Neutral Citation Number: [2008] EWCA Crim 2565
Case No: 2008/01114/C2, 2008/02014/C2, 2008/04771/C2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

19 November 2008
Before :

LORD JUSTICE MAURICE KAY
MR JUSTICE TEARE
and
HIS HONOUR JUDGE PATIENCE (SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between :

	Regina		
	- v -		
	Mohammed Ishaq
Shiraz Ali
Mohammed Sultan

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Mr Tom Bayliss QC for Ishaq
Mr Peter Martin for Ali
Mr Nadim Bashir for Sultan
Mr Ieuan Bennett for the Crown

Hearing date : 29 October 2008
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Judgment
Lord Justice Maurice Kay  : 
1.	On 3 August 2007 in the Crown Court at Cardiff Mohammed Ishaq, Shiraz Ali and Mohammed Sultan were convicted of two offences of causing grievous bodily harm with intent.  Ishaq is the uncle of Ali and Sultan.  The first offence named Martin Roberts as the victim and intended victim.  The second offence named Suzanne Shepherd as the victim but on the basis that the intended victim was Martin Roberts.  Ishaq and Ali now appeal against conviction by leave of the Single Judge who also granted an extension of time.  Following those grants of leave Sultan applied for an extension of time in which to apply for leave to appeal against conviction.  At the commencement of the hearing we extended the time and granted him leave.
2.	The events giving rise to these appeals occurred in the early evening of 7 October 2006.  Martin Roberts and Suzanne Shepherd were arguing in the area of Richards Terrace in Cardiff.  In the course of the argument, Roberts walked into the road in front of an oncoming Mercedes car which was being driven by Ishaq.  He was thereby forced to stop.  The case for the prosecution was that, rather than apologising, Roberts was abusive towards Ishaq and damaged his car.  Ishaq was angry and upset.  He drove to the nearby shop of Ali and Sultan.  Having picked them up, he drove them back to Richards Terrace.  Sultan and Ali were armed with a metal bar and a broom.  Having located Roberts and Shepherd in the street close to the original incident, Sultan and Ali then carried out a revenge attack upon Roberts at the direction of Ishaq.  Roberts sustained numerous injuries including a fractured jaw, a fractured cheek bone and a fractured skull.  Shepherd sustained fractures to several of her fingers as a result of a blow or blows which were actually directed at Roberts.  
3.	The case for Ishaq was that in the initial incident he had been racially abused by Roberts.  He then drove to the nearby shop and collected Ali and Sultan.  However they returned to Richards Terrace not in order to carry out an attack but to await the arrival of the police.  Ishaq said that he did not see his co-accused carrying weapons nor did he see them hit anyone.  He did not know who caused the injuries to Roberts and Shepherd.  The case for Ali and Sultan was to like effect.  They too denied that there was a plan to assault Roberts.  They denied emerging from the Mercedes bearing weapons although Ali admitted inadvertently carrying a broom from the shop into the car.  He maintained that it remained in the car at all times.  Both men denied causing the serious injuries to Roberts and Shepherd.  They said that any force used by them had been in lawful self defence and that, to the extent that they had deployed sticks as weapons, they had obtained them by disarming their assailants or by finding them on the ground at the scene.  
4.	The allegation of an armed revenge attack was based on the evidence of a number of witnesses.  Suzanne Shepherd said that two Asian men, plainly referring to Ali and Sultan, had approached carrying wood and a metal bar.  Rebecca Shepherd, her 16 year old daughter, described two men jumping out of the car, one carrying a metal bar and the other a wooden pole like a brush handle.  Terrianne Purse, who was not part of the complainant’s group but was going to meet her sister who was part of that group, described the two younger men emerging from the car with a broom and a metal stick.  Two wholly independent witnesses saw parts of the incident but did not see the appellants emerge from the car.  One of these witnesses, Doughty, called the police when she witnessed a degree of aggression but it was only after she had made that call that she saw one of the two younger Asian men hitting a white man repeatedly with some sort of pole.  
5.	When the Single Judge granted leave to appeal, he did so principally by reference to the fresh evidence of a new witness, Arif Khan.  We have received the evidence of Arif Khan pursuant to section 23 of the Criminal Appeals Act 1968.  We consider it to be capable of belief and there is a reasonable explanation for the failure to adduce it at trial.  In addition to the live evidence of Arif Khan, we also heard evidence from Sarah Saleem, Ishaq’s daughter, who was a law student at the time of the incident.  She was actively involved in instructing solicitors on behalf of her father.  We also heard evidence from Roger Lewis, the experienced legal executive who had conduct of the case on behalf of all three of the appellants at trial.  Miss Saleem was actively involved in instructing Mr Lewis in pre-trial meetings and discussions, not least because of her father’s limited English.  There are several points at which the evidence of Miss Saleem and Mr Lewis diverge.  Suffice it to say that we are persuaded that she is right when she says that she informed Mr Lewis of the existence of a potential witness before 1 May 2007.  There is an internal office e-mail of that date sent by a receptionist to Mr Lewis’ secretary referring to a telephone call from Miss Saleem.  The e-mail states:
