Saleem, R. v

On 8 May 2006, at the Reading Crown Court before His Honour Judge Playford QC and a jury, the appellant Saleem and three others were convicted of causing grievous bodily harm with intent contrary to s.18 of the Offences Against the Person Act 1861. The appellant was subsequently sentenced to two years detention in a young offender institution and the others to substantially longer terms of custody. The appellant was given leave to appeal by the single judge on grounds which related to the operation of the bad character provisions of the Criminal Justice Act 2003 (CJA 2003) and which related solely to him. Two of the other defendants, Pazir and Akhtar, applied for leave to appeal against their convictions on different grounds. Those applications were refused by the single judge; on a renewed application to this court, leave was also refused by us for reasons which we have given separately, as they have no relevance to the issues in this appeal.

For the purposes of this appeal, the background and the evidence can be briefly summarised.

In the early hours of 24 February 2005 Zico Gilkes, a 19 year old, was subjected to a horrifying and brutal attack in a park in Maidenhead. He was cut about the face, and head with a Stanley knife and sustained several serious blunt injuries, probably caused through kicking; he became unconscious during the course of the attack. His clothing was then removed from the lower part of his body and he was left in the park by those who attacked him. He made his way to a house and asked for help before collapsing. 26 lacerations were found to his face and back. He required 46 stitches. He will be scarred for life.

It was the prosecution’s case that this young man had been lured to the park in Maidenhead by one of the other defendants, Blake, who had planned the attack and inflicted the injuries with a knife. The others, Akhtar, Pazir and the appellant (whose 17^th birthday was on the day of the attack) were parties to a joint enterprise led by Blake to inflict really serious bodily injuries to the victim with intent. Akhtar and Pazir had joined in the attack. The appellant had gone along to photograph what had happened so that it could be shown to others.

Zico Gilkes’ evidence was that he had gone with the four others to the park to smoke cannabis. All had smoked, except the appellant. Suddenly the appellant pointed his telephone at him as if he was making a video and Blake shot at him with an air pistol. He was then subjected to the attack which we have described. Zico Gilkes made a number of statements which had varied in the account given in relation to the participation of Pazir and Akhtar in the attack. The appellant had been specifically identified in the statements and at a subsequent identification parade. Zico Gilkes also stated he had been shown a video clip of the attack on someone else’s phone and told that this had been taken by the appellant; the police were unable to find anyone who admitted having or seeing any such clip or other photographs of the attack.

It was the appellant’s initial account to the police on his arrest on 9 March 2005 that he had nothing to do with the attack; he did not answer any further questions when interviewed. He had said he was at his computer at the time and then had gone to bed. After his identification by Zico Gilkes as someone present at the scene, his defence case statement was amended to admit that he was in the park at the time of the attack, but there was a denial of prior knowledge of the attack or being involved in the attack; it recorded his belief that the attack had occurred because of an outstanding drug debt. The appellant did not give any explanation as to why he was in the park in the vicinity of the attack at that time of night.

One of the other defendants, Pazir, gave evidence at the trial that he had seen the appellant with his telephone out and was playing with it; that the appellant had had his telephone in his hand as they walked to the park; that when they were in the park he thought that the appellant might have been texting someone because the appellant did not have his telephone to his ear but had his telephone in his extended hand.

The appellant did not give evidence, but called two witnesses to whom we refer at paragraph 15 below. Evidence of the appellant’s good character was also given.

The nature of the evidence

The evidence that forms the basis of this appeal was material which the police had found on searching the appellant’s bedroom. Their search revealed three mobile telephones (two of which could take video pictures) and a computer. On analysis of the computer the police found:

There was no dispute about the admissibility of the MSN message, but the admissibility of the violent images and the rap lyrics was disputed by the appellant. The judge ruled that they were admissible. The issue on the appeal was whether the judge was correct in that decision and, if so, whether his summing up had properly dealt with the use the jury could make of that evidence. The circumstances in which the evidence was admitted can be described in full, though the description is brief.

The judge’s decision to admit evidence of the violent images and the rap lyrics

No formal request was made by the prosecution to admit the violent images or the rap lyrics under the bad character provisions of the CJA 2003. However, the fact that the prosecution wished to rely on this evidence was set out in their opening note for the trial.

