Ali v R

On a very late application for leave to appeal, the court may assess the merits and the safety of the conviction when deciding whether to extend time. Serious delay may also matter because it can impair the availability and recollection of material needed for a fair determination.

Evidence falling within section 101(1)(d) of the Criminal Justice Act 2003 is not confined to propensity evidence. It may include relevant evidence tending to establish that a disputed identification of the defendant was correct.

Alleged failures by representatives, disclosure complaints, or proposed further evidence do not render convictions unsafe unless they could realistically affect the verdicts when the evidence is considered cumulatively.

Mohammed Ali was convicted at Sheffield Crown Court, before HH Judge Murphy QC and a jury, of murder and two attempted murders arising from a shooting in June 2006. He applied, more than two years out of time, for leave to appeal against conviction after the single judge had refused leave.

The application advanced complaints about trial representation, the handling of an alibi witness, hearsay evidence concerning that alibi, contact between a police officer and a juror, potential defence witnesses, disclosure, bad-character evidence, and hospital CCTV. The central issues were whether any ground rendered the convictions unsafe and whether the substantial delay should be excused.

1. Applications refused. The court declined to extend time and therefore refused leave to appeal. Although an extension application may be considered in the light of the merits, the exceptional delay also mattered because it had impaired the available evidence from the applicant’s former lawyers.

2. The proposed evidence that the applicant had raised an alibi with a solicitor shortly after arrest did not undermine the rationality of trial counsel’s decision not to call that solicitor. The evidence would have exposed the defence to wider questioning after waiver of privilege, did not explain the initial silence, and risked strengthening the prosecution case concerning the later false alibi witness.

3. There was no arguable criticism of the decision not to call Duncan Smith. The material showed that his evidence would have been highly damaging and that he had been advised not to answer questions that might incriminate him. The evidence obtained in the police investigation of his account was either admissible business or computer-record evidence, or could have been proved by witnesses if challenged.

4. The brief contact between DI Wragg and a juror gave no basis for further investigation, discharge of the juror, or discharge of the jury. The officer had disclosed the contact, there was no evidence of contamination, and the trial judge was entitled to find neither actual bias nor an appearance of bias.

5. The court rejected the remaining complaints. The proposed witnesses and alleged disclosure or CCTV deficiencies could not affect the safety of the convictions in light of the cumulative strength of the prosecution evidence. The evidence concerning firearms and body armour was relevant to disputed identification. If it was bad-character evidence, it was admissible under section 101(1)(d) of the Criminal Justice Act 2003, which is not confined to propensity evidence.

• Court of Appeal (Criminal Division): In Ali v R [2010] EWCA Crim 1619, the court refused an extension of time and leave to appeal against conviction.

• Crown Court at Sheffield: The applicant was convicted on 11 January 2007 of murder and two counts of attempted murder before HH Judge Murphy QC and a jury.