Ali & Anor, R v

Evidence consisting of sexually explicit text messages is not hearsay when it is adduced only to prove that the messages were sent, rather than the truth of their contents. Its exclusion for unfair prejudice remains a matter for the trial judge’s discretion.

A judge may refuse to entertain an application to discharge a jury founded on material withheld from the prosecution. The interests of co-accused, jurors and the administration of justice must also be considered. In assessing dangerousness, a sentencing judge may rely on pre-sentence reports and observations made during the trial.

The appellants were convicted at Stafford Crown Court of offences involving the grooming, prostitution and trafficking for sexual exploitation of vulnerable girls. Ahdel Ali was also convicted of rape and offences of sexual activity with children.

Ahdel Ali renewed his application for leave to appeal against conviction. Both appellants appealed their extended sentences and the sexual offences prevention order. The conviction challenges concerned, among other matters, a proposed jury discharge, text-message evidence, limits on cross-examination, the rape direction and the safety of the jury’s verdicts.

The sentencing appeals challenged findings of dangerousness, the length of the custodial and extension periods, and the breadth of the prevention order. The court also identified technical errors in parts of the sentences imposed.

1. Conviction appeal. The court refused Ahdel Ali leave to appeal against conviction. The trial judge was entitled to reject an application to discharge the jury which depended on medical and other material that the defence would not permit the prosecution to inspect. Such an application affects more than the applicant; it also affects the co-accused, the prosecution, jurors and the administration of justice. In any event, the further material did not show that the refusal to discharge the jury was wrong.

2. The sexually explicit text messages were admissible. They were relevant as evidence that they had been sent, not as proof that their contents were true, and therefore did not truly raise a hearsay issue. Whether they should nevertheless be excluded as unfairly prejudicial was a discretionary matter for the judge.

3. The remaining complaints disclosed no unfairness or perversity. The judge could restrict lengthy cross-examination of a distressed complainant about a false allegation she had already admitted, particularly where the details were reduced to writing and put before the jury. The directions on rape were adequate. The credibility, reliability and age-related evidence concerning the complainants were matters properly left to the jury. Taken individually and cumulatively, the grounds gave rise to no lurking doubt.

4. Sentence appeals. The court upheld the findings that both appellants were dangerous and that extended sentences were justified. The judge was entitled to rely on the grave and exploitative offending, the psychological harm involved, the appellants’ lack of remorse and victim insight, the pre-sentence reports, and his own observations during trial. Youth, limited relevant antecedents and family circumstances did not preclude that assessment. The severe custodial terms were justified by the seriousness of the offending.

5. The appeals succeeded only to correct technical errors. Sentences exceeding the statutory maximum were replaced with lawful extended sentences achieving the judge’s intended maximum overall period. An ineligible extended sentence was replaced with a concurrent one-year term. The sexual offences prevention order was varied so that it did not restrict contact with either appellant’s own children, and so that the relevant consent requirements operated alternatively rather than cumulatively. Otherwise, the sentence appeals were dismissed.

• Court of Appeal (Criminal Division): Conviction appeal refused; sentence appeals allowed only to correct unlawful or technical elements and to vary the sexual offences prevention order. The remaining challenges were dismissed.
• Crown Court at Stafford: On 8 August 2012, the appellants were convicted following trial before HHJ Patrick Thomas QC and a jury. On 5 October 2012, each received an extended sentence and a sexual offences prevention order.