Case No: 200901398 D5
Neutral Citation Number: [2010] EWCA Crim 1619
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD
HH JUDGE MURPHY QC
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/07/2010
Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE HOLMAN
and
HIS HONOUR JUDGE PERT QC 
(sitting as an additional judge of the Court of Appeal Criminal Division)
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Between :

	MOHAMMED ALI	Applicant	
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	THE QUEEN	Respondent	

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S Kamlish QC and O Osman (instructed by Howells) for the Applicant

Hearing date: 11 June 2010
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Judgment
Lord Justice Stanley Burnton:
Introduction
1.	On 11 January 2007 in the Crown Court at Sheffield, before HH Judge Murphy QC and a jury, the applicant was convicted of murder and of two counts of attempted murder. He has applied for an extension of time of 2 years, 1 month and 8 days and leave to appeal against his conviction, following refusal by the single judge. This is the judgment of the Court on his applications.
The facts
2.	At around 5.30 pm on 3 June, 2006, a silver Volkswagen Bora motor vehicle driven by Adil Khan was on Osgathorpe Road, Sheffield.  His front seat passenger was his brother Lukman Khan.  In the back of the car were Tahir Younis (rear nearside), Kashif Nasim (rear off side) and Ibrahim Ilyas in the middle.  Adil Khan was intending to turn onto Abbeyfield Road but saw a blue Volvo motor car stationary at the junction. The Bora pulled into the junction and stopped alongside the Volvo, off-side to off-side. At that point a man got out of the Volvo and fired eight bullets into the side and through the back window of the Bora.  At some stage the gunman pulled a balaclava down over his face. Kashif Nasim, although injured, got out of the car and ran into Osgathorpe Park and from there to the Northern General Hospital. Adil Khan drove to the same hospital where he deposited Ibrahim Ilyas and Tahir Younis.
3.	Ibrahim Illyas was treated for his injuries but pronounced dead at 6.20 pm.  The cause of death was multiple gunshot wounds, there being a total of six entry wounds (count 1). Kashif Nasim was treated for gunshot wounds to his back (count 2) and Tahir Younis had an injury to his right outer thigh (count 3).
4.	The applicant was arrested in Middlesbrough on 4 June 2006 at 1.25 am, i.e. within hours of the shooting. He was interviewed 5 times on 5 and 6 June and answered no comment to all questions. On 6 June he signed a written statement in which he denied being the gunman. It made no mention of any alibi. 
5.	On 28 September 2006 a defence statement was prepared and signed by him. It too made no mention of an alibi. 
6.	On 30 October 2006, two and a half weeks before the trial was due to begin, a supplemental defence statement was served on behalf of the applicant. For the first time, the defence of alibi was put forward. It stated that at the time of the shooting the applicant was at the Taj Mahal restaurant in Doncaster with his cousin Gharib Dawood and a solicitor by the name of Duncan Smith. 
7.	On 3 November 2006, the police interviewed Smith. They investigated his account of his being with the applicant when the shooting took place. Without going into details, it can safely be said that they completely demolished his story. As a result, when the applicant came to give evidence at his trial, he accepted that he had not in fact been with Smith at the time of the shooting.
The Prosecution Case
8.	The prosecution case was that the applicant murdered Ibrahim Ilyas and attempted to murder Tahir Younis and Kashif Nasim. The motive was connected with drug dealing in the area. Earlier that afternoon there had been what was referred to at the trial as a “precursor” event in which the deceased was said to have been threatened by the applicant. The deceased had been a drug dealer and at the time of his death had traces of cocaine and cannabis in his body.  His mother gave evidence that he had told her that the applicant had asked him to sell drugs but that he had said he was not interested.
9.	Tahir Younis, Adil and Lukman Khan and Kashif Nasim identified the applicant as being responsible for the shooting. They all subsequently retracted their statements and were treated as hostile witnesses. Another witness, Suheel Rahman failed to make a positive identification in that he could not make a decision between two members of the parade, the accused and another.
