Khan, R. v [2015] EWCA Crim 1816

[2015] EWCA Crim 1816Case No 201401869 C2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
His Honour Judge Radford
Snaresbrook Crown Court
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 20/11/2015
Before
LORD JUSTICE BURNETTMR JUSTICE KENNETH PARKERMRS JUSTICE ELSABETH LAING DBE
Between
ReginaRespondentAdeel KhanAppellant
David Josse QC (instructed by EBR Attridge Solicitors) for AppellantJonathan Sandiford (instructed by CPS Special Crimes Division) for RespondentHearing Hearing dates: 11 November 2015
Judgment
[1]The appellant appeals with leave of the single judge against a sentence of 15 years detention in a Young Offender Institution imposed on 17 April 2014 in the Crown Court at Snaresbrook by His Honour Judge Radford following his earlier conviction on 14 March of the attempted murder of Ismail Khan. The appellant also renews his application for leave to appeal against conviction relying exclusively upon fresh evidence which is said to undermine the safety of the conviction. Lengthy grounds of appeal against conviction were rejected by the single judge. They focussed on alleged shortcomings in the conduct of the defence. None of those grounds is relied upon any longer.

The Conviction Application

[2]These proceedings came before the full court on 12 June 2015. The “fresh evidence” comprises a statement referring to a short exchange of BlackBerry electronic messaging between Sohil Choudhury, who was a witness for the prosecution at the trial, and someone we shall call Jane. At the hearing we made an order that there shall be no publication of any material that identifies who Jane is or provides details which could lead to her identification as being concerned in these appellate proceedings. No detail is available in Jane’s statement or in a statement from the appellant’s solicitor reporting a further conversation with Jane of when the exchanges are said to have occurred. The appellant submits that the exchanges suggest that Choudhury falsely stitched him up as responsible for the attack. He relies also on a number of images said to have been taken from Choudhury’s Instagram profile, similarly undated, which suggest that he had a criminal lifestyle. The evidence produced is limited to screenshots of the material exchanges and pages which were apparently downloaded via a school computer. There was no evidence available in June to provide any credible link between that evidence and Choudhury himself. It was in those circumstances that the matter was adjourned for further investigation. By paragraph 2 of its order 12 June the court “Directed the applicant within a period of ten days, to present to the Crown Prosecution Service (CPS) such material as would enable the CPS, through the offices of the police, to look at the material with a view to assisting in the investigation of its alleged provenance”[3]The grounds of appeal are:
“i. The evidence produced by [Jane] which indicates that [the appellant] had been falsely implicated in the attack should be before the Jury on any re-trial of the case that may be ordered. ii. The evidence showing that [Choudhury] was involved in the sale of drugs would have allowed the defence to put forward a credible motive to lie, and to implicate the Applicant. In addition such material would have assisted the making of a s100 application.”
