Suleman v R.

This is an appeal against conviction brought with the leave of the single judge. At Leicester Crown Court on 22 January 2010 the appellant Omar Mohammed Suleman faced an indictment containing 16 counts, in which he was charged with two offences of public nuisance comprising the making of hoax calls to the emergency services and fourteen offences of arson, some of which were charged as simple arson, others as arson being reckless as to whether life was endangered and the remainder as arson with intent to endanger life. The appellant pleaded not guilty to the indictment. The prosecution reconsidered its position and a decision was made to offer no evidence upon the counts charging the appellant with arson with intent to endanger life.

Thus, on 6 September 2010 the trial proceeded before HHJ Hammond upon an indictment containing twelve counts as follows:

The judge commenced his summing up on Thursday, 7 October and the jury retired to consider their verdicts at 12.06 pm on Friday, 8 October 2010. At 2.08 pm on Wednesday, 13 October the jury returned with unanimous verdicts of guilty upon counts 1, 2, 3, 4, 5 and 12. They returned a verdict of not guilty in respect of count 6. The judge then gave the majority verdict direction. At 4.25 pm on the same day the jury returned verdicts of guilty upon counts 7, 8 and 9 by a majority of 11 to 1. Finally, on Thursday, 10 October 2010 the jury returned verdicts of guilty in respect of counts 10 and 11 by a majority of 10 to 2.

The appellant has leave from Sweeney J to argue grounds of appeal upon two aspects of the appellant’s trial. The first concerns the judge’s handling of the admissibility of what may loosely be called “similar fact” evidence under section 101(1)(c) and (d) CJA 2003, and his directions to the jury as to the manner in which that evidence could be utilised during the jury’s deliberations. Secondly, the appellant alleges that the prosecution improperly declined to make disclosure of material which the defence should have been free to utilise before the jury resulting, it is said, in an unfair trial.

The appellant seeks to renew two further grounds of appeal. It is asserted that the judge omitted from his summing up any directions upon what is called “the burnt carpet incident”. Finally, it is argued that the judge failed to give an adequate direction upon the issue of voice recognition.

In order to place the grounds of appeal in their proper factual context it is necessary to describe in some detail the background and the nature of the evidence upon which the prosecution relied at trial. The appellant himself chose not to give evidence.

The appellant is the eldest son (born 20 July 1981) of Mohammed Ismael and Ayesha Suleman. He has four siblings, Fatema, Maryam, Hussain and Khadya. Mohammed’s younger brother, and the appellant’s uncle, Hussain Ismael Suleman, is married to Shenaz. They have four children, Zainab, Mohammed, Sophia and Zaheera. The mother of Mohammed and Hussain Ismael, and the appellant’s grandmother, is Amina. The Suleman family migrated many years ago from the Gujarat in India to Malawi. From there they moved to the UK and settled in Leicester. They are a hard working and devout Muslim family. The cousins are close to one another and to their aunts and uncles. At the relevant times the appellant’s family lived at 45 The Fairway, Oadby in Leicester. The appellant lived with his parents because his marriage had broken down. His uncle Hussain’s family lived at 10 Stoughton Drive (described as ‘Street’ in the indictment) South, in Leicester. The appellant’s father, Mohammed, and the appellant’s uncle, Hussain, were in business together trading as Vista UK. The appellant worked in the business.

In 2007 the brothers’ business traded from a warehouse and office premises at St Matthew’s Way, Leicester. Between 8 January and 3 February 2007 six fires were deliberately started in Vista UK’s premises. The first four fires were started in the ground floor warehouse area among stacked boxes of marshmallows. The fifth was started in the first floor office among piles of carpets, underlay, magazines and discarded paper. The sixth was started in an upper floor office among papers next to a window.

All the fires were started during daylight hours and on no occasion was an accelerant used. The appellant’s father, Mohammed, gave evidence that on five of the occasions the appellant was present when the fire was discovered; so also was Mohammed himself. On three occasions uncle Hussain was present. On three occasions a work colleague called Asif was present and on one occasion Hussain junior, the appellant’s younger brother, was present. The exception was the fifth fire which took place on Sunday, 21 January 2007. On that day, Mohammed told the jury, the appellant was at home with the rest of the family until some time in the afternoon when the appellant returned his son to his estranged wife. The appellant was interviewed under caution about these matters on 24 January 2007. He denied being responsible for the fires. As to his movements on Sunday, 21 January 2007, he said he was at home in The Fairway with his infant son until 4 pm. He visited an Asda store and returned home. At 4.30 pm he left to return his son to his wife outside Spinney Hill police station, and arrived home at about 5.05 pm. The presence of fire at the Vista UK building was first reported at 5.18 pm that day. No action was taken against any individual in respect of the 2007 fires.