10.	The Volvo had been stolen and was later found burnt out in Psalter Lane, Rotherham.  There was no forensic evidence linking it to the applicant. 
11.	The prosecution relied upon cell site analysis and telephone calls from two mobile phones which, it was alleged, traced the applicant fleeing the scene following the shooting.
The defence case
12.	The applicant denied he was the gunman. Witnesses who sought to identify him as such were mistaken or, worse, he was being set up.  He was not in Sheffield at the time of the shooting but was at the Taj Mahal Restaurant in Doncaster with his cousin, Gharib Dawood.  He spoke to various people there including the waiter, the owner and a white man who was a builder.  He had no quarrel or grudge against the deceased or any of the people in the car.  He denied that he was a drugs dealer and said he was not trying to get the deceased involved in running drugs for him or to get him out of the way as a drugs rival.  There was no background of animosity between them. There had been a quarrel in the street earlier that afternoon but he was only partially involved as a peacemaker.  The deceased’s lifestyle was such that he might have had enemies.
13.	It was coincidental that the ‘blue’ phone ascribed to him by the prosecution was taken to Rotherham at just about the time of the killing and then to the Psalter Lane area at about the time of the burning of the Volvo.  He had given the blue phone to his brother Saddaqat a few days before the shooting.  Saddaqat had left it in the car of Sajeed Mahmood (the owner of the Taj Mahal) who, by coincidence, returned it to the applicant in the restaurant that night.
14.	So far as Smith was concerned, the applicant said that he had been told that Smith had said he had been with him at the Taj Mahal restaurant, and he had accepted that if Smith had said that it must have been the case. He now realised that Smith had been wrong.
The discharge of a juror
15.	During the course of the trial, a police officer, DI Wragg, discovered that one of the jurors was the godfather of his child. He brought this to the attention of prosecuting counsel, who brought it to the attention of the judge. The defence applied for the discharge of the juror. The judge refused the application, holding that in the circumstances there was no risk of prejudice or an appearance of bias.
The grounds of appeal
16.	The grounds of appeal are numerous, and are as follows:
(1)	Defence counsel had unjustifiably failed to adduce evidence that the applicant had provided his solicitors with particulars of his alibi before he was charged.
(2)	Defence counsel had unjustifiably failed to have Duncan Smith interviewed before deciding not to call him and advising the applicant that he should not be called.
(3)	Evidence of the investigation by the police into Duncan Smith’s alibi evidence had been wrongly admitted in evidence.
(4)	The arrest of Natalie Miller (wrongly referred to as Natalie Smith in the applicant’s grounds and skeleton argument), a solicitors’ clerk working for the applicant’s solicitors, at court on 14 December 2006 and the seizure of a solicitor’s notebook and a defence witness statement were unjustifiable acts of bad faith during the trial by the police which should have resulted in the proceedings being stopped as an abuse of process.
(5)	The Court’s failure to investigate the contact between DI Wragg and a juror renders the conviction unsafe.
(6)	The failure to discharge the juror following contact between him and DI Wragg during the trial renders the conviction unsafe.
(7)	The failure to discharge the jury following that contact renders the conviction unsafe.
(8)	There had been an inexcusable failure by the applicant’s lawyers to interview and to call witnesses who would have significantly assisted the defence case or undermined that of the prosecution.
(9)	Jury protection issues.
(10)	There had been disclosure failures by the Crown
(11)	Bad character evidence had been wrongfully admitted.
(12)	The applicant’s lawyers had negligently failed to show CCTV from the Northern General Hospital to their client.
17.	Mr Kamlish QC did not pursue grounds (4) and (9), and we say no more about them. 
18.	It can be seen that most of the grounds criticise trial counsel and solicitors. The applicant waived privilege, and we have the written responses of his counsel and solicitors to these criticisms.
