R v Ashkan Salehi

Evidence is admissible only where it is logically probative of a fact in issue. A defendant’s unchallenged account of a mental disorder does not make expert evidence admissible merely because it repeats that account; the expert material must bear on the specific issue, such as whether the defendant could form the required intention. Where criminal-damage counts are prosecuted solely on the basis of intentional damage and the defence is accident, the jury must acquit unless sure of intention. A judge may exclude a hypothetical issue of recklessness that was not raised and has no evidential basis. An answer to a jury question that could be clearer does not render convictions unsafe absent legal error or undermining of the burden of proof or defence.

The appellant, an Iranian national diagnosed with PTSD, was charged in the Crown Court at Inner London with assaulting an emergency worker and two offences contrary to section 1 of the Criminal Damage Act 1971. His defence was that he touched a nurse respectfully and damaged two items accidentally while distressed and unsteady. The jury acquitted him of assault but convicted him of both criminal-damage offences, for which absolute orders of discharge were made.

On appeal, he challenged the exclusion of psychiatric expert evidence and the judge’s answer to a jury question concerning panic, recklessness and intention. The central issues were whether the evidence was relevant to intentional damage and whether the directions rendered the convictions unsafe.

The appeal was dismissed and the convictions were held to be safe.

1. Admissibility of expert evidence. Evidence must be logically probative or disprobative of a fact in issue. Its admissibility requires analysis of the specific issues in the case and the purpose for which it is adduced. The court endorsed the approach in R v BRM [2022] EWCA Crim 385 and R v T(AB) [2007] 1 Cr App R 4.
2. On the criminal-damage counts, the factual issue was whether the appellant had acted intentionally or accidentally. Dr Bisht’s evidence did not suggest that a panic attack could prevent intention, make deliberate intent less likely, or affect the appellant’s tendency to lose his balance. It therefore did not bear on the crucial issue of intention. The judge was entitled to exclude it.
3. Jury directions. The jury’s question raised recklessness hypothetically. Although conviction for reckless criminal damage was legally possible under section 1 of the Criminal Damage Act 1971, the prosecution had confined its case to intentional damage, and recklessness had not been raised or supported by evidence. The judge was entitled to direct the jury back to the issues actually arising.
4. The judge’s answer could have been expressed more clearly, but it contained no error of law. It did not undermine the burden or standard of proof or the defence, and it ended with an unequivocal direction to acquit if accidental damage remained possible. The appeal accordingly failed.

1. Court of Appeal (Criminal Division): The appeal against conviction, brought by leave of the single judge, was dismissed.
2. Crown Court at Inner London: Following a February 2023 jury trial, the appellant was acquitted of assaulting an emergency worker, convicted of two criminal-damage offences, and given absolute orders of discharge.