R v Mubarak Abdi Jibril

A conviction is unsafe only where the matters raised on appeal arguably undermine its safety. An alleged failure by trial representatives to advance or investigate an alternative-perpetrator account will not meet that test where the account does not address all convictions, is speculative or late, and does not rebut the circumstantial evidence accepted by the jury.

Legitimate tactical advice may properly take account of the risk that advancing an account which implicates another person will expose a defendant to bad-character evidence under the Criminal Justice Act 2003.

The applicant was convicted at Leicester Crown Court of wounding with intent and reckless arson. He received an extended sentence of 12 years’ custody with a five-year extension for the arson, and a concurrent four-year sentence for wounding.

After the single judge refused permission to appeal, fresh representatives sought leave to amend the notice of appeal. They contended that trial representatives had failed to advance and investigate instructions that another man, Max, had admitted stabbing the complainant and that a neighbour could give evidence of Max’s bullying of him.

The central issue was whether those matters arguably rendered the convictions unsafe.

1. The court refused leave to amend the notice of appeal and would refuse leave to appeal against conviction. The sole question was whether the convictions were unsafe.

2. The additional account concerning Max could not arguably affect the safety of the arson conviction. On the applicant’s own proposed case, Max had left before the fire was set, and there was no evidence that he returned.

3. The complaint that the solicitors failed to investigate Max was a very late afterthought. The applicant gave no adequate explanation for not raising it in his original grounds. It depended on undue speculation, since it had always been open to the former solicitors to investigate, or seek investigation of, the relationship between Max and the complainant.

4. The jury knew that the applicant denied being present when either offence occurred. In convicting, it must have rejected that account and been sure that he, rather than one of the limited alternative candidates, was present and committed both offences. His proposed account of a telephone call in which Max admitted the stabbing was inconsistent with that necessary rejection and did not rebut the circumstantial evidence placing him at the flat.

5. The trial advocate’s advice was within the range of legitimate and proper tactical advice. It was reasonable to take account of the risk that blaming another person could lead to bad-character evidence under sections 101(1)(g) and 106 of the Criminal Justice Act 2003. The prosecution was entitled to rely on circumstantial evidence, and the applicant’s unsupported assertion that Max was the perpetrator could not advance the application.

• Court of Appeal (Criminal Division): In [2023] EWCA Crim 1050, refused leave to amend the notice of appeal and would refuse leave to appeal against conviction.
• Crown Court at Leicester: On 22 July 2021, convicted the applicant of wounding with intent and reckless arson. On 17 December 2021, imposed an extended sentence for arson and a concurrent sentence for wounding.