As a result of events at the St Matthew’s Way premises the brothers moved their business to the Dunlop Building on Evington Valley Road, Leicester. At first, they occupied the first floor but after fire damage they moved to the ground floor. It was common ground that the Dunlop building was partly derelict and, as a result, suffered intrusion by vagrants and curious youngsters. On 22 January 2008 a scenes of crime officer, Mr Andrews, was called to the Dunlop Building. The remains of three fires were found. On the first floor, occupied by Vista, a fire had been started among boxes of garments. No accelerant had been used. A further seat of fire was found on the second floor in a disused chemical laboratory. Five or six seats of fire were found on the second floor in empty offices which it was thought could have been of older origin and might have been the work of casual intruders.

On 23 January, the next day, Mr Andrews was again called to the Dunlop Building. He found two seats of fire in a room which had been gutted and a third seat of fire on a trolley causing slight damage to another room. Neither of these fires on 23 January, nor those on 4, 6 and 8 February 2008, affected property belonging to Vista in the Dunlop Building, and, as will become clear, may have fallen outside the pattern of fire-raising on which the prosecution relied in support of its case against the appellant.

On 14 February 2008 the appellant’s uncle Hussain’s house at 10 Stoughton Drive South (which was temporarily unoccupied for renovation) was severely damaged by fire. The first call was made to the emergency services at 7.43 pm. There were two separate areas of ignition in the downstairs living room: one in armchairs stacked at the back of the room, and the other among paper and cloth items stacked next to a wall and a door. A third seat of fire was found close to the rear patio doors. In interview on 15 February 2008, the appellant told the police that he left his father and uncle at home at 7.20 or 7.25 pm to go to a restaurant in Evington to watch Eastenders with friends. Stoughton Drive South is a short distance away from 45 The Fairway and, while not on the shortest route to Evington it is a short detour away. There was no evidence of forced entry to the house, and no key to the premises was found in the appellant’s possession. As a result of this fire uncle Hussain and his family moved into 45 The Fairway with the appellant’s family.

The next relevant fire in time was lit at the Vista UK office in St Matthew’s Way on 9 January 2009. It was reported by a telephone call at 10.11 am by, the prosecution asserted, the appellant. This fire was charged in count 2 of the indictment. By January 2009 Vista was no longer using the office. The appellant’s father was the key holder and there was no sign of forced entry, or of entry by vagrants. The seat of the fire was amongst paper and cardboard in a small first floor office. The appellant was interviewed on 8 March 2009. He said he was at the Dunlop building when his father telephoned his younger brother to tell him about the fire.

Count 3 charged the appellant with arson on 4 February 2009 at 10 Stoughton Drive. The house was still in a fire damaged state after the arson on 14 February 2008. The family’s insurers had challenged both liability and the extent of the claim made under the policy. By the time of trial, however, it was accepted, at least by the prosecution that the owner, Hussain Suleman, was not implicated and Mr Suleman gave evidence for the prosecution. At the time of the second fire Hussain Suleman was in Dubai. His son, Mohammed, had a key and the house was visited regularly. This time, further damage was done to a rear upstairs bedroom. The evidence was that the appellant left the Dunlop Building where he was working some time after 8.45 am to visit a customer, Cofresh, in Lewisher Road. The fire was reported at 9.51 am. There was no sign of forced entry or the use of an accelerant. By a process of elimination of other causes, it was concluded that the fire was stated deliberately. There was much combustible material to be seen in the damaged room. The appellant said in interview that he had left the Dunlop Building at 9.00 am for a meeting at 9.15 am. He went directly to Cofresh; he said that he remained with his customer until 10.30 am.

On 16 February 2009 there was a fire at the Dunlop Building. This was charged as arson in count 4 of the indictment. For security reasons CCTV had been installed but at the time of the fire someone, the prosecution suggested, the fire-raiser, had turned it off. The fire was reported at 3.47 pm. Fire officers found that the fire had been started amongst boxes of sweets which were stored on the ground floor of the premises, a feature similar to that noted in respect of the first floor fires in St Matthew’s Way in 2007. When interviewed on 8 March 2009 the appellant said that he had taken his brother to hospital for treatment for a broken leg, had returned him to their home, and then driven to work at the Dunlop Building arriving at 2 pm. He was at the office with his father and three others. They were leaving at 3.30 pm when the fire was discovered.