“She said the name of the witness is Arif and he can be contacted on 07791-481884.”
6.	That, in itself, points to the probability that when Miss Saleem telephoned on 1 May, she was providing the details – name and telephone number – of a person whose existence she had previously mentioned but not named.  
7.	In the event, there was no contact between Mr Lewis and Arif Khan until after the trial.  Mr Lewis maintains that he did not see the e-mail of 1 May in the months before or indeed during the trial.  We find that surprising.  It is common ground that there were a number of conversations between Miss Saleem and Mr Lewis between 1 May and the commencement of the trial in July although there is some dispute about the exact number.  Although Mr Lewis denies that any mention was made of Arif Khan in his conversations with Miss Saleem, we do not consider that his recollection about that is accurate.  We found Miss Saleem to be an impressive witness and, as we have said, her evidence surrounding 1 May is, in our view, supported by the terms of the e-mail.  
8.	We do know that following the verdicts of the jury, Miss Saleem continued to communicate with Mr Lewis.  Arif Khan was mentioned and on 17 August 2007 he attended Mr Lewis’ office in order to make a statement.  A draft statement was prepared but never signed.  It referred to Mr Khan’s presence in Richards Terrace at the time of the incident when he was in the company of his pregnant wife and young child.  He described a man, by inference Ishaq, standing at the driver’s side of his car and shouting “Call the police” or “Somebody call the police”.  He was shouting in English and also in his own language which Mr Khan did not recognise.  The draft statement made no reference to weapons.  Mr Khan referred to seeing a man lying in the road.  However, the police arrived and he assumed that “everything was alright”.  He then went about his own business.  He did not contact the police or anyone else.  Three weeks later he travelled to Hong Kong where most of his family live and he remained there for three weeks.  When he returned he was working a seven day week for three to four months.  Eventually, and by chance, he saw the man who had been calling for the police at the mosque.  He approached the man (Ishaq) and asked him what had happened in the incident.  Ishaq told him that the case might go to the Crown Court.  Arif Khan said that if he needed help he could get in touch and he left his telephone number with Ishaq.  He did not discuss the details of what he had seen in Richards Terrace.  Miss Saleem states that she made no attempt to approach or to discuss the case with Arif Khan because she thought that that would be inappropriate and was content to leave such discussion to the solicitors. 
9.	On 23 August 2007 Arif Khan again attended the solicitors’ office with a view to signing the witness statement.  He attended without an appointment.  He said that on the occasion in Richards Terrace he had seen another man with a weapon with which he had attacked the Asian man.  The view was taken that the draft witness statement would need to be retyped to include the new information.  Mr Khan was asked to return at a later date to sign it but he did not do so, nor did he respond to a letter asking him to attend.  
10.	In due course, new solicitors were instructed and they obtained an affidavit from Arif Khan.  It included these passages:
“I then saw a white male come from somewhere down Richards Terrace and cross the road towards the Mercedes.  I thought it was an iron stick or a wooden rod but it was something like that which he had in his hand.  
I saw the white male hit an Asian male with a stick.  As the white man went to hit him with the stick the Asian male put his arm up to protect himself and the stick made contact with the Asian male’s arm …
When the Asian male was hit with the stick, the fight had started.  [Ishaq] was shouting in English and Punjabi for someone to call the police and stop fighting …
I heard the police sirens and turned towards my father-in-law’s house and saw one of the younger Asian males holding a stick the white male was holding earlier.  It was around the same time I saw the white male holding his head.”
11.	We have seen and heard Arif Khan give evidence along those lines and he has been cross-examined by Mr Bennett on behalf of the prosecution.  His explanation for the omission of the central part from the first witness statement is that his command of English is poor and there was no interpreter present.  His evidence in this court was given through an interpreter.  Mr Lewis maintains that Arif Khan’s English is not that bad although significantly, he volunteered that Arif Khan had seemed to run into language difficulties when talking about weapons.  We do not feel able to say that Arif Khan’s explanation for the omission or his evidence in general is incapable of belief.  
