Sheikh v R

A ruling that a criminal trial remains fair despite missing records must address the records’ likely bearing on the live issues. The quality of cross-examination using surviving material cannot itself determine fairness.

Where missing staff and personnel records may directly establish whether an accused had contact with a complainant or the opportunity to commit an alleged offence within a very confined period, their absence may render the conviction unsafe. The trial judge must analyse that prejudice rather than treat the defence’s ability to expose other inconsistencies as conclusive.

The appellant was convicted at a retrial in the Crown Court at Leeds of two counts each of indecent assault and buggery, alleged to have been committed in 1980 at a residential care home. His earlier convictions had been quashed after fresh evidence showed that part of the complainant’s original chronology could not be correct.

At the retrial, the period in which the appellant and the principal complainant were both at the home was limited to August 1980. Staff rotas, a day book and personnel records were missing. The defence submitted that those records could have shown whether the appellant had contact with the complainant and an opportunity to commit the alleged offences. The central issue was whether their absence deprived the appellant of a fair trial.

1. The appeal against conviction was allowed. The Crown did not seek a retrial, particularly because of the time the appellant had spent in custody.

2. The trial judge failed to engage with the defence submission about the missing records. His reliance on the effectiveness of defence cross-examination and the volume of surviving disclosure did not answer whether the absence of the records made a fair trial impossible. The later, brief reconsideration during the jury’s deliberations did not cure that failure.

3. The missing staff rota and personnel records were likely to be highly relevant. They could bear directly on whether the appellant had contact with the complainant sufficient to gain his trust and whether he had an opportunity to commit the alleged offences. Their importance was intensified because the parties overlapped at the home only from 1 to 31 August 1980, the alleged incident was confined to 29 or 30 August, and there was a real possibility that the appellant was on leave.

4. The court had grave doubt that a judge who properly analysed those consequences would have found the trial fair. At the least, such a judge would not necessarily have reached that conclusion. The principal ground therefore succeeded. Since the evidence of each complainant was the only support capable of supporting the other, the unsafety of the convictions concerning the principal complainant also rendered the remaining convictions unsafe.

5. The trial judge had misstated the burden governing fairness, as noted by reference to S(P) [2006] EWCA Crim 756, although the appellant did not rely on that error. The court also distinguished Williams-Rigby and Lawson [2003] EWCA Crim 693: an unfortunate reference to other abuse trials created too remote a risk of impermissible jury speculation to make the convictions unsafe on that ground. It further indicated that medical records held by the prosecution became disclosable after the complainant alleged historic suicide attempts, but did not need finally to determine that issue.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction: [2006] EWCA Crim 2625. No retrial was sought.
• Crown Court at Leeds: At a retrial before His Honour Judge Scott and a jury, the appellant was convicted on 21 January 2005 of two counts each of indecent assault and buggery.
• Full Court: The appellant’s earlier convictions were quashed on 5 February 2004 after fresh evidence undermined part of the complainant’s chronology.