Patel & Ors v R.

Under section 23 of the Criminal Appeal Act 1968, post-trial material must be capable of belief and capable of providing a ground for allowing an appeal before it should be received as fresh evidence. A witness’s contradictory post-trial statements do not, without credible and testable evidence explaining them, establish that the witness’s trial evidence was unreliable. The court must remain alert to the risk that significant witnesses have been manipulated after trial, while deciding each appeal on its own merits.

A jury direction on credibility is adequate when, viewed in its full context, it sufficiently alerts the jury to the reasons for caution and permits them to assess the witness’s reliability.

The appellants were convicted at the Crown Court at Leicester in January 2008 of conspiracy to facilitate breaches of immigration law, contrary to section 1(1) of the Criminal Law Act 1977. The prosecution relied substantially on Yusuf Ameeji, an insider witness whose evidence implicated some of the appellants.

On appeal, all appellants relied on post-trial material showing that Ameeji had made conflicting statements and sworn affidavits retracting parts of his trial evidence. They contended that this made the convictions unsafe and that the trial judge’s warning about his evidence was inadequate. Three appellants also sought leave to appeal their sentences as excessive and disproportionate.

1. The appeals against conviction were dismissed, and the renewed applications for leave to appeal sentence were refused.
2. Section 23 of the Criminal Appeal Act 1968 required the court to consider, in particular, whether the proposed fresh evidence was capable of belief and might provide a ground for allowing the appeals. The appellants did not contend that Ameeji’s retractions, affidavits, or immigration assertions were true. They relied instead on their inconsistency to submit that he was inherently unreliable.
3. That approach was unsatisfactory. The affidavits had been made in suspicious circumstances which required explanation. No application was made to call Ameeji or the solicitors before whom the affidavits were sworn, although their evidence could have tested those circumstances. The court concluded that the material was not capable of belief and was more consistent with an attempt improperly to manipulate evidence to assist one or more appellants. It was therefore neither necessary nor expedient in the interests of justice to receive it.
4. R v Ishtiaq Ahmed [2002] EWCA Crim 2781 did not assist the appellants. In that case the retracting witness had given evidence before the Court of Appeal and convincingly explained why the later statements had been made. It illustrated the importance of examination and cross-examination when assessing alleged fresh evidence.
5. The trial judge’s credibility direction was legally adequate. The jury knew of Ameeji’s own immigration offending and admitted lies, and could readily assess his possible motives. They were entitled to accept all or part of his evidence after exercising caution. The convictions were therefore safe.
6. On sentence, the trial judge was best placed to assess each conspirator’s role, having tried both this case and the earlier related trial. The operation was sophisticated, prolonged and financially motivated. No sentence was manifestly excessive, and any comparative advantage obtained by a guilty co-conspirator did not show that these sentences were unduly severe.

The court added, as a general observation, that it would be astute to the risk of post-trial manipulation of important witnesses, although each case must be assessed on its own merits.

• Court of Appeal (Criminal Division). Dismissed the appeals against conviction and refused the renewed applications for leave to appeal sentence: [2010] EWCA Crim 1858.
• Crown Court at Leicester. In January 2008, a jury convicted the appellants of conspiracy to facilitate breaches of immigration law. Sentences of imprisonment were imposed on those convicted.