Mr Josse QC, who appears for the appellant, has not pressed the second ground because it was squarely before the jury that Choudhury was a drug dealer and it was also clear from their verdicts relating to other defendants that they did not accept much of his evidence.[4]The court’s concern in June was that in the absence of any demonstrable link between Choudhury and the material in the screenshots, the evidence could not carry the proposed appeal anywhere. We note that the Crown’s argument is, come what may, that the material does not undermine the conviction. The two issues which arise on the relevant statutory provisions in the Criminal Appeal Act 1968 [“the 1968 Act”] relating to fresh evidence may be summarised as: i. Is the evidence reliable or as section 23(2)(a) of the 1968 Act puts it “capable of belief”; and ii. Does it appear that it may afford a ground of appeal: section 23(2)(a).[5]On 1 December 2014 the appellant’s solicitor was contacted by his mother who indicated that a witness, Jane, had fresh evidence to give. A colleague, Krystle O’Donnell, made arrangements to see Jane. They met on 19 and 30 December. At the second meeting some documents were provided to Ms O’Donnell with the balance being sent on 13 January 2015. Thereafter a statement was drafted and sent to Jane for signature. It was returned on 2 February. There appears to have been no attempt to secure any device which might provide proper evidence in the sense of being able to demonstrate that the messages and images of which Jane had provided screenshots came from Choudhury.[6]In her statement Jane said that she was a Facebook friend of Choudhury. She had seen a photograph on his Facebook page which included someone she knew as “Ads” who she had not seen around for a while and asked Choudhury who he was. She had never spoken to Ads. Why she had an interest in Ads is unexplained. Ads is the appellant. The first exchanges were via Facebook. A single page has been copied which does not contain the whole exchange but includes Jane saying “I need to talk to you about something rt please”. RT usually means “real talk”. The screenshot shows a BlackBerry PIN number in the reply and records, “Sent 6 Apr”. That cannot be a reference to 2015. If it refers to 2014, it would appear that Jane initiated this contact between the dates of conviction and sentence. There is nothing on the screenshots of the BlackBerry messaging exchange to indicate when it occurred. In her statement Jane indicated that the BlackBerry exchange followed the Facebook exchange. She exhibited the BlackBerry messages and added “I do not remember the exact time of this conversation but it was a few months ago.” She produced “examples” of photographs of Choudhury from his Instagram profile supporting what she said were his boasts of “cannabis, large amounts of money and weapons”. Rather enigmatically she added “I have given these documents to a previous solicitor but I do not know if they were used”. There is no explanation of that anywhere in the material before us.[7]Following the hearing in this court in June, Ms O’Donnell met Jane. Her statement explains Jane’s evidence relating to both the Blackberry and her Facebook account. At that meeting the screenshots already referred to were provided by Jane to the solicitor on a USB stick with an explanation that they had been downloaded using a school computer. Jane said that her BlackBerry broke in about February 2015 and was taken from her by her parents. She could not recall the phone number. She thinks it was a pay as you go phone and was registered with another relative. Jane could not remember her PIN or the associated messaging account. The timing and circumstances in which she downloaded the screenshots to a memory stick from a school computer and how the images got onto that computer are not explored or explained. So far as her Facebook account was concerned, Jane said she used Facebook until about February or March this year. The implication is that she stopped doing so then, although there is no indication why. She provided her user name and an associated email address, but could not remember her password. Jane said she had not deleted any content from her Facebook account.[8]Jane’s parents were unaware of her contact with the solicitor and would not have approved of her contacting Choudhury via BlackBerry or social media.[9]No doubt the expectation of both this court and the parties was that the BlackBerry would be provided and subjected to proper analysis; and also that Jane would enable access to her Facebook account to provide some prospect of an investigation whether the images said to come from Choudhury’s Facebook and Instagram postings in fact do so. PC Mark Evans, a specialist investigator of electronic evidence, was made available to examine whatever was produced by the appellant in compliance with this court’s order. He made a statement which was sent to the appellant’s solicitors under cover of a letter from the Crown Prosecution Service dated 15 August 2015.[10]He identified the issue he was concerned with as whether the BlackBerry messages came from Choudhury. He observed that BlackBerry are ‘not very helpful and have in the past ignored all requests.’ He then made a series of points relating to the BlackBerry. 1. A BlackBerry Messenger account is easy to set up by buying a pay as you go BlackBerry. A BlackBerry Messenger account is unique to the phone, but anyone can set up a BlackBerry Messenger server and use it to transfer messages untraceably. 2. Photographs of the kind shown in the screenshots can be copied in from various sources, which include Facebook and other social media sites or uploaded from the internet. The screenshots appear to be from a mobile phone, but carry no date or time, and no confirmation of who the message is from. 3. There is no evidence that Choudhury sent the messages. Neither the fact that the account appears to be in Choudhury’s name, nor the fact that he is in the pictures provides such evidence. 