Counsel for the appellant served a skeleton argument shortly before the trial began in which it was contended that the evidence of the violent images and the evidence of the rap lyrics were evidence of bad character within the bad character provisions of the 2003 Act. It was submitted that the evidence should not be admitted because the prosecution had not followed the proper procedure for the admission of the evidence and the evidence was not in any event, on a number of different bases, admissible.

The issues raised by the appellant’s skeleton were the subject of argument after the jury had been sworn in. During the course of that argument, but without recording it in the formal ruling to which we shall refer, the judge made it clear that he rejected the submission that the evidence could not be admitted because the proper notice had not been given. He did so on the basis that the appellant knew of the intention to rely on the violent images and the rap lyrics as evidence to support the prosecution case because it had been referred to in the opening note. There was therefore no prejudice by reason of the failure to serve notice in accordance with the rules.

At the conclusion of the submission the judge gave a short ruling on the other arguments made in relation to the admissibility of the evidence in the following terms:

“I do not see any unfairness. I am against you [the appellant]. It is clear, it is relevant. If nothing else, it is relevant to rebutting the defence of innocent presence.”

The evidence was admitted on this basis which the appellant contended before us was wrong. The trial proceeded. The two witnesses called by the appellant were called in relation to this evidence. One gave evidence to explain the message referred to at paragraph iii) above; that explanation was that the appellant wanted to be off line on his birthday. The second witness was his solicitor who gave evidence that the rap lyrics were readily available on the internet.

The directions to the jury in the summing up

Prior to the summing up there was some discussion in relation to matters of law which the judge would cover in his summing up, but the discussion did not include the direction the judge should give in relation to the evidence of the violent images and the rap lyrics.

When the judge came to sum up the case, he first set out the law and then reviewed the case against each of the defendants and the evidence that specifically related to each of them. In relation to the appellant, he gave a full good character direction and reminded the jury of the fact that he had no previous convictions and there was nothing to suggest that he had in any way been involved in dealing in drugs. He set out the account given by the appellant to which we have referred at paragraph 6. He directed the jury in the following terms:

“The prosecution’s case is that Zafran Saleem went along in order to photograph the assault that all, with the exception of Zico Gilkes, knew was going to take place. That case, they say, is based not only on oral testimony, principally that of Zico Gilkes, but also on what was found on Mr Saleem’s computer and camera.

It is of course right to point out that nothing has been found that directly links any camera or computer found at Mr Saleem’s home with this incident. By admission 6.2 you can see that it is agreed that there is no evidence of any video clip or still image of this incident having been on, sent from or sent to Mr Saleem’s computer.

But it is suggested that, first the end case report [the violent images] show a possible interest, an unhealthy interest (as Mr Kent for the prosecution put it) in violent assaults and a possible interest in photographing such incidents. …..”

After referring to the evidence that was said to connect the appellant’s camera with the images, the judge continued:

“It is a quantum leap, says Mr Khamisa [who appeared for the appellant], from this to guilt, but it is not suggested that that evidence any more than the rap lyrics is determinative, it is all part of the evidence and if and to the extent (and I make it absolutely clear) if and to the extent that you do not find it of assistance, then ignore it.

Equally, with the rap lyrics found on his computer, if they don’t assist you, take no notice of them. They appear to have been downloaded from an internet website and then modified or amended by the user of the computer, presumably Mr Saleem.”

The judge then referred to the evidence in connection with the other rap material on the appellant’s computer, the creation of the file and the time the lyrics were last accessed. He then referred to the fact that there was no animosity between the appellant and Zico Gilkes and said:

“That is no doubt correct, but it still leaves unanswered the question why Mr Saleem should have attached himself to anybody else, be it a group or others, going to the park at that time, if that is what he did.”

He set out the evidence relating to the MSN message to which we have referred at paragraph 9 iii) and the evidence of the two witnesses to whom we have referred at paragraph 15.

The judge then reviewed the evidence of the attack, the defence of each of the defendants and the evidence of Pazir to which we have referred.

