R v Sheraz Hussain

On an application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, the decisive question is whether the material affects the safety of the conviction. Evidence which could render a serious conviction unsafe ought to be admitted. Conversely, material which cannot provide a ground to quash the conviction is not admitted in the interests of justice.

Low-quality audio which permits only a tentative attribution of gender, and does not connect the sound to a material event or person, cannot undermine a conviction supported by a strong circumstantial case. Its significance must be assessed against the evidence as a whole, including the strength of any alibi.

The applicant was convicted unanimously of murder at the Crown Court at Leeds on 13 July 2022, with two co-defendants. The Crown alleged a planned shooting connected with an ongoing gang feud. Its case relied on gang-association evidence, CCTV footage and telephone cell-site evidence. The applicant denied involvement and relied on an alibi that he was at his partner's home at the time of the shooting.

He applied 408 days late for leave to appeal against conviction. The single judge referred the application to the full court. The sole proposed ground relied on fresh analysis of audio from CCTV footage showing his partner's car leaving her home. The issue was whether an indistinct utterance, assessed as probably but not certainly male, could affect the safety of the conviction.

1. The court refused the application to adduce fresh evidence and the application for an extension of time to seek leave to appeal against conviction.
2. Under section 23(1) of the Criminal Appeal Act 1968, the ultimate issue was whether receiving the proposed evidence was necessary or expedient in the interests of justice. In this case that depended on whether it affected the safety of the conviction. If it did, the seriousness of the case required its admission. If it did not, it could provide no basis to quash the conviction and admission was not in the interests of justice under section 23(1) or section 23(2)(b).
3. The court considered the transcript and expert report de bene esse, and watched and listened to the recording. The purported utterance was brief, low-level and unclear. The expert could not identify either what had been said or who had said it. His tentative impression that it was probably an adult male was not based on scientific testing.
4. There was no evidence that the sound came from the Mercedes or from anyone connected with it. The camera also captured unrelated people near a communal parking area and a ginnel. The sound could therefore have come from a neighbour, passer-by, or another person near the property.
5. Against the weak alibi and the strong circumstantial case, the uncertain audio evidence was incapable of affecting the conviction's safety.

• Court of Appeal (Criminal Division) — refused the application to adduce fresh evidence and the application for an extension of time to seek leave to appeal against conviction: [2024] EWCA Crim 1223.
• Crown Court at Leeds — on 13 July 2022, the applicant was convicted unanimously by a jury of murder.