Aslam v R.

A police account given by a witness who later resiles from it may properly remain before the jury where a reasonable jury could find the earlier account accurate and credible. The adequacy of directions depends on whether they give the jury sufficient help to assess that reliability in the circumstances.

Inaccurate and prejudicial cross-examination does not necessarily require discharge of the jury. A prompt and unequivocal direction to disregard the matters may cure the prejudice, unless there is a high degree of need for discharge.

The appellant was convicted at the Central Criminal Court, by a majority verdict, of the murder of Hayder Ali and was acquitted of the murder of Hayder’s brother. He received life imprisonment with a 20-year minimum term.

The prosecution relied substantially on police interviews in which Zak Uddin implicated the appellant, although Uddin later gave exculpatory evidence and was treated as hostile. The appeal challenged the admission and treatment of that evidence, inaccurate assertions made in cross-examination, the refusal to discharge the jury, and a newly discovered telephone call. The appellant also challenged the comparative length of his minimum term.

1. The appeal against conviction was dismissed. The trial judge was entitled to conclude that a reasonable jury could find Uddin’s police account of the appellant’s involvement accurate and credible. That conclusion was not undermined by the contention that Uddin was an accomplice, by his later recantation, or by the absence of a further police interview about matters suggesting his possible involvement (PACE 1984, section 78).

2. The judge was bound to treat Uddin as hostile. The directions adequately warned the jury to approach his police interviews with great caution and supplied the necessary help in assessing their reliability. A traditional accomplice or hostile-witness direction would have given insufficient weight to section 119 of the Criminal Justice Act 2003.

3. The prosecution’s inaccurate suggestions that other defendants had blamed the appellant should not have been made. However, the judge correctly asked whether there was a high degree of need to discharge the jury. His prompt and clear direction that the suggestions were inaccurate, were not evidence and must be put out of mind was capable of curing the prejudice. The conviction was not unsafe.

4. Permission to advance the fresh-evidence ground was refused. A telephone call in October 2007 could not, without an arguable evidential basis, undermine the reliability of Uddin’s police interviews in April 2006. Any possible benefit from further cross-examination was speculative.

5. The appeal against sentence was allowed only in part. The appellant was properly treated more seriously than co-defendants who had pleaded guilty as secondary parties and lacked intent to kill. Nevertheless, the overall range of minimum terms was too great. The specified minimum term was reduced from 20 years to 18 years under section 269(2) of the Criminal Justice Act 2003.

• Court of Appeal (Criminal Division): In [2011] EWCA Crim 2797, the court dismissed the conviction appeal, refused permission for the fresh-evidence ground, and allowed the sentence appeal only to reduce the minimum term to 18 years.
• Central Criminal Court: The appellant was convicted of the murder of Hayder Ali by a majority of 10 to 2, acquitted of the murder of Mohammed Ali, and sentenced to life imprisonment with a minimum term of 20 years less 308 days.