Islam & Anor, R. v

Factual and Procedural Background

On 6 May 2021, in the Crown Court at The City before Judge Evans, the Applicant Islam, then aged 21, pleaded guilty to two counts of conspiracy to supply class A drugs. Following this, a trial was held before the same judge and a jury. On 28 May 2021, Islam was convicted of blackmail, two counts of false imprisonment, possession of an imitation firearm with intent, two counts of assault, and criminal damage. At the same trial, the Applicant Ali, then aged 20, was convicted of conspiracy to supply class A drugs, false imprisonment, assault, criminal damage, and possession of a bladed article, but acquitted of one count of false imprisonment.

On 10 February 2023, Judge Evans sentenced Islam to eight years and eight months' imprisonment, and Ali to an extended determinate sentence of 10 years, which included a seven-year custodial term and a three-year extended licence period, consecutive to a two-year immediate imprisonment sentence. Ancillary orders were made. Other co-accused were also convicted and sentenced for related offences.

Both Applicants seek leave to appeal their convictions. Islam applies for an extension of 379 days to renew his application for leave following a refusal by a single judge, now seeking to vary the grounds previously refused. Ali seeks an extension of 510 days to seek leave to appeal against conviction, with his application considered alongside Islam's due to similar points raised.

Both Applicants seek leave pursuant to section 23 of the Criminal Appeal Act 1968 to rely on purported fresh evidence from a witness, Cormack, who was not called at trial but was present during the alleged incident. The Applicants contend this evidence undermines the credibility of the prosecution witnesses. New counsel and solicitors have been instructed, and detailed submissions have been made by both sides.

Legal Issues Presented

1. Whether the Applicants should be granted extensions of time to renew or seek leave to appeal their convictions.
2. Whether the purported fresh evidence from the witness Cormack meets the statutory criteria under section 23 of the Criminal Appeal Act 1968 to be admitted on appeal.
3. Whether the fresh evidence undermines the safety of the convictions and justifies allowing the appeals.

Arguments of the Parties

Applicants' Arguments

• The delay in applying for leave to renew or seek leave to appeal is not the fault of the Applicants but due to late instruction of new counsel and difficulties tracing the witness Cormack.
• The fresh evidence from Cormack is capable of belief, as she was present throughout the events, and her account denies that any crimes occurred on the night in question.
• The Applicants argue that Cormack’s history of drug use should not discredit her evidence, as it aligns with the other witnesses who were also drug users.
• If accepted, this fresh evidence would seriously undermine the credibility of the prosecution witnesses and the safety of the convictions.
• There is a reasonable explanation for the failure to call Cormack at trial, including her chaotic lifestyle, hospitalisation, and the belief that she would not assist the defence.

Respondent's Arguments

• The delay in seeking leave to appeal is unacceptable and unexplained, and the Applicants have not shown good reason to extend time.
• The initial unsigned statements from Cormack are unreliable and not capable of belief due to lack of provenance and absence of sworn confirmation.
• The signed statement lacks photographic identification and sworn evidence confirming the witness’s identity.
• The police made efforts to trace Cormack, and there is no justification for the delay in obtaining her evidence.
• Cormack’s evidence conflicts with that of the police officer and the prosecution witnesses, whose accounts were corroborated by video footage and other evidence.
• The Applicants made a tactical decision not to call Cormack at trial as she was believed to be loyal to a prosecution witness and unlikely to assist the defence.
• The fresh evidence does not meet the statutory criteria and does not render the convictions unsafe.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first considered the Applicants’ applications for extensions of time to renew or seek leave to appeal. Applying the principles from R v James, the court found the delays substantial and inadequately explained, with no good reason to extend time.

Regarding the fresh evidence from Cormack, the court found the initial unsigned statements unreliable and untrustworthy. The only signed statement lacked proper identification and explanation for the lengthy delay in its production. The court noted the police had made reasonable efforts to trace Cormack and that the defence had not sought police assistance earlier.

The court observed that Cormack’s evidence was directly contradicted by multiple prosecution witnesses, corroborated by video footage and other physical evidence. The Applicants’ tactical decision not to call Cormack at trial, based on her perceived loyalty to a prosecution witness, further undermined their position.

Given these factors, the court concluded that the fresh evidence did not meet the statutory criteria under section 23 of the Criminal Appeal Act 1968, was not capable of belief, and did not undermine the safety of the convictions.

Finally, the court emphasized that there was no good reason why the evidence could not have been called at trial, as Cormack was known to the Applicants and could have been traced or requested to be traced earlier.

Holding and Implications

The court REFUSED the renewed application for leave to appeal by the Applicant Islam and the application for extension of time and renewed leave application by the Applicant Ali.

The direct effect is that both Applicants’ convictions and sentences remain upheld. No new precedent was established by this decision, and the court reaffirmed the strict approach to extensions of time and admission of fresh evidence on appeal, emphasizing the importance of timely and diligent conduct by appellants and their legal representatives.