Mohammed v R

On a criminal appeal based on fresh evidence, the Court of Appeal must evaluate the evidence itself in the context of the whole trial case. The decisive question is whether it raises a reasonable doubt about guilt. The likely effect on a jury is only a useful cross-check in a difficult case. Evidence which is superficially plausible may fail where its provenance, consistency, identification method and fit with the trial evidence are materially defective. An extended licence under section 236A of the Criminal Justice Act 2003 cannot be imposed where the statutory condition that the victim be a child under 13 is absent.

The applicant was convicted of rape at Liverpool Crown Court after a jury trial. The prosecution relied on the complainant’s immediate distressed complaint and the inconsistency between the applicant’s police account and his trial account. The defence maintained that the sexual activity was consensual.

Several months after conviction, the applicant sought leave to appeal on the basis of evidence from a retired taxi driver, who said that a passenger called Steven had offered him oral sex instead of paying a fare. The court heard that evidence provisionally. The central issue was whether it was sufficiently reliable and significant to render the conviction unsafe. A separate technical issue concerned the extended-licence component of the sentence.

The court refused permission to appeal against conviction, but allowed the appeal against sentence.

1. Fresh evidence. Under section 23(2) of the Criminal Appeal Act 1968, and applying Dial v Trinidad and Tobago [2005] UKPC 4, the court had to assess the fresh evidence itself in the context of all the trial evidence. The primary question was whether it raised a reasonable doubt about guilt. The possible effect on a jury was only a cross-check if the court considered the case difficult.
2. Application of that test. The prosecution case at trial had been very strong. It was supported by the applicant’s changing accounts and by the complainant’s distressed state immediately afterwards. Although the taxi driver’s account was superficially plausible, it contained serious defects. The defence had not produced the newsagent who was said to link the witness to the applicant’s wife. There was a fundamental conflict about who first made contact. The witness’s photographic identification was worthless: he had only a fleeting view, gave no prior description, saw no comparable photographs and identified the complainant after a long delay. The alleged journey and the sequence of the proposed sexual conduct were also improbable or materially different from the trial evidence.
3. Disposition on conviction. The evidence raised no reasonable doubt about guilt. It failed the requirements in section 23(2)(a) and (b), was not formally received, and the application for permission to appeal against conviction was refused.
4. Sentence. The extended licence imposed under section 236A of the Criminal Justice Act 2003 was unlawful because the rape victim was not a child under 13. The court quashed the sentence of seven years and six months and substituted imprisonment for six years and six months.

• Court of Appeal (Criminal Division) — in [2018] EWCA Crim 675, refused permission to appeal against conviction based on fresh evidence, but allowed the appeal against sentence and substituted a sentence of six years and six months’ imprisonment.
• Crown Court at Liverpool — on 16 January 2017, convicted the applicant of rape and imposed a sentence comprising six years and six months’ custody plus a one-year extended licence.