19.	It is also worth pointing out that no criticism is made of the summing up.
The extension of time
20.	On one view, the question whether time should be extended should be considered as a preliminary issue, since if the application for an extension of time is refused, that is the end of the application. In practice, however, the Court often considers this application in the light of the merits of the case. The greater the merits of the case, the stronger the reasons for doubting the safety of the conviction, the more ready the Court may be to extend time. 
21.	There is, however, another consideration involved in the present case. An extension of time of the very great length required in the present case may well affect the recollections of witnesses and the availability of evidence, and may prejudice the fair determination of an appeal if leave is given. In the present case, the delay has detracted from the evidence that the applicant’s trial lawyers would otherwise have been able to provide. In particular, the solicitor responsible for the applicant’s case was Miss Amanda Wardaugh of Olliers. She sadly died in 2008. The consequences of her death have been exacerbated by the fact that Olliers are missing some files and notes, and some employees involved with the case have left.
22.	The applicant was represented at trial by David Lane QC and Balbir Singh. David Lane was and is a highly experienced criminal advocate. Balbir Singh is a senior junior with considerable criminal experience. They made the point that since relevant matters had occurred 2½ years before they were asked to comment on the application for leave to appeal, their recollections were not fresh, and they had both forgotten matters of importance and detail. Moreover, in spite of extensive searches, Mr Lane’s trial brief and working papers could not be located. His chambers had moved in December 2008, and his trial brief may then have been lost or destroyed. He therefore had no working papers with which to refresh his memory. Olliers had located only part of Mr Balbir Singh’s brief. 
23.	We have a chronology that seeks to explain and excuse the considerable delay on the part of the applicant. Some of the delay is explicable, but a considerable period is not.
24.	In these circumstances, the Court will carefully scrutinise the grounds of this application before deciding whether to extend time and to grant leave to appeal.
Ground (1): Defence counsel had unjustifiably failed to adduce evidence that the applicant had provided his solicitors with particulars of his alibi before he was charged.
25.	On 6 June 2006, at 18.29, two days after his arrest, the applicant provided his solicitor, then Rebecca Cooke of Olliers, with a written statement that included his alibi. It stated:
“…. I wish to state that at and around the time of the shooting I was not present at the scene. I wish to raise an alibi defence to the murder of Ibrahim Ilyas. On 03/06/06 I was with Gharib Dawood who is my cousin. Around the time of the shooting I would have been with him at my friend’s restaurant in Doncaster. My friend is called Sajid Mahmood and I did see him later that evening at the restaurant. That is all. I wish to state at this stage and I do not want this information to be disclosed to the police as I am being set up by the prosecution witnesses in this case. The other males named as being present in the vehicle by the police at the shooting are dangerous people and have clearly set me up by naming me. I fear what they may do to my alibi witnesses if it is disclosed and am also in fear that they will threaten my family. …”
26.	It is submitted on behalf of the applicant that his counsel should have called Miss Cooke to produce this evidence, having regard to the great play made by the prosecution of his delay in disclosing his alibi.
27.	We reject this ground. In the first place, there was no explanation for the applicant’s failure to mention his alibi when arrested within hours of the murder, or later on 4 or 5 June. He first mentioned the alibi to his solicitor during her fourth interview with him. Why should he have wanted to be detained in custody when he had such an obvious answer to the charge? This was the point made by the prosecution, with such effect. The justification put forward for not disclosing the alibi made no sense. Why should the applicant’s family be threatened if he disclosed that he was with his cousin? Moreover, if he feared violence from the witnesses to the murder, that was a reason to inform the police, not a reason to suppress the information. Thirdly, no mention was made of Duncan Smith. The statement would add to the prosecution case that the applicant knew that Duncan Smith had not been at the restaurant, and that he was a false alibi witness. 
