Ali, R. v

Factual and Procedural Background

This is an appeal against conviction and a renewed application for leave to appeal against sentence. The Appellant, aged 29 at the time, was convicted on 24 February 2023 in the Crown Court at Snaresbrook before Her Honour Judge Levitt KC and a jury, of Robbery contrary to section 8(1) of the Theft Act 1968 (Count 1). On 20 April 2023, the Appellant was sentenced to 7 years' imprisonment and ordered to pay a surcharge of £190. A procedural issue arose regarding the correct credit for days spent on a qualifying curfew, which is addressed in the renewed application for leave to appeal against sentence.

The appeal hearing took place on 7 December 2023, with judgment reserved pending receipt of further transcripts clarifying relevant Crown Court proceedings. The Appellant was tried jointly with a co-accused, who was also convicted but whose appeals were refused and are not relevant to the present issues.

The facts of the case involve a robbery on 19 November 2021, when the victim, a delivery driver for a parcel company, was attacked and his van stolen by two masked men. One man wore the victim's company uniform and the other was dressed in black and threatened the victim with a knife. The stolen van and contents were recovered nearby, with CCTV and other evidence showing involvement of the Appellant and the co-accused. Both had previously worked for the parcel company. Phone and vehicle tracking data placed the Appellant and co-accused near the scene before and after the robbery. The Appellant denied involvement and claimed his vehicle was not used at the relevant time.

The prosecution case relied on circumstantial evidence including CCTV, automatic number plate recognition (ANPR), call and cell site data, and adverse inferences from the defendants' failure to mention relevant facts in interviews, including the Appellant's failure to raise an alibi at that stage.

During trial, the Appellant sought to rely on an alibi that his vehicle had been lent to a third party, supported by two witnesses named in a late defence statement. One witness did not appear at trial, and the prosecution was permitted to read that witness's police statement to the jury as rebuttal evidence. The admission and use of this statement, which contradicted the alibi, became the principal ground of appeal against conviction.

Legal Issues Presented

1. Whether the learned judge erred in admitting a written statement made by a witness (Ali Nur Rahman) after the close of the defence case as rebuttal evidence to disprove the defence of alibi.
2. Whether the statement constituted inadmissible hearsay evidence and, if admissible, whether it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 (PACE).
3. Whether the factors set out in section 114(2) of the Criminal Justice Act 2003 were relevant to the court's discretion to admit the statement.
4. Whether the judge failed to direct the jury appropriately regarding the use and reliability of the statement.
5. Whether the sentence imposed was manifestly excessive or improperly reflected disparity with the co-accused's sentence.
6. Whether the Appellant was properly credited for days spent on a qualifying curfew in the calculation of the sentence.

Arguments of the Parties

Appellant's Arguments

• The statement of the witness was hearsay and wrongly admitted on the basis that it was not hearsay.
• The judge erred in failing to apply the checklist of relevant factors under section 114(1)(d) of the Criminal Justice Act 2003 when admitting the statement as hearsay.
• The judge wrongly held that those factors were irrelevant to the exercise of the exclusionary discretion under section 78 PACE because the jury was not asked to decide the truth of the statement.
• The judge failed to direct the jury properly given that the prosecution clearly relied on the statement as evidence of the matters stated within it.
• These errors rendered the conviction unsafe.
• Regarding sentence, the Appellant argued that there was an objectionable disparity between his 7-year sentence and the co-accused’s 4-year sentence.
• The Appellant sought proper credit for days spent on a qualifying curfew, which had not been formally declared in open court.

Prosecution's Arguments

• The statement was admitted as rebuttal evidence and not as hearsay; therefore, the factors in section 114(1)(d) were irrelevant.
• The prejudice to the Appellant arose from the defence’s own late and inconsistent presentation of the alibi evidence, not from the prosecution’s use of the statement.
• Even if the statement should not have been admitted, the overwhelming evidence of guilt and implausibility of the alibi meant any prejudice was outweighed.
• The disparity in sentencing was justified by differences in the roles and personal circumstances of the Appellant and co-accused.
• The sentence imposed on the Appellant was within the adjusted guideline range and appropriate for the seriousness of the offence.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court identified two mutually inconsistent bases for admitting the witness statement:

1. The statement was false and demonstrated that the Appellant had procured false evidence to support his alibi. This required the jury to infer dishonesty and was admissible as rebuttal evidence to undermine the defence.
2. The statement was true and admissible as hearsay under section 116 (witness unavailable) or section 114(1)(d) (interests of justice) of the Criminal Justice Act 2003.

The judge admitted the statement primarily on the first basis, and alternatively on the second basis. However, the court found that the second basis was flawed because it depended on the prosecution not relying on the truth of the statement, which was inconsistent with the prosecution’s closing speech where the statement was relied upon as truthful evidence. The judge’s direction to the jury included conventional hearsay directions that were inappropriate given the statement was admitted on the basis of falsity.

The court noted that the defence had no opportunity to cross-examine the witness whose statement was read to the jury, which was a relevant consideration for fairness but did not render the conviction unsafe.

On sentence, the court agreed with the single judge that the disparity argument was unarguable given the differing roles, personal circumstances, and conduct of the Appellant and co-accused. The 7-year sentence was within guideline range and appropriate for the serious, planned robbery involving violence and a knife threat.

The court granted leave to appeal limited to the issue of credit for days spent on a qualifying curfew, as the proper credit had not been formally declared in open court, potentially affecting the sentence calculation.

Holding and Implications

The court DISMISSED the appeal against conviction, holding that the witness statement was admissible rebuttal evidence properly before the jury and that any errors in the judge’s directions did not render the conviction unsafe. The overwhelming circumstantial evidence and implausibility of the defence supported the safety of the conviction.

The court refused leave to appeal against sentence except to allow a limited appeal concerning the proper credit for days spent on a qualifying curfew. The sentence of 7 years' imprisonment remains in place but will be amended to reflect credit for 174 days on curfew, subject to agreement on that figure.

No new legal precedent was established. The decision clarifies the application of hearsay and rebuttal evidence principles in the context of late alibi evidence and the exercise of judicial discretion under the Criminal Justice Act 2003 and PACE.