REGINA v MUHAMMAD HUSSAIN

In criminal appeals, lateness does not by itself prevent the admission of relevant bad-character evidence where no prejudice is shown. A jury need not be discharged because material may have been heard inadvertently unless the resulting prejudice is irremediable. The court should consider what was heard, its ambiguity and relevance, the defence case and the adequacy of directions. A submission of no case to answer should be rejected where the evidence leaves a genuine issue for the jury, including whether apparent agreement followed threats or pressure. Serious sexual offending by a young offender may justify a substantial custodial term. The appellate focus is the totality of the sentence, and interference is unwarranted unless it is arguably manifestly excessive.

The applicant was convicted at the Crown Court at Manchester of two rapes, taking indecent photographs of children and sexual assault. He received a total sentence of six years and two months’ detention. The prosecution had relied on a video recording as bad-character evidence. The applicant challenged its admission, the refusal to discharge the jury after the recording was played beyond the agreed stopping point, and the refusal to withdraw one rape charge on the basis of consent. He also challenged the sentence. A single judge refused extensions of time and leave to appeal. The renewed applications to the Full Court concerned whether there was any arguable ground that the convictions were unsafe or that the sentence was manifestly excessive.

Outcome. The renewed applications for extensions of time and leave to appeal against conviction and sentence were refused.

1. Bad-character evidence. Although the lateness of the application was rightly criticised, the video was plainly relevant and admissible on the relevant counts. It was capable of being regarded by the jury as reprehensible behaviour showing a relevant propensity in relation to the counts then under consideration. There was no arguable challenge to the ruling admitting it.
2. Discharge of the jury. There was no arguable basis for challenging either refusal to discharge the jury. It was uncertain whether any juror had heard the words at the end of the recording. Their speaker was unclear, and there was no allegation that the applicant or any other man had performed a sexual act without the complainant’s consent. The defence case itself included positive assertions that the applicant had engaged in sexual activity with teenage girls. The recording therefore had little prejudicial effect. The judge’s directions were not criticised, and the court rejected the submission that no direction could cure the alleged prejudice.
3. No case to answer. In light of the evidence, including the alleged threat to tell the complainant’s boyfriend that she had had sex with the applicant, whether she genuinely consented to the oral sexual activity was for the jury. It would have been wrong to withdraw that charge.
4. Sentence. The sentencing judge was entitled to find that the complainant was particularly vulnerable and that the offending against another young complainant was sufficiently serious to require a short custodial sentence. The judge had substantially reduced the notional adult sentences to reflect the applicant’s age. Consecutive sentences were not wrong in principle. The proper focus was the totality of the sentence, and the total term, although stiff, was not arguably manifestly excessive.

The court agreed essentially with the single judge’s reasons and concluded that an appeal against either conviction or sentence could not succeed.

• Court of Appeal (Criminal Division), [2022] EWCA Crim 399: renewed applications failed and were refused.
• Single judge: applications for extensions of time and leave to appeal against conviction and sentence were refused.
• Crown Court at Manchester: the applicant was convicted and sentenced to six years and two months’ detention.