4. Without access to the telephone or to the BlackBerry Messenger account, it is not possible to check which BlackBerry Messenger PIN number was used to send any message, or when it was sent, or to whom that PIN belonged. A person can set up many accounts and ‘talk’ to him or herself. 5. The reference to a PIN in the body of the message does not take matters further. It appears to have been superimposed on the message, rather than being part of it. The fact that the PIN is in a message does not show that it is the PIN from which the message came. Choudhury’s BlackBerry Messenger PIN would be known to anyone who communicated with him via BlackBerry.[11]PC Evans found Jane’s Facebook account but it was completely locked down. All that was visible was the opening page with a photograph posted on 12 April 2014. No content was visible.[12]This survey of recent events and the nature of the evidence relied upon by the appellant leads to the conclusion that matters are no further forward than they were in June. It is in those circumstances that Mr Josse applies for the application to be adjourned once more to enable further investigations to be undertaken. He submits that an adjournment is necessary to allow one of three things to happen: for this court to(i) exercise the power conferred by section 23A of the 1968 Act to direct the Criminal Cases Review Commission [“CCRC”] to investigate the evidence of Jane and report back to the court, before deciding the question of leave; or(ii) direct the CPS to make further inquiries; or(iii) authorise public funding to enable the appellant’s solicitors to make further inquiries. Mr Josse submits that the first of these options is the most appropriate in the circumstances of this case.[13]The scheme of section 23A allows the Court of Appeal to direct the CCRC to investigate in connection with an application for leave to appeal against conviction. It may do so if the matter to be investigated is relevant to the determination of the application and ought, if possible, to be resolved before the application is determined. Further, that the matter cannot be resolved without an investigation by the CCRC. The “matter” which Mr Josse invites us to refer for investigation is the question whether the BlackBerry messages and other social media content came from Choudhury. If the CCRC route were not adopted, it is the same matter that he submits needs investigation by either the CPS or solicitors.[14]We see an insuperable difficulty with any and all of these suggestions. Jane has provided a series of screenshots but the lack of supporting information is such that any meaningful investigation is impossible. Mr Josse submits that the language of PC Evans does not conclusively shut out the possibility that BlackBerry itself might be able to help and inquiries might be made of Facebook. The lack of response PC Evans reports is familiar to the court. Both BlackBerry and Facebook are American corporations, which further circumscribes the scope for seeking assistance. But in any event, the absence of critical information to identify the relevant accounts provides an effective block.[15]We are not persuaded that a further adjournment is justified to allow further investigation of the authenticity of the screenshots because there is no reason to suppose that it would advance matters at all.[16]Mr Josse advances a subsidiary argument, namely that we should adjourn to enable Jane to attend to give evidence orally de bene esse to help inform the question whether her evidence is credible, albeit that she would be unlikely to shed any light on the authenticity of the communications she says she received. Mr Sandiford, for the Crown, submits that would be a pointless exercise because Jane cannot deal with the important question of authenticity, even if her evidence is otherwise capable of belief.[17]The circumstances in which Jane’s evidence came to light, coupled with the loss of the phone and memory failures regarding PIN numbers, passwords etc for both BlackBerry and Facebook coupled with the striking lack of detail in her statement leads us to doubt whether her evidence is capable of belief. But it is unnecessary to reach a conclusion on that question because the fundamental problem with the evidence, canvassed before the court in June, remains. The screenshots could not be admitted as second-hand evidence from Choudhury because of the impossibility of establishing that he was the author of their content. For the purpose of section 23 of the 1968 Act that content does not appear to be reliable.[18]We decline the application for an adjournment. Mr Josse realistically submits that absent the adjournment he is not in a position to advance the application for leave to appeal against conviction. We agree. In those circumstances, it is unnecessary to explore in detail the alternative submission advanced by Mr Sandiford, namely that the very short extracts from the BlackBerry messages relied upon (if from Choudhury) do not support the contention that Choudhury falsely accused the appellant of involvement in the attack. It is sufficient to record that there is substance in that submission. Additionally, Mr Sandiford reminded us that the Crown’s case against the appellant did not rely at all upon the evidence of Choudhury. His identification of the appellant came as a surprise. He had not identified him in either of his ABE interviews and did not mention him to the police as being involved in the attack upon Ismail Khan. There was powerful evidence from the victim who identified the appellant from an unusual scar on his lip and nose (visible despite wearing a head covering) and striking gait when he ran away. The appellant’s alibi was demonstrated to be false. Cell-site evidence placed him at the scene and his telephone ceased to be used straight after the attack and was then disposed of. This was a strong case without Choudhury.[19]The application for leave to appeal against conviction is refused.