It was the appellant’s contention that the directions in relation to the rap lyrics and the violent images were an inadequate attempt to direct the jury as to the relevance of the evidence and how they should treat it.

We have briefly referred to the submissions made by the appellant in relation to the admission of the evidence and to the criticism of the summing up. The prosecution contended that the judge was right to admit the evidence and he properly directed the jury.

It is, we think, useful to consider the issues under 6 headings. The first 5 of these follow the scheme of the statutory provisions in the CJA 2003 which have to be considered and which if applicable govern the admissibility of the evidence; the sixth heading relates to the directions to be given to the jury which is closely interrelated to the basis on which the evidence was admitted and used.

We stress the importance of following the statutory scheme, as it was submitted to us by the prosecution in the skeleton argument served for the appeal:

“Practitioners have adopted different approaches to the Bad Character provisions.

(i)

The first is to see how the old law fits in with the new law (for example Background evidence is governed by Gateway C; Similar Fact and propensity is governed by Gateway D; Wearing a regimental blazer by Gateway F and so on). The danger of adopting this approach is that the law will not develop in any meaningful way as too much reliance will be placed on the common law approach that Parliament has specifically abolished (See Section 99 CJA 2003).

(ii)

The second approach is to ‘wipe the slate clean’ and to consider whether a particular piece of evidence will assist the jury to resolve ‘an important matter in issue between the defendant and the prosecution’”.

This trial took place one year after the coming into force of these provisions of the CJA 2003; it was nonetheless submitted to us that the law was then in its “infancy”. It appears therefore that the effect of the sea change in the law effected by the CJA 2003 had not been fully appreciated by those involved in the trial. The statutory code was in force and the old law consigned to history. Consequently the issues which arose under the statutory code were not identified or addressed, as the decisions of this court have made clear they should have been.

We first consider the issue of relevance. The judge had concluded in the very brief ruling to which we have referred at paragraph 14 that the rap lyrics and the violent images were relevant to rebutting the case made by Saleem that he was present innocently at the scene.

The appellant submitted that the judge was wrong on this issue:

The prosecution submitted that the judge was correct in his view of relevance:

Our view is that the judge was correct. The evidence was relevant to rebutting the case of innocent presence put forward by the appellant; we accept the importance of the fact that part of the rap lyric relied on was composed 3 months before the time the offence was committed, but this was a factor that went to weight rather than relevance in the light of the fact that they were last accessed on 13 February 2005. The issue as to its relevance to propensity is more conveniently considered at paragraphs 34 and following.

S. 98 of the CJA 2003 provides:

““Bad character”

References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which –

a)

has to do with the alleged facts of the offence with which the defendant is charged, or

b)

is evidence of misconduct in connection with the investigation or prosecution of that offence.”

It was not disputed that the violent images and the rap lyrics were evidence of misconduct or of a disposition towards misconduct; misconduct is defined in s. 112 (1) as “the commission of an offence or other reprehensible behaviour”. Plainly writing a lyric that was, on the prosecution case, the planning of a violent attack and an interest in images of violent attacks, were at least evidence of reprehensible behaviour. We shall assume that the judge took the same view.

It was contended by the prosecution before us that:

The operation of this exception has been considered by this court in a number of cases including Machado [2006] EWCA Crim 1804, Edwards and Rowlands at paragraph 23, Watson [2006] EWCA Crim 2308, McIntosh [2006] EWCA Crim 193 and Tirnaveanu [2007] EWCA Crim 1239. In his useful monograph Evidence of Bad Character, Professor John Spencer QC comments of this provision at paragraph 2.23:

“It presumably also covers other criminal acts which were committed by way of preparation: for example, in a murder case, the theft or illegal purchase of the weapon. At one further remove, it would presumably also cover an earlier criminal act which was the reason why the later crime took place: for example, where a defendant beat his wife, a neighbour reported him to the police, and the defendant later assaulted the neighbour out of revenge.”

As Professor Spencer rightly points out, it may not make much difference, as the important protection to the appellant is the exercise of the discretion to exclude the evidence under s. 78(1) of the Police and Criminal Evidence Act 1984.

