R v Zaheer Shah

Evidence of a defendant’s communications with sex workers may be admissible as bad-character evidence where it materially bears on why he was seeking sexual activity and on his sexual mindset at the time of the alleged offence. The evidence need not show a previous offence of the same kind. The court may consider the material in the round, including extreme features, where extracting those features would deprive the jury of a fair picture of its significance. Under Criminal Justice Act 2003, ss 101(1)(d) and 103, relevance to an important matter remains subject to the fairness safeguard. Imperfect directions concerning the precise use of the evidence do not necessarily make a conviction unsafe where the trial remained fair and the prosecution evidence was compelling.

The appellant was convicted at Leicester Crown Court of rape and assault occasioning actual bodily harm. He was acquitted of intentional strangulation and sentenced to 15 years’ imprisonment for rape, with a concurrent sentence of 18 months for assault.

The prosecution relied on messages recovered from the appellant’s telephone, including communications with sex workers about sexual preferences, forceful sex and rape. The trial judge admitted the messages as bad-character evidence under Criminal Justice Act 2003, s 101(1)(d), and directed the jury on their use. The appellant appealed against conviction, arguing that the messages concerned consensual sexual activity and fantasies, had little probative value, and were unfairly prejudicial. The central issues were whether the messages were relevant to an important matter in issue and, if so, whether their admission had such an adverse effect on trial fairness that they should be excluded.

1. Appeal dismissed. The messages were correctly admitted and there was no error of law. In any event, if their admission had been erroneous, the convictions were safe.
2. The evidence was relevant to two connected issues under Criminal Justice Act 2003, s 101(1)(d). First, the appellant’s extensive communications with sex workers, including offers to meet and discussions of paid sexual activity, supported the prosecution case that he was driving around Leicester seeking sex rather than merely taking personal time. Secondly, the messages were relevant to his mindset, including an alleged liking for forceful sex without a condom and rough oral sex.
3. The prosecution was entitled to present the messages as a body of evidence. Their purpose was not to show that the appellant had previously raped someone, but to invite the jury to consider what sort of sex he enjoyed and whether that made it more likely that he had committed the alleged acts. The differences between consensual sex with prostitutes and the alleged non-consensual conduct affected weight, but did not remove relevance.
4. Under Criminal Justice Act 2003, s 103, the question was whether admission would have such an adverse effect on trial fairness that exclusion was required. Although references to rape, urination and defecation were extreme, their prejudice was outweighed by the probative value of the evidence considered as a whole.
5. The judge’s directions could have been more precise. They should not have suggested that the communications themselves established a tendency to commit rape, and could have explained more clearly how the evidence bore on mindset and warned against being swayed by extreme material. Those shortcomings did not affect overall fairness, and were not matters raised by the single ground of appeal.
6. The convictions were independently safe because the complainant’s account, injuries, complaint, DNA evidence, surrounding circumstances and independent witnesses provided strong evidence of guilt.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed after limited leave was granted on the bad-character evidence ground.
• Leicester Crown Court: The appellant was convicted of rape and assault occasioning actual bodily harm and acquitted of intentional strangulation. He was sentenced to 15 years’ imprisonment for rape and 18 months concurrently for assault.