R v Asfan Ber Mirza [2025] EWCA Crim 482

[2025] EWCA Crim 482Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 27 March 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BRYANHIS HONOUR JUDGE ANDREW LEES(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
ASFAN BER MIRZA_________NON-COUNSEL APPLICATION_________APPROVED JUDGMENT
[1]On 25 August 2023, in the Crown Court at Leicester (Mr Recorder Richard Davis), the applicant was convicted of stalking (without violence), contrary to section 2A Protection from Harassment Act 1997. He was acquitted of stalking with violence, contrary to section 4A of the Protection from Harassment Act 1997. On the same date (before the same Court), he was sentenced to 6 months’ imprisonment. The Court also made a restraining Order for 10 years.[2]The applicant, who is a litigant in person, renews his application for an extension of time (of 171 days) in respect of conviction, for leave to appeal against conviction and representation order following a refusal by the Single Judge (Rt. Hon. Sir Gary Hickinbottom).[3]Turning to the facts of the alleged offending. The complainant in this case is Mr Abdulrehman Ussenbai. On 14 October 2022, police attended the complainant’s home address on Taurus Close, Leicester, following his complaint that he was being stalked by a male.[4]The prosecution case was that during the period 14 to 18 October 2022, the applicant had contacted or attempted to contact the complainant on multiple occasions and which he knew or ought to have known amounted to harassment/stalking.[5]To prove the case, the prosecution relied on the evidence of the complainant (Mr Abdulrehman Ussenbai) - His evidence was that he knows the male complained of as “Asfan Mirza” because the male’s father’s shop (MS Discounts) is opposite to theirs. The male has black hair, normal Indian skin and he always wears a cap. They first met in 2016 when they were purchasing their shop. It was around 8:00 am on 14 October 2022, the complainant went out onto his balcony and saw the male was standing at their door. He (the male) had a hoodie over his head but nothing over his face. He was there for 10-15 minutes. He asked if the complainant had stolen his car and said that he had £10,000 in the car. He made a demand for the money. The complainant said that he made no reply. The male then started swearing, texting and making calls to the complainant’s mobile and continued to make demands for the money. He also said “I will climb and then you won’t have any space to run away”. The complainant blocked the caller’s number.[6]On 18 October 2022, his phone rang again from an unknown number. His son answered it and then passed it to the complainant’s wife. The caller again said some swear words and made threats. The complainant attended an identification parade.[7]The police also relied upon the evidence of Rizwana Ussenbai. Her evidence was that on 14 October 2022, she saw the male outside her door. It was Asfan Mirza. He had a black hoodie and black joggers on. She could see his face. She recognised him as the son of the person who owns MS Discounts shop. He demanded money and made threats to her husband. Her husband was very scared. On 18 October 2022, there were further calls. When she gave her statement, she did not remember the date but did so now.[8]Other evidence relied upon by the prosecution included that of an Azra Esmail who gave evidence of a call being received by the complainant and PC Joshua Marshall, whose evidence was that he attended at the complainant’s address on 14 October 2022, around midday, and saw the complainant in a panicked and emotional state. The complainant identified the male complained of as “Asfan Mirza”. Whilst in attendance, the complainant received a telephone call from a private number. The caller made a threat. The officer tried to speak with the caller but the caller refused to provide his name.[9]There was also expert evidence in relation to the cellular phone data and records linking the applicant to the area and calls made to the complainant.[10]The defence case was denial. In police interview, the applicant provided a prepared statement stating that he had loaned his phone during this period to a Naeem Gul. He denied using his phone. The applicant represented himself at trial and gave evidence having dispensed with his counsel on the first day of the trial. However he did have the benefit of the court-appointed advocate for the purposes of cross-examining the prosecution witnesses (the complainant and his wife). The applicant made admissions in relation to the call taken by PC Marshall, and he said that he had lied in the police interview about his phone as that was the safest way of telling the police about Naeem Gul. The complainant had been unable to positively identify the applicant in the identification evidence. The issue for the jury was whether they could be sure that the applicant had committed the stalking, as alleged.[11]The applicant’s grounds of appeal, which were drafted by the applicant himself, are as follows:-(1) An issue in relation to the cellular evidence - it was alleged that the “Judge allowed a malicious phone call of the 18 October 2022 to emergency service to be used in court”.(2) An issue in relation to the evidence of a prosecution witness - the “Judge allowed PC Joshua Marshall to lie in court about his attendance on 14 October 2022 at a house on Taurus Close”.(3) An issue in relation to the examination of a witness - in that “Naeem Gull’s statement was not questioned by the prosecutor following a statement of involvement”.(4) A dispute about the complainant’s evidence - it was alleged that “Abdul passed the defendant’s phone number to Gul for death threats”.(5) An issue regarding evidence allowed by Judge - the “Judge did not accept that the house (21 Taurus Close) to be the defendant’s family address belonging to Reshma, Rashid, Irfan”.(6) A witness not called by the prosecution – “Prosecutor refused PC Joshua Marshall colleague PC Stott to be a witness of police exposure”.(7) “The claimed victim of malicious phone call to emergency service are [illegible word] and have lack of understanding in United Kingdom”.(8) There was said to be an issue in relation to the guilty verdict on the alternative charge.(9) There was said to be an issue in relation to the court appointed counsel in that they left court before the verdict.