On 25 February 2009 the focus of the fire raiser moved to the appellant’s own home at 45 The Fairway where the two families were then living. On 25 February 2009 Hussain Suleman, the appellant’s uncle, parked his Audi motor car in the driveway outside the house. The keys were left in the porch. Someone started a fire in the boot of the car. The appellant’s cousin Mohammed Ismael gave evidence that the fire was not at the time reported to the police. The family knew that if the fire was reported the appellant would immediately come under suspicion. When he was interviewed on 8 March the appellant accepted that he was at the house. He said he was in the shower when the alarm was raised.

A second fire lit in the Audi on 26 February 2009 was the subject of count 5. This time an emergency call was made at 12.23 pm. The car was left parked in the driveway while Hussain Suleman senior was at work in the Dunlop building. The appellant’s father gave evidence that he was with the appellant at the Dunlop building when the appellant left to collect his brother Hussain, who was still on crutches from his football injury, from the mosque and take him home. Hussain junior gave evidence that they arrived home at 12 noon. The appellant did not remain at home. The fire was discovered half an hour later. The car was effectively destroyed by the fire lit in the rear passenger compartment. When he was interviewed on 9 March the appellant said that he had returned his brother at 12 noon. He claimed that when he did so, the Audi was not parked outside the house. He claimed that he had returned immediately to the Dunlop building.

On 28 February 2009 the appellant’s own car, a Vauxhall Astra, suffered damage by fire, also started on the rear passenger seat, while parked outside the house at 45 The Fairway, the prosecution suggested by means of a burning tea light. The fire was discovered by the appellant’s younger brother, Hussain, at about 8.59 pm. The appellant’s father said the family was at home except for the appellant and his cousin Mohammed Ismael. Issa, as the family called him, said he had taken Hussain junior with him to give his wife a lift in his own car, returning at about 8.40 pm. They saw smoke coming from the Astra. The appellant appeared with a fire extinguisher, opened the rear door which was unlocked, and pointed out the damage. In interview on 8 March, the appellant said he was in the house at the time the fire was started. The car was, of course, the appellant’s own property.

On 1 March a fire was started in goods stored on a trolley beneath a balcony at the rear of 45 The Fairway. It was discovered during the evening when the appellant’s friends from Derby arrived to visit him. According to Hussain junior, he and the appellant were watching television together when the friends arrived and the fire was discovered. The appellant, in interview, denied setting the fire, but agreed it was discovered when his friends arrived at the house.

Count 6, in respect of which the appellant was found not guilty, concerned a fire discovered amongst rubbish in the garden of 45 The Fairway on 3 March 2009. It was not reported. According to Zaheera, the appellant’s youngest cousin, it was raining heavily that evening. She saw the fire at about 6.15 pm when she looked out of a bedroom window. The appellant was at home. Although Zaheera said she did not see the appellant wet from rain, her sister Sophia said that the appellant and his mother went outside to extinguish the fire. That day the police were carrying out surveillance at the front of the house. No suspicious movements or visitors were recorded. In interview the appellant admitted being at the house but denied setting the fire.

As to count 7, on 4 March 2009 a fire was started on the ground floor of 45 The Fairway. Most of the family were present in the house. The appellant, his father and uncle were moving items from the attic. Hussain junior said that at the time of the fire he was at the mosque. Sophia said it was the appellant, her father Hussain senior and her uncle Mohammed who were in the attic. The fire was started on some boxes in the middle room. She found the fire when she went downstairs from calling the men for a meal. The appellant’s aunt Shenaz was preparing the meal. The appellant said, when interviewed on 9 March, that he had last been in the room for prayers at 5.53 pm. He was then in the attic. The fire was discovered at about 7 pm.

On 5 March 2009 a fire was started in the garden shed, a detached concrete structure 20 feet from the rear of the house at The Fairway. This was count 8 in the indictment. The fire was discovered at about 5.45 pm. The appellant’s uncle Hussain said that the appellant and Hussain junior were having a cup of tea together in the garden before the fire was discovered by a visitor, Mr Rajid Patel who saw the fire when he arrived. Mr Patel used a hosepipe to extinguish it before being joined by family members. Mr Patel was a dealer in fire extinguishers. In his view no accelerant had been used. When interviewed on 9 March 2009, the defendant said he had been praying in the middle room on the ground floor when the fire was discovered.

