Uddin, R v

In a no-case submission, the judge must decide whether the prosecution evidence, taken at its highest, could permit a properly directed jury to convict. The assessment of a witness’s credibility, including the effect of inconsistencies, changing accounts and difficult behaviour, ordinarily remains for the jury. This is particularly important where a vulnerable witness gives evidence of offending of a kind liable to affect the manner in which an account is given.

Appellate decisions concerning allegedly unreliable witnesses are fact-specific unless they establish a relevant general principle. A sentencing disparity is justified where the offender’s role and culpability provide a sustainable basis for the difference. A victim surcharge under the applicable order could be imposed only where the sentence included a fine.

The applicants were convicted at Norwich Crown Court of offences arising from the sexual exploitation of a 13-year-old complainant. Uddin was convicted of conspiracy to traffic for sexual exploitation, supplying cannabis and two rapes. Ali was convicted of the conspiracy and sexual assault.

Both renewed applications for permission to appeal against conviction after a single judge had refused permission. Ali also renewed his application for permission to appeal sentence. They contended that the complainant’s numerous inconsistencies, false accounts and conflicts with other evidence meant that her evidence should have been withdrawn from the jury.

The central question was whether the evidence was so unreliable that no properly directed jury could safely convict.

1. The renewed applications were refused, save that leave was granted for the limited purpose of quashing the victim-surcharge orders.

2. The trial judge correctly left the evidence to the jury. Applying R v H and M [2010] EWCA Crim 1926 and the approach in R v Galbraith [1981] 73 Cr.App.R 124, the issue was whether the evidence, at its highest, could support conviction by a properly directed jury. The complainant had given definite evidence against each applicant on the counts of conviction and did not, in substance, resile from it.

3. The extensive inconsistencies, lies and conflicts with other evidence created matters requiring careful assessment. They did not make the evidence incapable of being left to the jury. The jury had to assess why the account changed and whether the difficulties in it fatally undermined the prosecution case. The cited decisions concerning allegedly inherently unreliable complainants turned on their own trial evidence and supplied no general principle that altered that conclusion.

4. The proposed fresh evidence concerning a prisoner did not satisfy the admission criteria and could not afford a ground for allowing Uddin’s proposed appeal. The jury had already been alerted to the possible benefits available to the prison witness who gave evidence of alleged confessions.

5. Ali’s longer sentence for the conspiracy was justified. The sentencing judge had a sustainable basis for finding that Ali targeted the complainant, caused the others to return for her and played a more culpable role in the exploitation. There was therefore no impermissible disparity with his co-accused.

6. Under article 3(2) of the Criminal Justice Act 2003 (Surcharge) (No2) Order 2007, a victim surcharge for the relevant period could be imposed only if the sentence included a fine. No fine was imposed. The surcharge orders against both applicants were quashed.

• Court of Appeal (Criminal Division): renewed applications for permission to appeal against conviction, and Ali’s renewed application concerning sentence, were refused. Leave was granted only to quash the victim-surcharge orders.
• Court of Appeal (single judge): permission to appeal against conviction was refused; Ali’s application concerning sentence was also refused.
• Crown Court at Norwich: the applicants were convicted on 27 February 2013 and sentenced on 26 April 2013.