12.	In considering this fresh evidence and the history of its emergence, our first task is to assess its credibility, always remembering that, ultimately, the question is what a jury might have made of it if it had been adduced at trial: see Pendleton [2001] UKHL 66.  Lord Bingham has recently returned to the subject when delivering the judgment of the Privy Council in Bain [2007] UKPC 33.  There the ultimate test in the New Zealand legislation was one of “miscarriage of justice” rather than the “unsafety” of the conviction but it seems to us that the relevant principles are the same.  They derive from the right to and primacy of trial by jury.  Lord Bingham stated (at paragraph 115):
“First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court.  Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so.  And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading.  Even a guilty defendant is entitled to such a trial.”
13.	In an earlier passage, he stated (at paragraph 103):
“A substantial miscarriage of justice will actually occur if fresh, admissible and apparently credible evidence is admitted which the jury convicting a defendant had no opportunity to consider but which might have led it, acting reasonably, to reach a different verdict if it had had the opportunity to consider it.”
14.	If we substitute “unsafe conviction” for “substantial miscarriage of justice”, that approach also governs the approach in this jurisdiction.
15.	We must now apply this approach to the present appeals.  Although the evidence at trial established that none of the appellants ever called the police on the day of the incident, it has always been Ishaq’s case that he returned to the scene in the expectation of seeing the police rather than as part of a revenge attack.  The case against him was put on a joint enterprise basis, the allegation being that he directed and encouraged the attack.  In our judgment, credible evidence from a non-participant in the incident that Ishaq was actually asking for the police to be called is potentially supportive of his case and adverse to the prosecution case.  He and the other appellants were of good character.  Roberts and Shepherd were not, Roberts having a particularly lamentable record.  There was independent evidence at trial supporting the utterance of racial abuse in the earlier incident with the car which Roberts denied.  We have come to the conclusion that, if the evidence of Arif Khan had been adduced at the trial (and we consider that Ishaq was not to blame for the fact that it was not), the jury might reasonably have come to acquit Ishaq.  In these circumstances, we find his conviction to be unsafe.
16.	The next question is whether the same must follow in relation to Ali and Sultan.  It seems to us that, although they derive some benefit from our conclusion about Ishaq, the case against them turned significantly on those witnesses at trial who described them emerging from the car armed with a wooden stick and a metal bar.  Would the evidence of Arif Khan have had the potential to undermine that evidence?  We cannot discount the reasonable possibility that it might have.  Their accounts, however implausible on the question of a lack of responsibility for the grievous bodily harm, are centred upon their spontaneous acquisition of makeshift weapons by disarming or finding when they themselves were under attack.  If Arif Khan were to be believed on the issue of another man apparently introducing such a weapon to the conflict, it seems to us that a jury might take a more favourable view of Ali and Sultan, at least on the issue of self-defence.  Although this turns on the part of Arif Khan’s evidence that was not present in the first draft witness statement, we do not consider the explanation for its absence to be inherently incredible.  As with the case of Ishaq, we consider that these matters lie properly within the province of the jury.  Accordingly, we also find the convictions of Ali and Sultan to be unsafe.  
17.	We should add that, in addition to the appeals on the ground of fresh evidence, all these appellants have leave to appeal (hesitantly granted) by reference to alleged shortcomings in the summing up.  Whilst there may have been some rough edges in the summing up, we would not have allowed the appeals on these grounds.  They do not seem to us to impact on the safety of the convictions.  We allow the appeals against conviction solely by reference to the fresh evidence of Arif Khan.
18.	In this judgment we have set out the reasons for allowing the appeals and quashing the convictions as we announced at the conclusion of the hearing on 29 October.  On that occasion, having heard submissions on behalf of all parties, we ordered a retrial and gave appropriate directions.  We did so because of the seriousness of the alleged offences, notwithstanding the previous good character of the appellants and the fact that they have either been released or would soon have been entitled to be released from their sentences of three years’ imprisonment.  We are also mindful that there is still a cogent case against them.