Nawaz, R. v

Factual and Procedural Background

The Applicant, aged 55 at the time, was convicted in absentia on 1 December 2023 at the Crown Court at Bradford of one count of rape contrary to section 1 of the Sexual Offences Act 2003. He was sentenced in absentia on 8 December 2023 to 12 years' imprisonment. A co-accused was also convicted and sentenced similarly. The Applicant failed to surrender to bail and has remained at large since the trial. He was represented at trial by solicitors and counsel, who also lodged his application for leave to appeal. This opinion concerns a renewed application for leave to appeal following a refusal by a single judge.

The case involved allegations that the Applicant had taken the complainant, born in March 1988, to obtain drugs when she was 15 years old, and subsequently committed rape. The Applicant denied the allegations, claiming no sexual contact with the complainant. The prosecution relied on evidence from the complainant and her brother. The Applicant did not give evidence, being absent from trial. The jury was tasked with determining whether vaginal sexual intercourse occurred, with consent conceded if intercourse was proven.

The trial judge provided detailed jury directions addressing inconsistencies in the complainant's accounts, the effect of delay in complaint, and the potential fallibility of memory, rejecting a defence request for a specific direction on the malleability of human memory as set out in a civil practice direction. The single judge previously refused leave to appeal, finding the trial judge's directions to be fair and balanced.

Legal Issues Presented

1. Whether the Applicant's solicitors had authority to renew the application for leave to appeal on his behalf despite his absence and failure to provide further instructions or funding.
2. Whether the trial judge's directions to the jury regarding the assessment of evidence, particularly concerning the complainant's memory and inconsistencies, were fair and sufficient.
3. Whether the failure to direct the jury in terms of the civil practice direction on the fallibility of human memory rendered the summing up unfair and the conviction unsafe.

Arguments of the Parties

Appellant's Arguments

• The Applicant argued that the trial judge should have given a specific direction to the jury on the fallibility of human memory consistent with paragraph 1.3 of the Civil Procedure Rules Practice Direction 57AC, emphasizing that memory is fluid, malleable, and vulnerable to alteration.
• The Applicant contended that the trial judge's refusal to give this direction, despite amendments to other directions, resulted in an unfair and unbalanced summing up, rendering the conviction unsafe.
• The Applicant’s representatives highlighted paragraph 24 of the written directions as insufficient to properly reflect the guidance on memory fallibility.

Respondent's Arguments

• The single judge and the court emphasized that the trial judge's directions, when read as a whole, were exemplary and balanced, adequately addressing issues of memory, delay, and inconsistencies.
• It was argued that the civil practice direction cited by the Applicant, which applies to witness statements in civil litigation, is not applicable in criminal cases, especially those involving non-recent sexual offences.
• The trial judge’s discretion to refuse the requested direction was supported on the basis that juries are capable of understanding the fallibility of memory without a specific direction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the issue of solicitor authority to renew the appeal application. Relying on the principles in R -v- Okedare, it found that the Applicant’s solicitors had the necessary authority, as evidenced by the Applicant's awareness of the refusal of leave and the risks involved. The absence of further instructions or funding did not negate this authority.

Turning to the substantive appeal, the court carefully reviewed the trial judge’s directions to the jury. It found that the directions, taken as a whole, were comprehensive and balanced, adequately informing the jury about how to assess the complainant’s evidence, including inconsistencies, delay, and the possibility of misremembering. The court rejected the argument that a specific direction on the fallibility of memory as set out in civil practice directions was required in criminal proceedings, especially given the distinct evidential context of non-recent sexual offences.

The court reasoned that the jury was well-equipped to evaluate the complainant’s testimony and that the trial judge’s refusal to give the requested direction did not render the summing up unfair or unbalanced. The court emphasized that the conviction depended on the jury’s surety of the complainant’s truthfulness, which was supported by the evidence and directions.

Holding and Implications

The court REFUSED the renewed application for leave to appeal against conviction.

The direct effect of this decision is that the Applicant’s conviction and sentence remain undisturbed. No new precedent was established. The court confirmed the appropriateness of the trial judge’s directions and the limits of applying civil evidential principles in criminal trials for non-recent sexual offences. The decision underscores the importance of considering the totality of jury directions rather than isolated passages when assessing fairness.