Ghahi, R v

A conviction will not be unsafe merely because potentially relevant material has been lost or further enquiries might have been possible. The appellate court must assess whether the trial process fairly addressed any resulting prejudice and whether the alleged defects, individually and cumulatively, undermine the safety of the verdict.

Speculation about what unavailable CCTV, telephone records, or possible fresh evidence might have shown does not establish unfairness. A brief or absent judicial explanation of an abandoned allegation of recent fabrication will not require intervention unless the overall fairness of the trial or the safety of the conviction is affected.

The applicant was convicted by a majority in the Crown Court at Kingston-upon-Thames of rape and was sentenced to seven years’ imprisonment. The jury did not reach a verdict on a further count of rape, which was ordered to lie on the file.

After a Single Judge refused permission, the applicant renewed his application for leave to appeal against conviction. He relied on the loss of CCTV footage, the absence of mobile telephone records, a proposed further enquiry concerning the complainant’s coat, and aspects of the prosecution cross-examination. The central issue was whether those matters rendered the conviction unsafe.

1. The renewed application for leave to appeal against conviction was refused. The court held that the conviction was not unsafe.

2. The lost CCTV footage did not justify a stay for abuse of process. The applicant accepted that conclusion. The court nevertheless considered whether the trial had fairly addressed any prejudice caused by its loss. Evidence about the parties’ first meeting, including the complainant’s assumption that the applicant was a minicab driver, was relevant. It had not been the subject of an application for exclusion and did not cause unfair prejudice.

3. The absence of mobile telephone records did not make the verdict unsafe. Such records might have shown whether calls occurred, but could not have revealed their contents. It was speculative to suggest that further enquiries would have altered the position, and the issue had been fairly summarised for the jury.

4. The proposed further investigation into whether the complainant collected her coat from the cloakroom was also speculative. It was a matter capable of exploration at trial and did not support the introduction of fresh evidence on the application.

5. The prosecution had initially suggested, incorrectly, that parts of the applicant’s evidence were recent inventions. One matter was not pursued and another was briefly explained to the jury. Although a fuller explanation could arguably have been given, those matters, whether separately or together with the other complaints, did not undermine the safety of the conviction.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2005] EWCA Crim 3606.
• Crown Court at Kingston-upon-Thames: convicted by a majority of rape on 18 February 2005 and sentenced to seven years’ imprisonment. The jury failed to agree on a second rape count, which was ordered to lie on the file.
• Single Judge: refused permission to appeal on the original grounds.