R v Hassan Syed Basharat & Anor

An error in directions that rendered a co-accused’s conviction unsafe does not automatically render another conviction unsafe. The appellate court must assess the error’s significance in the individual case, including the evidence available to the jury and the strength of the identification evidence.

Where a vulnerable or immature complainant is alleged to have been groomed, whether there was real consent, and reasonable belief in consent, will usually be matters for the jury. Evidence elicited late but properly admitted may be left to the jury with the other evidence. A thorough direction on consent need not reproduce the fact-specific approach required for disputed identification evidence.

The applicants were convicted at Bradford Crown Court, before His Honour Judge Andrew Hatton, of historical rape offences against the same complainant. Basharat was convicted of three counts and sentenced to 12 years’ imprisonment. Hussain was convicted of six counts and sentenced to 13 years’ imprisonment.

They renewed out-of-time applications for leave to appeal after a co-accused’s conviction from the same trial had been quashed. Basharat challenged the directions on identification and on a suggestion of housing benefit fraud by a defence witness. Hussain contended that the case, or alternatively two counts, should have been stopped, and that the consent directions were inadequate.

1. The renewed applications for leave to appeal were refused. The court also refused Basharat’s application for an extension of time. There was no need separately to address the extension applications once the proposed appeals lacked merit.

2. The errors identified in R v Sabir [2023] EWCA Crim 804 did not make Basharat’s conviction arguably unsafe. That decision established that the trial judge had not adequately highlighted a clash between the complainant’s evidence and that of a defence witness, and had inadequately directed the jury on identification. However, the evidence was materially different in Basharat’s case. The complainant had identified him at an identification procedure and knew him by his acknowledged nickname. The witness’s evidence was before the jury and was not necessarily incompatible with the allegations. Its potential significance was therefore substantially lower than in Sabir’s case.

3. The oral identification direction and the interval before the summary of Basharat’s evidence did not create an arguable ground. Nor was a further direction required about the suggestion that the defence witness had committed housing benefit fraud. The judge had clearly directed the jury to ignore it.

4. Hussain’s case was properly left to the jury. Where a vulnerable or immature person is alleged to have been groomed, the reality of consent will usually be for the jury, as recognised in R v Ali and another [2015] EWCA Crim 1279 and R v Usman and others [2021] EWCA Crim 502. The challenged evidence on counts 17 and 18 was properly admitted despite emerging in re-examination.

5. The consent direction was thorough, given orally and in writing. The judge was not required to draw together the factual matters suggested by the defence in the manner required where identification is disputed. The jury were entitled to reject Hussain’s account and to be sure that consent was neither genuinely given nor reasonably believed.

1. Court of Appeal (Criminal Division): The full court refused the renewed applications for leave to appeal: [2024] EWCA Crim 1496.

2. Court of Appeal (Criminal Division): A single judge had refused the applicants’ applications for leave to appeal.

3. Crown Court at Bradford: Basharat was convicted of three counts of rape and Hussain of six counts of rape. On 18 February 2022 they received sentences of 12 and 13 years’ imprisonment respectively.