Ali v The Crown (Rev 1)

A conviction is not rendered unsafe by later retraction evidence where the appellate court finds that the retractions were procured by pressure or fabricated, and that the fresh evidence does not undermine the trial witnesses’ credibility. The court may reject an asserted irregularity in an identification procedure where the procedure involved a general inquiry and the witness was entitled to identify a person known to them. On the evidence before it, the court may also draw adverse conclusions from a coordinated attempt to create or deploy false evidence.

The applicant was convicted at Birmingham Crown Court of attempted murder and possessing a firearm with intent to endanger life. He was sentenced to life imprisonment with a minimum term of 10 years.

He sought leave to appeal against conviction on the basis of purported fresh evidence. This included retraction statements from two principal prosecution witnesses and evidence said to support those retractions. The respondent contended that the retractions and supporting material were fabricated or obtained through pressure.

The central issue was whether the fresh evidence undermined the credibility of the trial witnesses and made the conviction unsafe.

1. Application for leave to appeal against conviction refused. The court held that the fresh evidence did not make the conviction unsafe.

2. The retraction by Mohammed Khizar was false. The court accepted his evidence that he made it under pressure connected with the arrest of his brothers in Pakistan. The chronology, the false attempted-murder complaint in Pakistan, and the applicant’s side’s failure to disclose that incident to the United Kingdom police supported that conclusion.

3. The court rejected the evidence of Abdul Majid and Ashley Horton as incapable of belief. It also accepted that the evidence attributed to Zulfiqar Munsaf was fabricated. Those matters did not undermine Khizar’s credibility at trial; rather, they supported the conclusion that false material had been assembled to challenge the conviction.

4. The court rejected Sajid Mahmood’s later assertion that he had not seen the gunman. It was inconsistent with his identification of the applicant during the video-identification procedure, his later statements, his trial evidence, and his account to police in 2010. The challenge to the propriety of asking him to attend the procedure had no merit because he was asked a general question and knew the applicant.

5. The court concluded that the applicant and members of his family appeared to have conspired to pervert the course of justice. It invited the respondent to seek any appropriate order to recover wasted public funds if recovery were possible.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 2665, refused leave to appeal against conviction.

• Crown Court at Birmingham: Field J convicted the applicant of attempted murder and possession of a firearm with intent to endanger life on 13 December 2006, and imposed life imprisonment with a minimum term of 10 years the following day.