R v Ali Naqvi

Where evidence has not been recovered, preserved or disclosed, a conviction is not unsafe merely because its possible value is speculative. The appellant must show a significant and demonstrable chance that the missing material would have been decisive or strongly supported a defined issue, assessed in the context of the whole case and the availability of a fair trial.

A sexual assault may be constituted by deliberate sexual touching through removing clothing or touching a naked body. It does not require an attempted vaginal touching. A lurking doubt cannot displace a properly directed jury verdict without reasoned analysis showing that the conviction is unsafe. In sentencing, the guideline starting point is the initial category-based point; all later movements are adjustments.

Following a jury trial at Snaresbrook Crown Court, Ali Naqvi was convicted of administering a substance with intent to enable sexual activity, contrary to section 61(1), and sexual assault, contrary to section 3, of the Sexual Offences Act 2003. He received concurrent sentences of seven years’ and 21 months’ imprisonment.

His applications for leave to appeal against conviction and sentence were refused by the single judge and renewed to the full court. He alleged disclosure and case-management failures, an erroneous restriction on cross-examination under section 41 of the Youth Justice and Criminal Evidence Act 1999, a misdirection on sexual assault, unsafe convictions, and a manifestly excessive sentence. The central issues were whether any alleged irregularity rendered the convictions unsafe and whether the sentencing approach was wrong.

1. The renewed applications for leave to appeal against conviction and sentence were refused. There was no arguable basis on which either conviction could be regarded as unsafe, and the total sentence was not excessive.
2. A complaint about missing or undisclosed evidence requires more than identifying an investigative or disclosure deficiency. Applying R v RD [2013] EWCA Crim 1592, the court distinguished speculation from a significant and demonstrable prospect that missing material would have been decisive or strongly supportive on a specific issue. The defence had obtained the relevant messages from the other witness’s phone and was able to cross-examine both witnesses about alleged collusion. The possible value of the unavailable CCTV and further French enquiries was speculative. No material prejudice or unfairness was shown.
3. The judge was entitled to refuse cross-examination about the sexual aspect of C’s earlier French complaint. There was no evidential foundation for alleging that complaint was false. The proposed questioning would therefore have been irrelevant sexual-history material directed only to discrediting her. The permitted questioning about alleged administration of a drug on the earlier occasion and her voluntary drug use avoided unfairness under section 41 of the Youth Justice and Criminal Evidence Act 1999.
4. The revised direction on count 2 was correct. Deliberately removing C’s clothing while holding her, and/or deliberately touching her naked body, was capable of constituting sexual assault under section 3 of the Sexual Offences Act 2003. The offence did not depend on proof that the applicant also touched or attempted to touch her vagina. The judge properly left the facts to the jury.
5. The court applied R v Pope [2012] EWCA Crim 2241; [2013] 1 Cr App R 14. A lurking doubt argument can exceptionally succeed only where reasoned analysis of the evidence or trial process inexorably establishes that the conviction is unsafe. It is not a licence to overturn a jury verdict on a subjective judicial hunch. The powerful evidence and the jury’s rejection of the applicant’s account did not approach that threshold.
6. On sentence, the court applied sections 59 and 60(4)(a) of the Sentencing Code. The correct sequence is first to identify the guideline category which most closely resembles the offence and its initial starting point. The court then adjusts that point for culpability, harm, aggravation and mitigation. The sentencing judge’s terminology did not reveal error, and the seven-year total was not manifestly excessive.

• Court of Appeal (Criminal Division): In [2024] EWCA Crim 958, the court refused the renewed applications for leave to appeal against conviction and sentence.
• Snaresbrook Crown Court: Following a jury trial before His Honour Judge Falk, the applicant was convicted of offences contrary to sections 61(1) and 3 of the Sexual Offences Act 2003 and sentenced to concurrent terms of seven years’ and 21 months’ imprisonment.
• Single judge: Applications for leave to appeal against conviction and sentence were refused.