28.	Furthermore, as the applicant’s trial counsel appreciated and pointed out, calling Miss Cooke would have involved a waiver of privilege. How extensive that waiver might have been is not clear, but her advice on his alibi would certainly have become open. She would have been asked whether he mentioned Duncan Smith, and when and in what circumstances Duncan Smith came to appear as an alibi witness. The prosecution would have investigated why the alibi was disclosed so late. It was obviously a sensible decision for trial counsel to advise, as they did, against disclosure of the alibi until they had seen the prosecution’s cell site evidence, and if it was incriminating until they knew whether the applicant had a sensible explanation of it. Otherwise, if that evidence was inconsistent with the alibi, that would have been immensely damaging. This reasoning impinged on the applicant’s explanation for the cell site evidence. Furthermore, whatever the extent of the waiver of privilege, to claim privilege when the prosecution asked such questions would have suggested to the jury that the applicant had something to conceal, that he was waiving privilege only when it suited him. 
29.	In our judgment, trial counsel had good reason not to call Miss Cooke.
Ground (2): Defence counsel had unjustifiably failed to have Duncan Smith interviewed before deciding not to call him and advising the applicant that he should not be called.
30.	This ground is hopeless. As a result of the police investigation of his alibi evidence, Smith was charged with attempting to pervert the course of justice. He instructed solicitors. In his original statement, he had said he had been in his Doncaster office earlier on the day of the murder. However, according to his solicitor, he subsequently said that he had not been in that office for 2 years and had lost the keys. On 12 December 2006, his solicitor spoke to Miss Wardaugh on the telephone. According to her note:
“He does however warn me that this will be an unmitigated disaster if we call him. He will be asked all about his relationship with Ali and the Ali family and would open a can of worms for the trial. He said if we insist on calling him he has been advised not to answer questions and to simply say to the Judge that it may incriminate him …”
31.	Faced with this, it would have been foolhardy in the extreme to have called Smith. It is unsurprising in these circumstances that the applicant agreed in writing that Smith should not be called. A decision not to interview him would not have been open to criticism, since there was ultimately no point in having him interviewed, even if he would have agreed to being interviewed. In fact, however, an attendance note of 13 December 2006 states that he was interviewed by AW and RC for an hour: AW was Miss Wardaugh, RC was Miss Cooke of Olliers. He was under the influence of alcohol and had been advised by his solicitors not to give evidence. Trial counsel state that it would have been a disaster to have called him. We consider their view to be not merely defensible but obviously right. This ground appears to us to be based on a false assumption that Smith was not interviewed, but on any basis it is without any merit whatsoever.
Ground (3): evidence of the investigation by the police into Duncan Smith’s alibi had been wrongly admitted in evidence.
32.	The evidence obtained by the police was admissible when called in order to rebut the then anticipated alibi evidence of Duncan Smith. The only question is, therefore, whether the defence should have objected to the admission of the evidence of DS Hayward, who gave this evidence at the trial, on the ground that it represented hearsay evidence for which leave had not been given. We have no doubt that, in so far as the evidence consisted of business and computer records (e.g., of a credit card debit and records of motorway registration number recognition cameras), if objection had been taken the judge should and would have allowed it to be adduced. In so far as it included witness evidence, any objection would have led to the witness being called. As the applicant’s trial counsel rightly observed, a procession of unchallenged witnesses (or of witnesses who, if challenged, would have been obviously telling the truth) would have done nothing to assist the defence case.
33.	This ground too is without merit.
Ground (5) to (7): contact between a juror and an officer in the case
34.	DI Wragg was the police officer who was tasked with investigating Duncan Smith. 
35.	On 4 December 2006, he made a witness statement in which he disclosed contact with a juror. He stated that in the course of a conversation with his partner she had mentioned that her cousin’s husband was on jury service on a murder trial at Sheffield Crown Court. He was the godfather to DI Wragg’s daughter. He had not disclosed any details of the case other than that it was a murder trial. DI Wragg asked him to contact him, which he did on Sunday 3 December. DI Wragg had explained he was trying to avoid any possible compromise of either of them, and asked him if he was the juror on the Mohammed Ali case, to which he replied “Yes.” The conversation then ended.