(10) It was stated that, “PC Joshua Marshall claims he suffer from Dyslexia on (MSN) email was forwarded to Chief Rob Mason”. (The infelicities in the grounds of appeal in terms of grammar are in the original.)[12]Like the single judge before us, and having considered the grounds and the documentation before us, we are satisfied that there are no arguable grounds for an appeal against conviction, and we too consider that your grounds are wholly without merit.[13]We gratefully adopt the reasons given by the single judge, the Right Honourable Sir Gary Hickinbottom), with which we respectfully agree:- “I have considered the papers in your case and your grounds of appeal. You were charged with a single count of stalking Abdul Ussenbai with fear of violence. You dispensed with your legal team on the first day of the trial, and continued unrepresented. You were found guilty of stalking simpliciter (i.e. without the relevant element of fear of violence having been proved). That was an appropriate and lawful alternative verdict. You seek to appeal on ten grounds. You have drafted these grounds. I should say at the outset that, whilst I am sensitive to the challenges facing those who represent themselves in this court, some of your grounds are difficult to understand and lack coherence; whilst others are no more than a re-run of the evidence and a disagreement with the findings of the jury on the evidence before them. I deal with the grounds below, in turn. Ground 1:
‘Judge allowed a malicious phone call on 18-10-2022 to Emergency Service to be used in court. Cell site location is relevant.’
Telephone logs and cell site data from the relevant phone were part of the evidence relied on by the prosecution. It was the prosecution case that you made these calls, resulting in the complainant making an emergency call to the police because he was in fear. The Judge did not arguably err in any respect in relation to this evidence. Ground 2:
‘Judge allowed PC Joshua Marshall to lie in court about his attendance on the 14-10-2022 at a house on Taurus Close.’
PC Marshall gave evidence, and you cross-examined him. His credibility was for the jury to consider. It is not legitimate ground of appeal that the jury disagreed with your view of the evidence. Ground 3:
‘Nayeem Gull’s statement was not questioned by the prosecutor following a statement of involvement.’
Nayeem Gull gave evidence during the trial, the Crown asked questions about the stalking (including dates) and you were given an opportunity to cross-examine, which you did not take. Again, the Crown did not err in how they proceeded. Ground 4:
‘Abdul passed Defendant phone number to Gul for death threats.’
This was a matter in issue, upon which Abdul Ussenbai was cross-examined and you gave evidence. Ground 5:
‘Judge did not accept house 21 Taurus Close to be the defendant family address belonging to Reshma, Rashid, Irfhan.’
This was not a matter for the Judge: it was a factual matter for the jury. Ground 6:
‘Prosecutor refused PC Joshua Marshall’s colleague PC Stott to be a witness of Police exposure.’
PC Scott was not a witness whom you required to attend trial. Ground 7:
‘The claimed victim of malicious phone call to emergency service are [illegible word] and have lack of understanding in United Kingdom.’
I do not understand this - nor, apparently, does the Crown - but it does not appear to raise any possible ground of appeal. Ground 8:
‘A jury stumble into a guilty plea following a second verdict they did not expect due to the house being a family address.’
Following an appropriate direction from the Judge, you were found not guilty of stalking with fear of violence contrary to section 4A of the Harassment Act 1997, but guilty of stalking simpliciter under section 2A. That alternative verdict is available under section 6 of the Act. Ground 9:
‘Defendant counsel Natalie Goffe left the court room before a verdict and no-one was to challenge the change of legal advisor decision.’
Ms Goffe of the Public Defender Service was appointed for the limited purpose of cross-examining the complainant and his wife following your dispensing with your legal team and the Judge making an order under section 36 of the Youth Justice and Criminal Evidence Act 1999 prohibiting you from cross-examining them. After they had given evidence, you were given another opportunity of having a legal representative for the rest of the trial, which you declined. That explains why Ms Goffe was not present at the verdict, when you remained unrepresented: she had completed her job. Ground 10:
‘PC Joshua Marshall claims he suffers from Dyslexia on (MSN) email was forwarded to Chief Rob Mason.’
I do not understand this - nor, apparently, does the Crown - but it does not appear to raise any possible ground of appeal. In addition to these grounds: (i) You seek to call Irfhan Pathan to give evidence on your behalf; but you did not seek to call him at your trial and do not suggest any evidence he might give, let alone evidence that might assist your appeal. (ii) I have considered all the papers in your case, including the summing up - which was full and fair. The papers do not suggest that you have any ground of appeal with any more merit than those you have put forward as set out above; or that the trial process was other than entirely fair; or that your conviction is arguably unsafe. Your grounds are not only unarguable, they are wholly without merit. Your application for leave to appeal is late. However, given my views on the merits of your grounds of appeal, it is unnecessary for me to consider reasons for the delay because I would refuse your application for an extension on the basis of lack of substantive merits in any event. I simply refuse all your applications.” Ground 4:
‘Abdul passed Defendant phone number to Gul for death threats.’

In addition to these grounds:

[14]We accordingly dismiss the application for an extension of time and application to seek leave to appeal against the stalking conviction.[15]As the Vice-President of the Court of Appeal Criminal Division observed in R v Gray & Ors [2014] EWCA Crim 2372:
“… the only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.”
We consider this is just such a case.[16]The applicant has already served his sentence in relation to this matter, and we consider that it is just, reasonable and appropriate to make, and do make, an order under section 18(6) of the Prosecution of Offences Act 1985 for the applicant to pay the reasonable cost of the transcript in this case in a sum of £151.25, which such sum is to be paid within 28 days.