R v Rashid Mahmood

Deficient legal representation, however serious as a matter of professional conduct, does not itself make a conviction unsafe. The appellate question is whether identifiable errors affected the fairness or safety of the trial.

A failure to make a contemporaneous signed record of a defendant’s decision not to give evidence breaches endorsed best practice, but is not determinative where other credible evidence establishes that informed advice was given. An alleged concession in closing submissions must be assessed in the context of the speech and the evidence as a whole.

The applicant was convicted at Birmingham Crown Court of conspiracy to fraudulently evade the prohibition on the importation of diamorphine. He and a co-accused were each sentenced to 18 years’ imprisonment.

More than 1,300 days late, he sought an extension of time and leave to appeal against conviction. He alleged inadequate preparation by his solicitor, inadequate advice about giving evidence, and an unauthorised concession by leading counsel in closing submissions. He also sought to rely on fresh witness evidence concerning the conduct of his former representatives.

The central issue was whether the alleged deficiencies rendered the conviction arguably unsafe.

1. The applications were dismissed. There was no satisfactory explanation for the substantial delay, although the court considered the merits because of the single judge’s concerns. The conviction was not arguably unsafe.

2. Applying R v Day [2003] EWCA Crim 1060, incompetent representation may justify professional sanction but cannot, without more, establish a ground of appeal. The applicant had to identify errors that affected the safety of the conviction. The solicitor’s client-care failures, including delayed preparation and incomplete pursuit of expert evidence, had not been shown to taint trial counsel’s conduct or the trial’s fairness.

3. The court accepted the evidence of leading and junior counsel that the applicant received advice about the advantages and disadvantages of giving evidence. It found that he made an informed decision not to testify. Counsel’s answer to the trial judge’s inquiry under section 35 of the Criminal Justice and Public Order Act 1994 was compelling evidence of that advice.

4. The absence of a signed contemporaneous endorsement was contrary to the best practice endorsed in R v Good (Alfie) 2016 EWCA Crim 1869. It did not require the court to reject otherwise credible evidence that adequate advice had been given.

5. The disputed sentence in the closing speech was, viewed objectively and in its full context, no more than a passing attempt to advance an innocent explanation for the telephone evidence. It did not undermine the defence so as to render the conviction unsafe. The prosecution case was very strong.

• Court of Appeal (Criminal Division) — in [2023] EWCA Crim 1358, dismissed the late applications for permission to appeal against conviction after finding that the conviction was not arguably unsafe.
• Birmingham Crown Court — convicted the applicant on 12 December 2018 of conspiracy to fraudulently evade the prohibition on the importation of diamorphine, and sentenced him on 14 December 2018 to 18 years’ imprisonment.