Shah v R.

A conviction is not unsafe merely because a solicitor may have had a peripheral connection with prosecution evidence. A genuine conflict must be shown, together with a resulting loss of a fair opportunity to present the defence.

Unproved allegations, unsupported intelligence and withdrawn complaints will not ordinarily have substantial probative value as bad-character evidence. Their admission may create impermissible satellite litigation.

Jury directions must be assessed in the context of the whole summing up. A sentence of imprisonment for public protection may be justified by a significant risk of serious harm, but its minimum term should remain within the applicable guideline range where the indeterminate element already protects the public.

The appellant was convicted at a retrial in the Central Criminal Court of attempted murder, wounding with intent and possessing a firearm with intent to endanger life. He had fired a sawn-off shotgun at a man in a vehicle, causing severe and lasting injury.

He sought leave to appeal against conviction on grounds concerning an alleged conflict in his solicitors’ representation, the failure to pursue bad-character material against prosecution witnesses, the decision not to call a second alibi witness, and the trial judge’s directions. He also appealed an imprisonment-for-public-protection sentence with a 20-year minimum term.

The central questions were whether any asserted trial defect rendered the convictions unsafe, and whether the minimum term was excessive.

1. The renewed and proposed applications for leave to appeal against conviction were refused. The alleged connection between the appellant’s solicitor and a telephone call relied on by the prosecution did not establish a conflict of interest. Unlike R v Morris (David George), [2005] EWCA Crim 1246, no identifiable defence opportunity had been lost through any competing duty. Allegations concerning the solicitor’s honesty and missing file material did not provide a foundation for impugning the representation or the convictions.
2. The failure to repeat the bad-character application did not render the convictions unsafe. Under sections 100(1)(b) and 100(3) of the Criminal Justice Act 2003, the proposed material lacked substantial probative value. It consisted of allegations that could not be proved, unsupported intelligence, and matters in which the complainant had been acquitted or the accusers would not support the allegation. Admitting it would have produced the satellite litigation deprecated in R v Bovell & Dowds, [2005] EWCA Crim 1091, R v Miller, [2010] EWCA Crim 1153, and R v Braithwaite, [2010] EWCA Crim 1082.
3. Counsel could reasonably retain the strategy, adopted at the first trial, of not calling the second alibi witness. The witness’s accounts were inconsistent and potentially undermined the alibi advanced. There had been no material change of approach requiring renewed express instructions, unlike the circumstances in R v Irwin, [1987] 1 WLR 902.
4. The directions on alibi and adverse inferences, read with the summing up as a whole, made clear that the prosecution bore the burden of proof and that a false alibi could not alone prove guilt. They contained no material misdirection.
5. The appeal against sentence was allowed in part. The judge was entitled under section 225(3) of the Criminal Justice Act 2003 to impose imprisonment for public protection because the circumstances justified a finding of significant risk of serious harm. However, the 20-year minimum term was outside the applicable 27-to-35-year determinate sentencing range for the most serious attempted murders. Since the indeterminate sentence itself protected the public, the minimum term was quashed and replaced with 17 years, subject to credit for time on remand.

• Court of Appeal (Criminal Division): in [2015] EWCA Crim 1250, refused the applications concerning conviction and allowed the sentence appeal only by reducing the minimum term from 20 to 17 years.
• Central Criminal Court: following a retrial, convicted the appellant of attempted murder, wounding with intent and possessing a firearm with intent to endanger life; imposed concurrent sentences of imprisonment for public protection with a 20-year minimum term.