36.	DI Wragg’s statement was served on the defence on 4 December. The matter was mentioned to the judge by prosecuting counsel, and in due course Mr Lane applied for the discharge of the juror. His application was refused.
37.	There was no reason to suspect that DI Wragg had been less than candid. He had disclosed the contact, and his relationship with the juror. There was no evidence of contamination, and we note that DI Wragg did not inform the juror that he was engaged in the Mohammed Ali trial. 
38.	We see no basis for criticising trial counsel for not suggesting that further investigation was required. DI Wragg did not testify before the jury, so that his veracity was not in issue before them. We think that the judge was right to conclude that there would be neither bias nor an appearance of bias in the circumstances. It follows that these grounds must fail.
(8) There had been an inexcusable failure by the applicant’s lawyers to interview and to call witnesses who would have significantly assisted the defence case or undermined that of the prosecution.
39.	There are broadly 3 groups of potential witnesses to be considered. The first group are witnesses whose evidence goes to the issue as to the recognition of the applicant as the gunman. The three men in the VW Bora car made statements shortly after the murder that they recognised the applicant as the gunman. They retracted their statements; they testified and were treated as hostile by the prosecution. They all said that they had seen the gunman’s face before he had fully pulled down the balaclava helmet he wore to conceal his identity.
40.	Three of the witnesses who, it is suggested, should have been proofed and called by the defence had made statements to the effect that the gunman was at all times concealed by his balaclava. They were Hussain Khan, Rashid Rehman and Kashmir Malik. They were the subject of a letter from the CPS dated 13 November 2006 stating that they were no longer to be regarded as witnesses of truth, and therefore were not relied upon by the Crown. 
41.	Trial counsel say that all decisions as to which witnesses were to be called on behalf of the applicant were made in conjunction with him. We accept their statement. There was in fact very good reason not to call these Hussain Khan, Rashid Rehman and Kashmir Malik. The Crown, apparently had concerns that these witnesses had not come forward until after the applicant’s arrest. They had connections with the applicant and his family. More importantly, if they were no longer regarded by the CPS as witnesses of truth, it is clear that the CPS had material on which to base this assertion which would be deployed if they were called. The defence had good reason not to call these witnesses, and there would have been no purpose in proofing them. 
42.	There are a number of possible witnesses about whom trial counsel cannot recall any discussion: Kobir Miah, Ailya Khan, Bakish Khan and Asif Younas. Their evidence would have gone to the issue whether the applicant had been recognisable shortly before the shooting. Given the length of time between the trial and any complaint by the applicant, to whom the absence of their evidence would have been obvious, we are not able to accept that trial counsel had no good reason not to cause them to be proofed and called. Some of them say they went to the hospital after the murder and that the surviving occupants of the Bora did not or could not identify the applicant. In any event, their evidence would not explain how or why it was that those in the Bora car did immediately identify the applicant, and no sensible reason has been put forward why they should have wanted to incriminate the applicant and exculpate the true murderer. More obviously, their evidence would have gone nowhere towards explaining away the other matters relied upon by the prosecution.
43.	Ailya Khan is on a list of witnesses mentioned in an undated attendance note as the subject of a decision that they should not be called. We infer that her evidence was discussed with the applicant and the subject of consideration, advice and decision.
44.	The second group of witnesses may be referred to as the Osgathorpe Park witnesses. Two independent witnesses who gave evidence at the trial said that a man who had been shot ran into the park and said that he had been shot by Mohammed Ali. They remembered the name because it is also that of the famous boxer. Zoë Parker and Nushrat Khan came forward after the trial. We have no information as to how they were traced. They do not mention that the applicant was identified by name in the Park. However, their evidence does not explain that of the independent trial witnesses.
45.	Niaz Khan was a witness who it is said would have confirmed that the applicant had not been in possession of his “blue” telephone at the time of the murder. He was a defendant in a trial also taking place at Sheffield Crown Court. It is not surprising that he was not called.