We do not, however, consider that the evidence in relation to the rap lyrics is admissible as “to do with the facts of the offence”. In our view, there is insufficient connection in time with the facts of the offence; these were composed three months earlier, even though accessed about 10 days before the attack. Nor were they evidence of a motive or reason for committing the offence. In short, applying the ordinary meaning of the words “to do”, they were not sufficiently connected with the facts of the offence to be “to do” with them.

Was the evidence admissible under one of the gateways?

It is clear that the judge considered the evidence was relevant to rebutting the explanation of innocent presence; he must therefore have considered it was admissible as relevant to an important issue in the case under the gateway in s. 101(1)(d).

It was the submission of the appellant that if the evidence was relevant to an important issue, its relevance was not to the issue of rebutting innocent presence but to the issue of the appellant’s propensity to commit the offence. S. 103 provides:

“(1)

For the purposes of s.101(1)(d) the matters in issue between the defendant and the prosecution include:

(a)

the question whether the defendant has a propensity to commit offences of the kind with which he is charged ..

(2)

Where subsection (1)(a) applies, a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of:

(a)

an offence of the same description as the one with which he is charged..

It was contended that, as the prosecution case was that the appellant had joined in to act as the photographer, the evidence of the violent images and the rap lyrics was being adduced to show that he had a propensity to commit an offence of the kind charged. As this was the purpose of the evidence, admitting it as relevant to rebutting innocent presence was a “back door” way of admitting evidence of propensity and avoiding the directions to the jury that would be necessary if the evidence was admitted as evidence of propensity.

The prosecution submitted that the judge had been right; the evidence was not evidence of propensity.

We agree with the view taken by the judge. Neither the violent images nor the rap lyrics were evidence of propensity to commit the offence with which the appellant was charged. This evidence showed an interest in violent images and in something violent happening on his birthday, but not a propensity to commit violence. As the appellant accepted presence in the vicinity, they were relevant to showing that presence was not innocent, given the interests shown by the violent images and the rap lyrics.

The giving of notice

No notice as required under s.113 was given. The judge considered that it did not matter that notice had not been given, as the prosecution’s opening note made clear that the prosecution intended to rely on the evidence.

The judge was right. There was no prejudice. Nonetheless, if notice had been given, it should have clearly identified the grounds on which the evidence was to be admitted and should therefore have clarified the way in which the application should have proceeded before the judge. Much time and cost would have been saved.

Was the discretion correctly exercised?

As the violent images and the rap lyrics were admissible under s.101(1)(d), the discretion to admit the evidence was to be exercised under s.101(3) and the court was not to admit it if it appeared “to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

The judge merely stated that he considered there was no unfairness.

It was contended on behalf of the appellant that this was not a reasoned view as required by s. 110(1); the judge had not addressed his mind to the issue. If the judge had conducted a balancing exercise in accordance with the decisions of this court in Weir [2005] EWCA Crim 2866 ([2006] 1 Cr.App.R.19) at paragraphs 38 and 46 and Edwards and Rowlands (at paragraph 82) and if the judge had set out proper reasons for his decision, he would have concluded that the evidence should not have been admitted:

The violent images and the rap lyrics were, we accept, capable of being viewed emotively. However, it is part of the duty of a jury to put aside such an approach and to evaluate the evidence in the context of the case as a whole; in our experience this is a duty that they perform conscientiously. This was important evidence that went to the explanation given by the appellant for his presence in the park. We consider that the jury were quite capable of considering it in the proper context of this case and putting aside its emotive connotations. Accordingly, the evidence would not, in our judgment, have had an adverse effect on the fairness of the proceedings.

The direction to the jury

In R v Hanson [2005] EWCA Crim 824 ([2005] 2 Cr. App. R. 21) and in subsequent decisions, particularly R v Edwards; R v Fysh at paragraphs 3 and 77, Highton [2005] EWCA Crim 1985 ([2006] 1 Cr App R 7) at paragraphs 11 and 38-43, R v Edwards and Rowlands at paragraphs 1(ii) and 1(iv) and MM [2006] EWCA Crim 2317 at paragraph 14, this court made clear it was important to consider, when evidence was admitted under the bad character provisions, what directions need to be given to the jury. More recently in Campbell [2007] EWCA Crim 1472, the Lord Chief Justice, in giving the judgment of the court, reviewed the way in which the giving of directions to the jury should be approached. He referred to the way in which directions in relation to bad character prior to the CJA 2003, which suggested ways of assisting the jury to draw logical conclusions from the evidence, had been treated as mandatory requirements of law. He described the way in which this had come about:

“23.

