Ahmed v The Queen

Evidence of a complainant’s alleged misconduct is not admissible under section 100(1)(b) of the Criminal Justice Act 2003 unless it has substantial probative value concerning a matter in issue of substantial importance. Unrelated conduct which has no meaningful similarity or relevance to the alleged offence does not meet that test and may properly be excluded.

The need to safeguard the rights of a defendant found unfit to plead requires particular care, but it does not displace the ordinary rules governing admissibility of evidence.

The applicant faced two allegations of sexual offending against a six-year-old boy at a mosque. He was found unfit to plead in the Crown Court at Birmingham. A jury subsequently found that he had done the acts alleged, and he was made subject to concurrent two-year supervision orders.

On a renewed application for leave to appeal against the findings of fact, the applicant challenged the exclusion of an extract from the complainant’s school log. The extract described an incident involving the complainant and another child a few days before the alleged offences. The issue was whether that material was admissible as non-defendant bad-character evidence under section 100(1)(b) of the Criminal Justice Act 2003.

1. The court dismissed the renewed application for leave to appeal. The trial judge had correctly excluded the school-log material.

2. Section 100(1)(b) of the Criminal Justice Act 2003 required the proposed evidence to have substantial probative value concerning a matter in issue which was also of substantial importance in the case. The alleged playground conduct between two children was neither sexual conduct nor sufficiently similar to, or relevant to, the alleged conduct between the complainant and the applicant at the mosque. It had no possible relevance and did not begin to meet the statutory threshold.

3. The court accepted the need for utmost care to protect the rights of a person found unfit to plead, as stated in R v B [2010] EWCA Crim 1799. That safeguard did not make plainly inadmissible and irrelevant evidence admissible.

4. In any event, the proposed evidence could only have concerned the first count. It could not affect the separate finding on the kissing alleged in the second count.

5. The court directed that trial counsel’s costs be covered under Part IIIA of the regulations made under section 19(3)(d) of the Prosecution of Offences Act 1985.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against the findings of fact was dismissed.
• Crown Court at Birmingham: On 11 April 2013, the applicant was found unfit to plead and a jury found that he had done the acts alleged. On 4 June 2014, he was made subject to concurrent two-year supervision orders.