R v Mahboob Ali

Where a prosecution introduces a defence witness statement after the defence case to rebut an alibi, the court must identify the basis of admissibility. A statement may be admitted as non-hearsay if it is relied on as false evidence showing that the defendant contrived a false defence. If it is relied on as true evidence of the matters stated, it is hearsay and requires a statutory gateway. Those bases are mutually inconsistent. Fairness may generally require the allegation that the defence was fabricated to be explored with the defendant in cross-examination. Confused reasoning and inappropriate hearsay directions do not necessarily make a conviction unsafe where the evidence was admissible on a proper basis, that basis was identified to the jury, and the remaining evidence was overwhelming. A sentence appeal may be allowed solely to correct credit for qualifying-curfew days.

The appellant was convicted at Snaresbrook Crown Court of robbery, contrary to section 8(1) of the Theft Act 1968, and sentenced to seven years’ imprisonment. After the defence case, the prosecution obtained permission to read a statement from an absent witness whom the defence had identified in support of an alibi. The trial judge admitted it as rebuttal evidence, not relied on for its truth, but alternatively considered hearsay gateways and gave conventional hearsay directions.

The appeal challenged the classification of the statement, its admissibility under the Criminal Justice Act 2003, fairness under section 78 of the Police and Criminal Evidence Act 1984, and the jury directions. A renewed sentence application raised disparity and the treatment of qualifying-curfew credit. The central issues were the proper basis for admitting the statement and whether the resulting errors made the conviction or sentence unsafe.

1. Conviction appeal dismissed. The Court identified two mutually inconsistent bases for admitting the witness statement. On the first, the statement was relied on as false evidence showing that the appellant had contrived a false defence and procured people to support it. The jury would need to be sure of the statement’s falsity for that purpose, but the statement was not hearsay because its truth was not relied on. On the second, the statement was relied on as true evidence of the matters stated. It was then hearsay and would require a statutory gateway, such as section 116 or section 114(1)(d) of the Criminal Justice Act 2003.
2. The trial judge erred in treating the second basis as an alternative. No one at trial regarded the statement as true. The judge’s treatment of the reliability factors in section 114(2) of the Criminal Justice Act 2003 was therefore based on a false premise. The conventional hearsay directions also made little sense on the true basis of admission. The prosecution’s closing speech further confused the position by relying on the witness as truthful.
3. Despite those deficiencies, the statement was admissible on the first basis. The judge’s direction accurately explained that the prosecution relied on the statement because inconsistencies could undermine the alibi. Fairness would generally require an allegation that a defence was fabricated to be explored with the defendant in cross-examination, but the deficiencies here did not render the conviction unsafe. The prosecution evidence was overwhelming, and the alibi was undermined by implausible coincidences, failures to mention it in interview, and the co-accused’s evidence.
4. The disparity ground of sentence appeal was not arguable. However, leave was granted on the limited issue of qualifying-curfew credit. No declaration under section 325(2) of the Sentencing Act 2020 had been made in open court, as required by section 320(4). The appeal was allowed only so that the order recorded credit of 174 days; the sentence was otherwise unaffected.

• Snaresbrook Crown Court: The appellant was convicted of robbery on 24 February 2023 and sentenced on 20 April 2023 to seven years’ imprisonment.
• Court of Appeal (Criminal Division): The conviction appeal was dismissed. Leave to appeal against sentence was granted on the qualifying-curfew issue, and the sentence appeal was allowed only to record credit of 174 days.