... The Court of Appeal criticises an aspect of a judge's summing up and suggests an alternative direction that would have been appropriate. The Judicial Studies Board then incorporates this suggestion in a specimen direction. Thereafter, if the specimen direction is not given, this is treated as a defect in the summing up that warrants permission to appeal and has, on occasion, been treated in this court as rendering the conviction unsafe without considering whether the jury would have reached the same conclusion by the application of common sense to the evidence, whether or not the specimen direction was given. Failure to give a direction that is no more than assistance in applying common sense to the evidence should not automatically be treated as a ground of appeal, let alone as a reason to allow an appeal.

24.

The change in the law relating to character evidence introduced by the 2003 Act should be the occasion for simplifying the directions to juries in relation to such evidence. Decisions in this field before the relevant provisions of the 2003 Act came into force are unhelpful and should not be cited. Where evidence of bad character is introduced the jury should be given assistance as to its relevance that is tailored to the facts of the individual case. Relevance can normally be deduced by the application of common sense. The summing up that assists the jury with the relevance of bad character evidence will accord with common sense and assist them to avoid prejudice that is at odds with this.”

The Lord Chief Justice then went on to say:

“35.

If the jury is told in simple language and with reference, where appropriate, to the particular facts of the case, why the bad character evidence may be relevant, this will necessarily encompass the gateway by which the evidence was admitted.

36.

In the rare case where evidence of bad character has been admitted because the question of whether the defendant has a propensity to be untruthful is an important matter in issue between the defendant and the prosecution, the direction should always explain the relevance of the evidence with reference to the particular facts which make that matter important.

37.

Where evidence of a criminal or otherwise blameworthy act on the part of the defendant is adduced because it bears on a particular issue of fact and this evidence has no bearing on the defendant's propensity to commit the offence charged, this should be made plain to the jury.

…

43.

It is, of course, clearly highly desirable that the jury should be warned against attaching too much weight to bad character evidence let alone concluding that the defendant is guilty simply because of his bad character.”

It was contended by the appellant that the judge:

In our view, several of the points made by Mr Khamisa QC on behalf of the appellant have great force. The judge should have given the jury much more help than he did in relation to the violent images and the rap lyrics. Instead of telling the jury it was all part of the evidence, the jury should have been told simply that the evidence had been placed before them by the prosecution to counter the appellant’s explanation that he had been there innocently and had not participated in the attack. It was relevant for that purpose and not to any other purpose, including propensity to commit the offence. The jury should not attach too much weight to it and certainly not conclude that he was guilty simply because of this evidence.

Did the judge’s failure to direct the jury in this way make the conviction unsafe?

The real issue for the jury to decide in relation to the appellant was the reason for his presence in the park in the vicinity of the attack at that time of night. It seems to us that a jury considering the evidence of the rap lyrics and the violent images with logic and common sense could only have concluded that the evidence was relevant to that issue, as it went to disproving an innocent explanation. As has been made clear in Campbell at paragraph 24, the essence of the directions in a case such as this is the application of logic and common sense to the evidence.

In the present case, although the judge should have given the jury much more help than he did, we do not consider that his failure to do so rendered the conviction unsafe, as the jury would have appreciated the relevance of the evidence.

Moreover, this was a case where there was compelling evidence against the appellant which we have summarised. The evidence complained of was rightly admitted. The judge failed to help the jury as he should have done, but this did not affect the safety of the conviction.

We therefore conclude that the ground on which leave to appeal was given fails and the appeal against conviction is dismissed.

The appellant also applied for leave to appeal on the grounds that the judge should not have admitted the evidence of the victim that he had heard from others that the appellant had videoed the attack. It was submitted that this should have been excluded as it was multiple hearsay under s.121 and the judge should have refused to admit or if it had been admitted given a warning to disregard it completely

The single judge concluded that the point was not arguable. We agree.