The Sentence Appeal

[20]Ismail Khan, who was 15, was attacked with a hammer in a residential street in East London on the evening of 7 October 2012 by two assailants who had covered their heads. They ran off. He was with Choudhury. Ismail Khan was struck a number of times and suffered a fractured skull in three places. The appellant had just passed his seventeenth birthday. He and Ismail Khan were both pupils at Kingsford Community School. The year before Ismail Khan and the appellant’s younger sister had formed a relationship of some sort and went missing for 24 hours. There was concern that the appellant might seek retribution against Ismail Khan. A meeting was arranged which involved teachers, the police, both sets of parents and two boys. The meeting was heated and the appellant threatened Ismail Khan.[21]The head injury was serious and required extensive surgical intervention with substantial short-term problems with walking, blurred vision and loss of hearing. Those resolved but, as the judge recorded, Ismail Khan suffered “long term effects in terms of the psychological effect on his personality and his ability to enjoy life, to progress in his education, as has been said so clearly in the statements, the victim personal statements that I have read and considered.” As is so often the case with head injury, the immediate physical consequences resolve or substantially diminish but long-term significant psychological, personality and intellectual problems remain.[22]This was a planned revenge attack about a year after the incident which had offended the appellant. The appellant continued to deny the offence after his conviction. The mitigation available to him was that he was only 17 when he committed the offence and that he had no previous convictions. Mr Josse submits that in arriving at a sentence of 15 years the judge failed to give sufficient weight to the youth of this appellant and, although reciting the background, failed to appreciate that there were cultural issues in play which must have imposed subtle pressure on the appellant to do something.[23]The prosecution had advanced this case before the jury on the basis that it was “an attempt at a so-called honour killing”. The qualification “so-called” is very important. Normally when the word “honour” is used it conveys a sense of something noble or worthwhile. Attacks on women or girls, or the boys or young men with whom it is said they have behaved inappropriately, have nothing to do with honour. They are vile crimes, nothing less. We do not accept that an adult committing a revenge attack of this sort could suggest that such motivation provided any mitigation whatsoever. The position may be less clear-cut with a child or young person, just as it is when sentencing judges are dealing with young or vulnerable offenders who have genuinely been put under tangible and substantial pressure into committing any crime by identified family members or older friends. In this case there is no evidence at all that the appellant was put under any pressure to do what he did. On the contrary, when the events involving his sister and Ismail Khan occurred the previous year the evidence suggests that the pressure exerted was entirely the other way, including by his parents. A vague appeal to “cultural pressures” cannot assist any more than it would, for example, were a 17 year-old to beat someone up in a revenge attack for a perceived insult to his girlfriend and then said his response was the normal way of dealing with such matters in his family and social circles.[24]The judge directed himself correctly by reference to the Definitive Guideline relating to attempted murder. Mr Josse accepts that the judge located this offending at the right place within the guideline. This was a level 2 offence on the cusp between the bracket appropriate for “serious and long-term harm” (17 – 25 years’ custody) and “some physical or psychological harm” (12 – 20 years’ custody). The age of the victim was an aggravating factor and, as the judge recognised, the age of the appellant a mitigating factor. In arriving at a sentence of 15 years’ detention it is apparent that the judge allowed a significant discount to reflect the appellant’s youth. We do not agree that the sentence can properly be described as manifestly excessive. It was an appropriate sentence for this attempted murder. Conclusion[25]We dismiss both the application for leave to appeal against conviction and the appeal against sentence.