Ismailaj, R v

Factual and Procedural Background

On 5 October 2012, the Appellant was convicted of multiple offences including rape and sexual assault of a child under 13. The offences involved two victims, a mother and her daughter, referred to as "S" and "J" respectively, both entitled to lifelong anonymity under the Sexual Offences (Amendment) Act 1992. The offences occurred between 1 January and 6 April 2012, when S was 24 years old and J was 3 years old. The case came to light when S approached police and disclosed she was being forced into prostitution under threat to her child. The Appellant was arrested, found in possession of a false identification document, and later pleaded guilty to that offence.

S and J, both Albanian nationals, gave evidence at trial. S testified that she was trafficked from Albania to Spain and then to the United Kingdom, forced into prostitution by the Appellant and another man. She claimed the Appellant sexually and physically abused her and J, using J as a hostage to control her. The Appellant denied these allegations, asserting a consensual relationship and alleging fabrication. The defence called witnesses to support the Appellant’s account, including his sister and a former colleague of S in Spain.

The jury convicted the Appellant on multiple counts including rape, causing prostitution, assault, cruelty, and sexual assault. He was sentenced to 18 years’ imprisonment on 3 January 2013.

Following conviction, the Appellant sought to appeal, relying primarily on the authenticity of stamps in Albanian passports belonging to S and J, which purportedly showed freedom of movement inconsistent with the prosecution case. Initial post-trial advice noted no arguable ground of appeal but recommended expert evidence on the passport stamps. Efforts to obtain official confirmation from the Albanian Embassy were undertaken by the original solicitors, but the Appellant changed legal representatives. There was a significant delay and little information about steps taken by subsequent solicitors. Eventually, the Appellant applied for an extension of time of over five years to apply for leave to appeal and for permission to adduce fresh evidence regarding the passport stamps.

Legal Issues Presented

1. Whether the court should grant an extension of time for the Appellant to apply for leave to appeal against conviction after a delay of approximately five years and eight months.
2. Whether the court should admit fresh evidence concerning the authenticity of passport stamps under section 23 of the Criminal Appeal Act 1968.
3. Whether the fresh evidence, if admitted, would afford any ground for allowing the appeal, particularly regarding the credibility of the victim "S".

Arguments of the Parties

Appellant's Arguments

• The fresh evidence, including official confirmation from the Albanian Embassy and a statement from the Chief of Police Commissariat in Albania, proves the passport stamps are authentic.
• This evidence undermines the credibility of "S", who allegedly lied about her freedom of movement and the circumstances of travel with her daughter.
• The fresh evidence would have been admissible at trial and could have led the trial judge to direct the jury differently regarding the credibility of "S".
• The Appellant has sought to progress his appeal despite delays caused by changes in legal representation and financial difficulties.

Respondent's Arguments

• There is no reasonable explanation for the failure to adduce this evidence at trial.
• The fresh evidence does not provide any ground for allowing the appeal because the issue of passport stamp authenticity was already considered at trial.
• The evidence would not have materially affected the jury's view of "S"'s credibility or the safety of the convictions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the application for an extension of time, noting the significant delay of over five years and the lack of adequate explanation for this delay. The Appellant failed to provide sufficient reasons for the long period of inactivity, including the change of solicitors and absence of detailed information on efforts to obtain the fresh evidence during or immediately after trial. The court was not persuaded that the Appellant had consistently sought to progress his appeal.

In analyzing the application to admit fresh evidence, the court applied the criteria from section 23(2) of the Criminal Appeal Act 1968. It accepted that the fresh evidence was capable of belief and would have been admissible at trial. However, the court found no reasonable explanation for the failure to adduce the evidence at trial, given the importance of the passport stamps and the time available between cross-examination and the jury's verdict.

The court further held that the fresh evidence did not provide any arguable ground for allowing the appeal. The authenticity of the passport stamps was not disproved at trial, and the fresh evidence only reinforced their genuineness. However, this did not prove that "S" had lied deliberately or that she was free to travel as she pleased. The passport stamps did not clarify whether "S" travelled alone or under compulsion. Moreover, the issue of travel arrangements was peripheral and did not affect the core allegations of abuse in the United Kingdom.

Finally, the court emphasized that the jury had rejected the Appellant’s version of events and accepted "S"'s evidence regarding the offences. The fresh evidence would not have altered this conclusion, and therefore the convictions were not unsafe.

Holding and Implications

The court REFUSED the applications for an extension of time to apply for leave to appeal and to admit fresh evidence. The appeal was dismissed on the grounds of excessive delay without adequate explanation and the absence of any prospect of success based on the fresh evidence.

The direct effect of this decision is that the Appellant's convictions and sentence remain upheld. No new precedent was established, and the decision reinforces the principle that late applications for appeal require clear justification, especially when fresh evidence could have been obtained earlier and does not materially affect the safety of the convictions.