, confidential, and jurors are routinely warned not to discuss the case outside the jury room, whether with fellow jurors or anyone else, including members of their family.[34]Such conduct, even if inadvertent, would amount to a jury irregularity. However, we do not consider that it would be sufficient to render the convictions unsafe. In our view, taken on its own, disclosure of the jury’s progress on the counts would not have compromised the jury’s independence or impacted on the jury’s ability to remain faithful to their oath or affirmation to “faithfully try the defendant and give a true verdict according to the evidence” (see Criminal Practice Direction 39M.2). The Judge, legal representatives and court staff were unanimous in the view that, throughout the lengthy trial, the jury had participated appropriately in the trial process and appeared to be assessing the evidence conscientiously.[35]The Applicant alleges apparent bias on the part of the jury, because the information was disseminated by far-right organisations hostile to the defendants. We have applied the test set out in Re Medicaments [2001] 1 WLR 700, as amended in Porter v McGill [2002] 2 AC 357, namely, whether, on an objective appraisal, the material facts give rise to a legitimate fear that the jury might not have been impartial, asking ourselves whether a fair-minded and informed observer would conclude that there was a real possibility that the jury was biased. A similar test applies under Article 6 of the European Convention on Human Rights, namely, whether there are sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the jury: see Gregory v UK (1998) 25 EHRR 577; Sander v UK (2001) 31 EHRR 44.[36]There was ample evidence to support the Judge’s view that the jury was adopting a “perfectly reasonable, logical and unbiased approach to the evidence”. Judging from the content of the jury notes and the sequence of the verdicts, they progressed through the counts in the order recommended by the Judge, and carefully considered the evidence in relation to each count. The verdicts, taken as a whole, appeared rational and consistent with the evidence. The Judge observed at the end of the trial that the jury had performed their task with “painstaking care”.[37]The jurors had all completed questionnaires confirming that they were not associated with the BNP or English Defence League and there was no evidence to suggest that any juror had withheld information about such an association. The fact that the jury returned unanimous “not guilty” verdicts on two counts on 3rd May was at odds with the allegation that there was one or more racially biased supporter of a far- right organisation on the jury, as such a person would presumably not have been party to any “not guilty” verdict.[38]Like the Judge, we have concluded that there was simply no evidential link established between the jury and the far-right organisations which posted the information on the internet. Therefore we do not consider that, on the material facts, a fair minded and informed observer would conclude that there was a real possibility that the jury was biased, nor that there were any objectively justified or legitimate doubts about the impartiality of the jury.[39]No criticism can be made of the careful and fair manner in which the Judge conducted the necessary enquiries. He was not permitted to ask the jury about the content of its deliberations; only to investigate any irregularity. We agree with his conclusion that it was not necessary to discharge the jury and we consider that he gave appropriate directions to the jury throughout the trial regarding their conduct.[40]We do not accept Mr Nichol’s criticism of the CCRC’ s investigations as inadequate. In our view, there was nothing more that the CCRC could reasonably have done.[41]The safety of the convictions is not in doubt and therefore the application for permission to appeal against conviction is refused.

Appeal against sentence

[42]The Applicant seeks permission to appeal against the sentences of 19 years on the counts of rape on the ground that they are manifestly excessive.[43]The Applicant was aged 55 when he committed the sex offences against the complainants, who were young teenage girls. He came to know the complainants because of their frequent visits to the takeaway restaurants where he worked. Sex offences took place at both restaurants. Although Mr Nichol was correct to say that the offences of trafficking and rape against J. occurred over a period of a few weeks in July and August 2008, the Applicant’s association with the complainants had existed over a significantly longer period. He first met J in 2007, and through her, the other complainants. The assault against S occurred in early 2008, at the restaurant which he left in March 2008. S was 15 at the time of the assault.[44]The complainant J was also only 15 when the offences were committed against her. After plying her with alcohol, the Applicant raped her on four separate occasions, using coercion and sometimes force. That was the basis of count 3 and also count 4, which was a specimen count covering three rapes. The Applicant also trafficked her, forcing her to have sex with other men whom she did not know, which was the basis of count 2. On another occasion he took her to his nephew, Hassan, who also worked with him, so that he could rape her. That was the basis of count 5.[45]In the sentencing guidelines, the starting point for repeated rape of the same victim over a course of time, is 15 years custody and the sentencing range is 13 to 19 years. The use of alcohol, coercion and force are aggravating factors.[46]The Judge explained that he was passing concurrent sentences, but that he had increased the sentences in accordance with the totality guidelines to reflect the overall criminality of the conspiracy and the trafficking offences as well. These were offences of the utmost gravity, involving the exploitation and abuse of vulnerable young girls. The Applicant was convicted of participating in a conspiracy with 9 others to engage in sexual activity with three girls under 16 years of age. In these circumstances, the Judge was entitled to pass a sentence at the top of the range. A sentence of 19 years, to reflect the totality of the Applicant’s criminal conduct, was neither wrong in principle nor manifestly excessive.[47]Permission to appeal against sentence is therefore refused.[48]The Sexual Offences Amendment Act 1992, section 1 applies and so no matter relating to the complainants shall be included in any publication if it is likely to lead members of the public to identify those persons.