Aboulkadir & Ors, R v

A conviction is not unsafe merely because a trial judge has acted impatiently or made errors in courtroom management. The appellate court must assess the trial as a whole and decide whether the conduct deprived the defendants of a fair trial.

Medical evidence about a witness’s mental condition is justified where it may show an incapacity to give a true or reliable account. It is unnecessary where the jury can fairly assess credibility from the available material and cross-examination. A proposed cross-examination about an earlier sexual allegation requires a proper evidential basis that it was false and must not distract the jury into collateral issues.

Whether an accused reasonably believed a child was at least 16 is a question for the jury on all the evidence. What the child said about age is relevant but not determinative.

Five applicants were tried at Maidstone Crown Court before HH Judge Joy and a jury. They were convicted of offences including rape and sexual activity with children aged 13 or 14. Their cases largely turned on whether they knew, or reasonably believed, that the complainants were aged 16 or over.

The applicants sought leave to appeal against conviction. They alleged that the judge’s conduct and summing-up made the trial unfair. They also challenged rulings concerning a recorded Achieving Best Evidence interview, psychiatric assessment of the complainants, cross-examination about an alleged earlier sexual assault, and the sufficiency of the evidence on reasonable belief as to age.

The central issue was whether any individual ruling, or the cumulative conduct of the trial, rendered the convictions unsafe.

1. Applications for leave to appeal were refused. Although the court criticised several aspects of the judge’s conduct, the convictions were safe. The proper question was whether the trial, viewed as a whole, had been fair. The judge had improperly curtailed some submissions, handled an objection in the jury’s presence in an unsatisfactory way, and created a perception of impatience towards the defence. Those matters were regrettable but limited. They did not cause the jury to think that the judge favoured the Crown or deprive the applicants of a fair trial.

2. The judge correctly refused psychiatric assessments of the complainants. The material did not show an incapacity to give reliable evidence of the kind contemplated in Toohey v The Metropolitan Police Commissioner (1965) 49 Cr. App. R. 148. The jury could assess reliability through the recorded interviews, the disclosed material and cross-examination.

3. The refusal to permit cross-examination of JB about a further alleged sexual assault was within the judge’s discretion. There was no sufficient evidential basis for alleging that her earlier complaint was knowingly false. The proposed inquiry risked collateral distraction. The factual basis was materially weaker than that in R v Garraxo [2005] Crim. L.R. 883 CA, and the court applied the fact-sensitive approach stated in R v V [2006] EWCA Crim 1901.

4. The court also concluded that the proposed questions engaged section 41 of the Youth Justice and Criminal Evidence Act 1999. They were prohibited by section 41(4), and no exception under section 41(3) or 41(5) was available. The section 41 restrictions could not be avoided by characterising the material solely as evidence of bad character under section 100 of the Criminal Justice Act 2003. In any event, the material lacked substantial probative value on JB’s credibility.

5. The judge was entitled to leave the cases against Jimale and Zeregergis to the jury. A complainant’s account of what she said about her age was relevant but did not determine whether an applicant reasonably believed she was at least 16. The jury could consider her whole appearance, manner, conduct and the surrounding evidence. The remaining evidential and summing-up complaints disclosed neither a misdirection nor unfairness.

• Court of Appeal (Criminal Division). The applicants’ applications for leave to appeal against conviction were referred to the Full Court. The court refused leave, holding that the convictions were safe.
• Maidstone Crown Court. On 21 February 2008, the jury convicted the applicants of rape and/or sexual activity with children. Aboulkadir received imprisonment for public protection, and the other applicants received determinate sentences.