46.	There are other suggested witnesses (Barab Hussain and Wahid Yousef) whose names do not appear on the contemporaneous list of witnesses MA/2 and whom trial counsel do not recall discussing. They too are late appearances whose appearances have not been explained. We do not see any basis for criticising the trial lawyers. Whether their or any other testimony now suggested could affect the safety of the convictions is something we address below. The defence called 10 witnesses in support of the applicant’s alibi, his case on telephones, the finding of the body armour and the precursor incident. We are not surprised that despite this the applicant was convicted, having regard to the very strong the case against him.
47.	Given the strength  of the other evidence against the applicant, we do not think that other witnesses who assert that the victims did not in fact know the identity of the gunman would have or could have affected or could now affect the verdicts or their safety. For this reason, we would not consider giving leave for them to testify. 
(10) Disclosure failures by the Crown
48.	These relate to matters so peripheral that even if the CPS were at fault, it is impossible to consider that they could affect the safety of the convictions.
(11) The wrongful admission of bad character evidence
49.	The prosecution successfully applied to adduce in evidence two photographs of the applicant holding firearms, two sets of body armour, one of which was found in his bedroom, and a statement of a witness treated as hostile to the effect that he had seen the applicant stroking his beard with a gun. It is submitted that this evidence did not suggest any propensity to use guns, and could not and should not have been admitted under section 101(1)(d) of the Criminal Justice Act 2003, which was the basis of its admission.
50.	The applicant’s difficulty under this ground is that on his case this was not bad character evidence. He said that the photographs had been taken in Pakistan, where his handling the guns, which were photographer’s props, was not an offence. If so, the photographs were not evidence of any criminal offence or other reprehensible character. The possession of body armour is not illegal or reprehensible. However, this evidence was clearly relevant to the issue whether the applicant had been correctly identified as the gunman: it would have been another unfortunate coincidence that the man identified as the gunman showed an attraction to guns, and had body armour at home. If the photographs, and the witness statement, related to the possession in this country of unlicensed weapons, this was bad character evidence and was rightly admitted as relevant to the issue as to the correct identification of the applicant as the gunman, quite apart from any question of propensity. It is to be noted that section 101(1)(d) includes, but is not limited to, evidence going to propensity, and in our judgment includes evidence tending to show that a disputed identification of a defendant was correct.
(12) The failure of defence lawyers to view CCTV evidence from the hospital.
51.	Olliers dispute that there was any such failure. The purpose of viewing the CCTV, apparently, was to identify those who were at the hospital after Adil Khan had arrived there. This was not obviously important or even relevant evidence. Nor do we think that calling evidence to the effect that those at the hospital did not know who the killer was (which is the effect of the evidence that it is said would have been discovered) would have affected the trial verdicts, given that there had been an identification of the applicant to independent witnesses immediately after the shooting, the fact that he was indubitably identified at the hospital by Tahir Younis to PCs Stocksbridge and Crookes, and given the other evidence against the applicant.
Generally
52.	In his devastating closing speech for the prosecution at the trial, Mr Richardson QC set out no less than 19 “unhappy coincidences” that pointed to the applicant being the gunman. Parenthetically, the late appearance of his alibi is not one of them. However, the fact that there were two alibi witnesses who had been “mistaken” was included. Each of the matters to which Mr Richardson referred supported the identification of the applicant as the gunman. The applicant’s explanations of his having identified Duncan Smith as an alibi witness, and of the cell site evidence, were patently incredible. Mr Kamlish has sought to undermine some of the matters relied upon by the prosecution, but it is necessary to view them in their totality and having regard to their cumulative effect. We do not set them out here, this being a judgment on an application for leave to appeal and not on an appeal. Suffice it to say that their cumulative effect, against the evidence in the case, leaves us with no doubt as to the safety of these convictions.
53.	For these reasons, we conclude that it would be wrong to extend the applicant’s time to apply for leave to appeal. His applications will be refused.