R v Nasser Ahmed Nawaz

A criminal jury is not required to receive a direction in the language of a civil practice direction concerning the fallibility of human memory. The fairness of directions on memory, delayed complaint and differing accounts must be assessed as a whole. Directions are sufficient where they fairly identify the defence case, require the jury to consider inconsistencies and delay, and make clear that the complainant’s evidence cannot be relied on unless the jury is sure it is a true account rather than a misremembered event.

The applicant was convicted in his absence at the Crown Court at Bradford of rape contrary to section 1 of the Sexual Offences Act 2003, and was sentenced in his absence to 12 years’ imprisonment.

Following refusal by a single judge, he renewed his application for leave to appeal against conviction. A preliminary issue was whether his solicitors had authority to renew it while he remained at large and had ceased giving instructions. The proposed ground alleged that the trial judge’s directions on memory and delayed complaint were unfair because they did not adopt the civil guidance on the fallibility of memory.

The central issue was whether the jury directions, particularly those governing the assessment of the complainant’s evidence, were fair.

1. The renewed application for leave to appeal against conviction was refused. The solicitors had authority to renew the application. Applying R v Okedare [2014] 1 WLR 4071, the court was satisfied that the applicant knew of the single judge’s refusal, had expressly instructed a renewal, and had been advised of the possible adverse consequences. His later failure to provide funds or further instructions did not negate that authority.

2. The directions were fair. The court considered the directions as a whole, rather than isolating one passage. They required the jury to consider the defence case that the complainant’s memory had been affected by time and drug use, any inconsistencies in her accounts, and her failure to report the allegation on earlier occasions.

3. No special criminal direction was required in the terms of paragraph 1.3 of the Civil Procedure Rules Practice Direction 57AC or the observations in Gestmin v Credit Suisse [2013] EWHC 3560 (Comm). That civil guidance concerned a different litigation context. The issue at trial was whether the jury was sure that the complainant’s account was truthful, not a nuanced dispute about the recollection of a meeting.

4. The jury had heard the defence submissions and had been expressly directed that they could not rely on the complainant’s account if they thought that she did, or might have, misremembered it. The proposed ground therefore had no real prospect of success.

• Court of Appeal (Criminal Division): The renewed application for leave to appeal against conviction was refused.

• Single judge of the Court of Appeal (Criminal Division): Leave to appeal against conviction was refused.

• Crown Court at Bradford: On 1 December 2023 the applicant was convicted in his absence of rape. On 8 December 2023 he was sentenced in his absence to 12 years’ imprisonment.