Mohammed v R.

Fresh evidence may justify quashing a conviction where it materially changes the assessment of identification evidence. Evidence linking an object found at the scene to another person who better matches the original descriptions may be considered together with the identification evidence, rather than treated as a separate issue. Evidence of that person’s relevant conduct may be admissible to rebut an apparent coincidence, even though it is not relied on to prove propensity. The Court of Appeal must assess the safety of each conviction in light of the fresh evidence and the prosecution case as a whole.

The Criminal Cases Review Commission referred two convictions for indecent assault under section 9 of the Criminal Appeal Act 1995. The convictions followed identification-parade evidence from two complainants and arose from assaults forming part of a suspected group of similar offences. The appellant had not previously obtained permission to appeal his convictions.

Fresh DNA testing linked a mobile telephone found near one assault to another man, S, whose appearance and circumstances more closely matched the original descriptions. The appeal concerned the admissibility and significance of that evidence, and whether the convictions remained safe.

1. Appeal allowed. The Court admitted the further DNA evidence in the interests of justice under section 23(1) of the Criminal Appeal Act 1968. It was unavailable before the CCRC intervention, would have been admissible at trial, and materially transformed the evidential landscape.
2. The mobile telephone could not properly be separated from the identification issue. Its location, condition and apparent connection with the assault made it significant. The DNA match supplied information previously unavailable about its probable user and linked the item to a man whose physical appearance better matched all the initial descriptions than the appellant’s.
3. The evidence concerning S’s 2003 caution was admissible under section 100(1)(b) of the Criminal Justice Act 2003. It was relevant not to propensity, but to rebut the coincidence that a man matching the descriptions, who had ridden a bicycle late at night in the same area and engaged in relevant unlawful conduct, had also apparently left the mobile telephone at the scene. The evidence had substantial probative value. Other character material would require a fact-sensitive determination at trial and was not necessarily admissible.
4. The fresh evidence significantly weakened the reliability of KF’s identification and tainted EM’s identification. The similarities between the assaults in nature, timing and location made it remote that different assailants were responsible. The Court was consequently not satisfied of the safety of either conviction, and both convictions were quashed.
5. A retrial was refused. Having regard to the age of the offences, the circumstances identified by the Court and the appellant’s continuing welfare issues, the public interest did not require a further trial.

• Court of Appeal (Criminal Division): The convictions were quashed following the CCRC reference under sections 9 and 13 of the Criminal Appeal Act 1995. The Court admitted fresh DNA evidence, allowed the appeal and refused a retrial.
• Norwich Crown Court: The appellant was found to have committed the two indecent assaults, was later convicted after becoming fit to stand trial, and received Hospital Orders with restrictions.