Rabani, R. v

A refusal to transfer publicly funded representation or to adjourn for new representation is lawful where the judge applies the relevant criteria, finds no substantial and compelling reason for transfer, and is entitled to regard a late request as tactical delay.

A conventional direction on lies, and an adverse-inference direction under section 34, will not render a conviction unsafe where the directions are fair and properly confined. Under section 2 of the Criminal Procedure Act 1885, the prosecution should not make a final speech where a wholly unrepresented defendant has called no witness other than himself. That irregularity does not require a conviction to be quashed unless the appellate court considers the conviction unsafe.

The appellant was convicted at Aylesbury Crown Court of religiously aggravated inflicting grievous bodily harm and intimidation. He had represented himself at trial. He appealed against both convictions, challenging refusals to transfer or obtain legal representation, directions on lies and adverse inferences, the handling of defence witnesses, and the prosecution’s final speech.

The Court of Appeal accepted that, on the facts of this trial, prosecuting counsel had no right to make that final speech. The central issue was whether that procedural irregularity, or any of the other alleged errors, made either conviction unsafe.

1. Appeal dismissed. Neither conviction was unsafe.

2. The trial judges had applied the correct principles when refusing to transfer the representation order. There was no substantial and compelling reason for a transfer. The later request for representation, made after the principal prosecution evidence, could properly be treated as a tactical attempt to delay the trial. The judge was therefore entitled to refuse an adjournment.

3. The direction concerning the appellant’s statement to the police about being in Uxbridge was fair. The jury were told that they had first to be sure that a lie had been told and could use it only if satisfied that there was no innocent explanation. The matter was minor in the context of the evidence and the direction did not prejudice the defence.

4. A section 34 direction was inevitable once the appellant first suggested in evidence that Ajad Khan might have been the intimidator, although he had not named him in interview or in his defence statement. The direction was conventional and favourable to the appellant because it preserved the possibility that legal advice explained the omission. The judge had also adequately informed the appellant of his ability to call witnesses; he was not required to identify the appellant’s solicitor as a potential witness.

5. Section 2 of the Criminal Procedure Act 1885 prohibited a final prosecution speech in the circumstances of this wholly unrepresented defendant, who had called no witness other than himself. The court followed the established practice discussed in R v Mondon and did not need to decide the wider possibility noted in R v Stovell. The error did not automatically require quashing. Applying the statutory safety test, consistently with R v Pink, the court found the intimidation evidence overwhelming and the evidence on the assault count strong. The summing-up was scrupulously fair and addressed the weaknesses in the prosecution evidence. Both verdicts were safe.

• Court of Appeal (Criminal Division): In [2008] EWCA Crim 2030, dismissed the appellant’s appeal against convictions for religiously aggravated inflicting grievous bodily harm and intimidation.
• Aylesbury Crown Court: Convicted the appellant on 23 August 2007 and sentenced him on 31 March 2008.