Count 9 concerned a fire in the wet kitchen at the rear of the house started on 7 March 2009 and discovered at about 1.22 pm. That day there were four detective officers at The Fairway taking statements from family witnesses. DC Paddison and DC Freeman were taking a statement from Hussain junior in the present of his father, Mohammed, between 11.35 am and 12.52 pm. DC Allen with DC Gracey interviewed Sophia and Fatema Suleman until 1.17 pm. At 1.21 pm DC Gracey took a call on her mobile phone. There was then a commotion. She went to the ‘wet’ kitchen and found smoke in the room. The appellant’s mother was trying to open the back door. Eventually she succeeded and everyone was asked to leave. She and DC Freeman found a smouldering cardboard box beneath a unit to the left side of the wet kitchen. Hussain junior said that he was downstairs. He then went up to bedroom 5 with the appellant. While they were in the bedroom with their cousins, Mohammed and Sophia, Sophia said she could smell smoke. The appellant’s mother, Ayesha, was also upstairs. She was in bedroom 1 with her youngest daughter, Khadya, when she heard someone shout ‘Fire’. When she went downstairs she could smell smoke. A visitor, Mustak Yusuf, is a cousin. He was in the main kitchen with the appellant’s uncle Hussain. They were joined by Hussain junior and, after 5 – 10 minutes, the appellant. Hussain junior left. At about 1.15 pm the appellant left the kitchen. He returned and left again, saying that he had to cut his nails. Mustak Yusuf said Fatema arrived saying she could smell smoke. He went upstairs and found the appellant with Sophia and, perhaps, Hussain junior. He said he saw no-one enter the wet kitchen from the main kitchen while he was present. The only two doors giving access were from the main kitchen and the back door, the latter of which, DC Gracey observed, had been locked. When interviewed on 8 March the appellant said he had been in bedroom 5 for 20 minutes before the fire was discovered.

Count 10 related to a fire discovered in the main kitchen at The Fairway at 8.15 am on 13 March 2009. Present in the house when the fire alarm sounded were the appellant, his uncle Hussain, his cousins Sophia and Zaheera, his grandmother, Amina, and his sister Fatema. Other members of the family had already gone to work. Uncle Hussain said he was alerted by the fire alarm. He went to the kitchen and found the net curtains alight and the patio door open. He gave evidence that the appellant was asleep and could not have been responsible. Several family members had slept in the hall on 6 March through fear of further fires. Sophia said she was asleep in the hall when she heard the fire alarm. The appellant was in the hall with her. Zaheera was in the hall. She too said she was woken by the alarm and the appellant was with her. Amina said she was upstairs when she heard the alarm. Earlier, before 8.00 am, she had made tea in the kitchen and opened the patio door. Fatema said that members of the family woke at 6 am for prayers in the hall. She then returned to her bed before being woken by the alarm. When interviewed on 8 March, the appellant said he woke for prayers at 4.30 am. He went back to his mattress in the hall and fell asleep until woken by the fire alarm.

The last fire, the subject of count 11, was lit on 27 April 2009 shortly before 10.25 pm when it was reported. Sahena Suleman, is the appellant’s aunt. She lives with her daughter Feroza, and Feroza’s three young children, at 44 The Broadway, five minutes walk from 45 The Fairway. She saw smoke in her kitchen which was coming from the adjoining unlocked garage. The fire was started amongst a collection of cardboard boxes. The appellant, when interviewed on 16 September 2009, said he had not been to his aunt’s house since February.

It was the prosecution’s case that the jury could safely conclude that all the fires aimed at the Suleman family and their business were the work of one arsonist. It was submitted that the possibility of arson motivated by a false insurance claim had been investigated and excluded. In all probability the fire raiser had access to the keys of the business premises, 10 Stoughton Drive South, 45 The Fairway and the Audi car. No person with a motive to attack the family’s property had been identified. The progression of the fires into 45 The Fairway where both families were living suggested that the fire raiser must have been a member of the family. Surveillance had failed to identify suspicious movements. The prosecution submitted that the appellant was the only member of the family who had the opportunity to set all the fires. The jury had heard from all significant family witnesses whose honesty could be judged. They had not, however, heard from the appellant. It was noteworthy that on no occasion had the appellant himself claimed to have discovered a fire. The fires were lit without the use of accelerant which suggested the perpetrator had lit smouldering fires enabling him to leave the immediate area before discovery of the fire. By one means or another, as a member of the family, the prosecution asserted that the appellant would have had access to keys to buildings and motor cars.

