Iqbal v R.

On an appeal founded on fresh evidence, the question is whether the evidence, if capable of belief, may make the conviction unsafe. Where an appellant advances a new alibi after presenting a different account at trial, and the appellate court is sure that the new account is false, the conviction cannot be unsafe on the facts of the case.

Cell-site evidence remains capable of supporting the safety of a conviction where its underlying records are unaltered and repeated independent extractions produce consistent results. A disclosure failure does not affect safety where the undisclosed material could not undermine that conclusion.

The appellant was convicted after a retrial in the Crown Court at Birmingham of attempted murder and possessing a firearm with intent to endanger life. The prosecution case was that he had participated in a prolonged armed attack on Mohammed Javed.

At trial, the appellant’s case was that he had been near the scene but had not participated. On appeal he relied on fresh cell-site evidence and asserted instead that he had been at a gym in Digbeth at the time of the attack. He contended that errors in the extraction of T-Mobile call data, and non-disclosure of an email concerning an earlier flawed extraction, rendered the cell-site evidence unreliable.

The central issue was whether the fresh evidence made the jury’s finding that the appellant was at the scene unsafe.

1. Appeal dismissed. The court was sure that the appellant’s new account that he had been at the gym was false. His successive accounts of his movements were materially inconsistent. Several aspects were demonstrably false, including parts supported by purported alibi evidence. In those circumstances, the conviction could not be unsafe merely because he now advanced a different alibi: see paras 11, 33.
2. The relevant appellate question was whether the fresh evidence, if capable of belief, might afford a ground for allowing the appeal. It could not do so if the conviction remained safe: see para 8.
3. The court rejected the challenge to the cell-site evidence insofar as it showed that the appellant’s telephone was not in the area of the gym at the material time. The original T-Mobile database had remained unaltered. The incoming data had not displayed the defect found in the first outgoing-data extraction, and subsequent independent extractions consistently produced the same result. The outgoing data was also checked, within its limits, against charging records: see paras 34-37.
4. The undisclosed email identifying the flaw in the first extraction did not affect the safety of the conviction. The disclosed material itself would have revealed the problem, and the later consistent data was reliable: see paras 15, 38.
5. The asserted impossibility of travelling between later cell areas did not undermine the earlier data. Later network changes, the possible coverage of the relevant aerials, and the absence of reliable evidence of the appellant’s location meant that those call sequences did not cast doubt on the finding that he was not at the gym: see paras 40-51.

• Court of Appeal (Criminal Division): appeal against conviction dismissed.
• Crown Court at Birmingham: following a retrial before the Recorder of Birmingham, HHJ Saunders QC, the appellant was convicted of attempted murder and possessing a firearm with intent to endanger life.