Ahmed, R. v

Legal professional privilege is not waived across an entire file merely because a solicitor has made assertions or disclosed documents. The court must identify the confidential communication actually disclosed and extend any waiver only so far as fairness requires. A conviction remains safe where a disclosure error or fresh material would not realistically affect the verdict. A summing-up need convey the substance of the relevant directions, rather than repeat every item of evidence or use prescribed wording. A reasonable-belief-in-consent direction need not be elaborated on a hypothesis unsupported by either party’s evidence. Serious rape accompanied by abduction, captivity or multiple rapes attracts substantial custody; cultural attitudes that do not condone the offending furnish no mitigation.

The appellant was convicted at Basildon Crown Court of kidnapping, false imprisonment and two rapes committed during a continuous episode in July 2005. He received concurrent sentences, the longest being nine years’ imprisonment.

He appealed against conviction on grounds concerning legal professional privilege over the complainant’s matrimonial-solicitors’ file, newly available documents said to affect credibility, the summing-up, the good-character direction, and reasonable belief in consent. He also renewed an application for leave to appeal against sentence. The central question was whether any asserted defect rendered the convictions unsafe or the sentence manifestly excessive.

1. The appeal against conviction was dismissed, and the renewed application for leave to appeal against sentence was dismissed. Legal professional privilege protects confidential client-lawyer communications for advice and litigation. Although voluntary disclosure will normally waive privilege as to other material concerning the same transaction, a limited disclosure need not cause a general waiver. The court must identify the confidential communication actually disclosed and extend the waiver only to the extent fairness requires. The complainant had waived privilege in counsel’s advice mentioned in her solicitors’ letter to the police, and related instructions, but not in the matrimonial file generally. Those matters were remote from the offences and could not have affected the verdict.
2. A party seeking documents held by a third party should obtain a witness summons for their production. The privilege holder must have an opportunity to be heard. The court did not need to hear from the complainant because any disclosure error could not undermine the safety of the convictions.
3. The fresh documents merely added to an existing challenge to the complainant’s general credibility. The defence had made a considered decision not to use them at trial and had no reasonable explanation for that failure. In any event, the jury already knew of the material inconsistency, so the documents would not have significantly affected the outcome. A judge need not rehearse every item of evidence in a lengthy trial. The solicitors’ evidence was peripheral and had not been advanced as bad-character evidence under section 101 of the Criminal Justice Act 2003.
4. The good-character direction, read as a whole, adequately conveyed both credibility and propensity limbs. Its phrasing was less than ideal, but it did not render the convictions unsafe. Lloyd [2000] 2 Cr.App.R. 355 was materially different because there was other evidence supporting the prosecution and the credibility limb here was stated directly. Nor was there an evidential basis for a separate invitation to consider consent inferred from silence or cultural expectations: the opposing cases were active resistance and enthusiastic participation.
5. The offending involved abduction, captivity and two rapes in a continuous course of conduct. Applying Millberry [2002] EWCA Crim 2891, the eight-year starting point for rape with such aggravating features was exceeded without error. The nine-year concurrent sentence was severe but not manifestly excessive.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction and the renewed application for leave to appeal against sentence: [2007] EWCA Crim 2870.
• Crown Court at Basildon: Convicted the appellant of kidnapping, false imprisonment and two rapes, and imposed concurrent sentences with a maximum of nine years’ imprisonment.