Akhtar, R. v

Hearsay identification evidence is not inadmissible merely because the maker cannot be questioned about the circumstances of the identification. Its admissibility and weight must be assessed in the context of all the evidence, with a clear direction identifying any material weakness.

Where the statutory gateway for an unfit witness is met, exclusion remains discretionary. An appellate court will not interfere with that discretion absent irrationality. A rational trial tactic adopted on clear advice cannot later be reopened simply because it proved unsuccessful. Fresh evidence must undermine the safety of the conviction, and robust directions may cure prejudice from relevant evidence in a multi-handed trial.

The appellant was convicted at Stafford Crown Court, after a retrial, of attempted murder arising from the deliberate driving of a car into Mohammed Aziz. He was later convicted of violent disorder arising from an earlier confrontation between two groups.

He challenged the admission and direction concerning hearsay evidence of a telephone call made by Aziz shortly before the attack. He also sought to challenge trial counsel’s decision not to cross-examine Aziz’s brother, to adduce fresh evidence concerning that brother, and to impugn the fairness of the violent-disorder trial after repeated references to Aziz’s condition.

The central issues were whether either conviction was unsafe and whether the proposed further grounds and fresh evidence should be admitted.

1. Appeals dismissed. The court held that both convictions were safe. It refused permission to advance the further grounds and refused the applications to adduce fresh evidence.

2. Section 118 of the Criminal Justice Act 2003 preserves res gestae as a hearsay exception. It may therefore provide a route to admissibility independently of the statutory gateways. Here, however, there was no material difference between that route and admissibility under section 116(2)(b), because Aziz was unfit to give evidence. The trial judge correctly used the stepped approach in R v Riat [2013] 1 Cr App R 2.

3. The hearsay identification was properly admitted. The court rejected the submission that uncertainty about the conditions in which Aziz made the identification required its exclusion. Such uncertainty is often unavoidable where identification is contained in hearsay. The jury could safely assess the evidence in the light of the surrounding evidence and the significant conceded error in naming Rehan Akhtar. The judge’s warning directed the jury to scrutinise the evidence and give it appropriate weight.

4. Once the section 116(2)(b) gateway was satisfied, admission was subject to the judge’s discretion. The refusal to exclude the evidence under section 78 of the Police and Criminal Evidence Act and section 122(6) of the Criminal Justice Act 2003 was not irrational and could not be impugned.

5. The decision not to require Aqil to attend for cross-examination was a rational tactical choice. It was made after clear advice, with the appellant’s agreement, because the witness might give unpredictable and prejudicial answers. The later material about Aqil did not undermine the safety of the attempted-murder conviction when the evidence was considered as a whole.

6. In the violent-disorder trial, Aqil was entitled to explain his no-comment interview and emotional state, although that evidence risked prejudice. The judge’s firm direction confined its relevance and instructed the jury not to use allegations about Aziz’s injuries against the Akhtars. The refusal to discharge the jury or sever the indictment did not render the trial unfair.

Appellate history

• Court of Appeal (Criminal Division) Dismissed the appeals against conviction, refused permission for further grounds, and refused the applications to receive fresh evidence: [2018] EWCA Crim 2872.
• Crown Court at Stafford The appellant was convicted, after a retrial, of attempted murder on 8 June 2016 and of violent disorder on 21 July 2016.