Ghaffar v R.

Factual and Procedural Background

On 14 February 2024, after a 24-day trial before Judge Bartle in the Crown Court at The City, the Applicant was convicted by a majority of 10 to 1 of conspiracy to commit fraud by false representation and sentenced to three years' imprisonment. The Applicant's appeal against sentence was unsuccessful. The Applicant then sought leave to appeal against conviction and to rely on fresh evidence (three witness statements from Witness Hussain, Witness Khan and Witness David) under Section 23 of the Criminal Appeal Act 1968 and CPR Part 39.3. A single judge referred the application to the full court. Oral evidence was heard from Witness Hussain, Witness Khan and Attorney Mahfooz; Witness David did not attend. The underlying facts arise from a prior case (neutral citation [2024] EWCA Crim 1277) concerning costs claims submitted to the National Taxing Team (referred to in this summary as The Taxing Body) connected to work on the "Miah case". The prosecution alleged the Applicant, a barrister, received substantial payments (including via an account in the name of Business K and direct payments) as part of a conspiracy to obtain payments for work not done. The Applicant's defence was that some payments were legitimately earned and that the Business K account belonged to Witness Hussain.

Legal Issues Presented

1. Whether the Court should receive fresh evidence under Section 23 of the Criminal Appeal Act 1968.
2. Whether the proffered fresh evidence is capable of belief and may afford any ground for allowing the appeal (i.e. whether it could have reasonably affected the jury's decision such that the conviction would be rendered unsafe).
3. Whether the proffered evidence would have been admissible at trial on an issue that is the subject of the appeal.
4. Whether there is a reasonable explanation for the failure to adduce the evidence at trial.

Arguments of the Parties

Applicant's Arguments

• The fresh witness statements and oral evidence (Witness Hussain, Witness Khan, Witness David) showed Business K was a genuine litigation-support business run by Witness Hussain and that payments into the Business K account were for services to that business, not payments to the Applicant.
• Evidence as to the opening and operation of the Business K account would undermine the prosecution's attack on the Applicant's credibility and could have affected the jury's verdict.
• There was an explanation for why the evidence had not been adduced at earlier trials (various contact and availability issues).

Prosecution's Arguments

• The proffered evidence lacked credibility, was vague and unsupported by contemporaneous documentation, and would not have affected the jury's verdict given the broader evidence of conspiracy and convictions of co-defendants.
• There was no reasonable explanation for the failure to obtain and adduce the evidence at earlier trials; defence efforts to locate witnesses were perfunctory.
• The payments and bank records were before the jury at trial; the fresh evidence would not materially change the jury's assessment.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied Section 23(2) factors: whether the evidence appeared capable of belief; whether it might afford a ground for allowing the appeal (i.e. could have affected the jury's verdict); whether it would have been admissible at trial on the issue; and whether there was a reasonable explanation for the failure to adduce it at trial. Relying on Sales, the court categorised the written proffered evidence as "possibly capable of belief" and heard oral evidence from Witness Hussain, Witness Khan and Attorney Mahfooz to test credibility; Witness David did not attend and her evidence was not heard.

The court conducted a detailed credibility assessment:

• Witness Hussain: his account that Business K was a genuine litigation-support business and that the Business K bank account was effectively his was undermined by the absence of any contemporaneous business records, tax returns, invoices (except one late invoice), employment records, correspondence or independent corroboration; inconsistencies about how the bank account was opened; implausible explanations for operating a business through another's named account; and perfunctory steps by defence to obtain and preserve his evidence before trial. The court concluded his evidence was not capable of belief and would not have afforded a ground of appeal.
• Witness Khan: regarded as credible but gave little or no evidence supporting the Business K explanation or that his testimony would have affected the jury. His evidence that the Applicant worked on the relevant case was uncontroversial and would not have changed the central issue of whether the Applicant was a knowing and dishonest participant in the conspiracy.
• Witness David: provided an unsigned statement asserting she had worked for Business K, but she did not attend to give evidence. The court accepted her statement had limited supportive value but, absent oral testimony and with no satisfactory explanation for failure to call her at trial, it attached limited weight to it.
• Attorney Mahfooz: the court found defence efforts to obtain and preserve witness evidence were perfunctory (e.g. lack of signed statements, inadequate steps to maintain contact or to inquire further) and there was no satisfactory reason for not adducing the evidence at earlier trials.

The court concluded that even if parts of the fresh evidence were accepted, it would not have reasonably affected the jury's verdict. The broader evidence at trial (including convictions of co-defendants and NTT records) established the conspiracy and the issue remained whether the Applicant was a knowing participant; the proffered evidence was either incredible, of limited weight, or too late and insufficiently supported to change that assessment.

Holding and Implications

Leave to rely on the fresh evidence and leave to appeal were refused.

Implications: The refusal means the Application's conviction is left undisturbed and the fresh evidence was not received. The decision turned on credibility, lack of documentary corroboration and the absence of a reasonable explanation for the failure to adduce the evidence at trial; the court did not accept the proffered evidence as rendering the conviction unsafe. No new legal precedent was established; the decision applied existing statutory criteria and authorities to the facts of this application.