The second strand of the prosecution case concerned the appellant’s disputed use of mobile telephones referred to during the trial as XUF/8, a Nokia 6030 handset, and IS/8, a Nokia 7210 handset, although as to the latter, 1S/8 was the exhibit reference for the box in which the handset was originally contained.

Between 27 October 2008 and 26 February 2009, nine hoax calls, the subject of count 1, were made to the police and fire emergency services. Nearly all of them made false reports of fires at the Dunlop Building and 10 Stoughton Drive South. One made a false report of men carrying firearms at the Dunlop Building and at the premises of Cofresh, a customer of Vista UK. All of these calls were made using handset XUF/8 although three different SIM cards were inserted to make them. There was abundant evidence that the habitual user of handset XUF/8 was the appellant.

Between 12 April and 15 April 2009, eight hoax calls, the subject of count 12, were made to the emergency services. Some falsely reported incidents of threats, violence or burglary; others reported fires and intended fires. As to the latter, on 14 April 2009 a caller who said he was ‘Johan’ claimed that his friend, Omar Suleman, was going to start a fire at 99 Romway Road. On 15 April 2009 an anonymous caller said that Omar was going to 45 The Fairway to make a fire inside the house. The handset used to make these calls was IS/8 using a single SIM card, 196.

On 7 March 2009, the same day as the fire in the wet kitchen at 45 The Fairway in the presence of the police officers taking statements, the appellant was arrested and a search of the house performed. In a wardrobe in bedroom 5, a room used by the appellant before his uncle Hussain’s family moved in, officers found the empty box 15/8 which had contained the Nokia 7210 mobile handset. The handset itself was never recovered. In bedroom 3, the room used by the appellant, his younger brother, Hussain, and his cousin, Mohammed, after his uncle’s family moved in, was found the Nokia 6030 mobile handset XUF/8. When interviewed on 7 March the appellant told the police that he had one phone, a Nokia 6030. He was the only person to use it although his uncle would sometimes ask to do so. When the appellant was re-arrested in September 2009 he denied all knowledge of XUF/8 found in his bedroom. Found in the memory of XUF/8 were stored numbers which could, sensibly, only have related to use by the appellant. At a time when the appellant was, during July 2008, in Dubai, he was using XUF/8 to call numbers in Dubai and the UK.

Following the seizure of XUF/8 on 7 March 2009 it was no longer available for the appellant’s use. From 26 March 2009, it was the prosecution case, the appellant was using IS/8 with both his regular 068 SIM card and, in addition, the “dirty” 196 SIM card. The 196 SIM card was used not only to make the hoax calls in April 2009 but also nuisance calls to the police in Leicester on 6 and 7 April.

The hoax calls the subject of counts 1 and 12 were recorded by the emergency services. The recordings were submitted to the expert witness Professor French for comparison. Professor French is an expert in scientific analysis and comparisons of voices. He concluded in relation to the count 1 calls that the voice of the caller on each occasion was comparable with the appellant’s voice and there was no feature detected which was different from the appellant’s voice. Professor French offered a scale of assessment of the distinctiveness of the disputed voices comprising (1) not distinctive (2) moderately distinctive (3) distinctive (4) highly distinctive and (5) exceptionally distinctive. Professor French concluded that the count 1 voices were “(3) distinctive”. In his opinion in some of the recordings the speaker was clearly but inconsistently attempting to disguise his voice.

Professor French concluded that the count 1 and count 12 voices were consistent with each other although the attempts at disguise in the count 12 recordings were even more obvious and frequent. He concluded that the count 12 voices were also consistent with the appellant’s voice and in the scale they were “(3) distinctive”. Mr Henry, counsel for the appellant, had his own voice recognition expert present at trial. He called no evidence to contradict Professor French.

The prosecution thus relied upon the development of a pattern both in the setting of fires, during which the culprit took an increasingly reckless risk of discovery, and in the making of hoax and nuisance calls, during which in the latter stages he began to make explicit accusations against the appellant. It was overwhelmingly probable that the hoax caller was also the fire raiser. In this connection, Mr Blackburn, for the prosecution, pointed out that the call made to the emergency services at 10.11 am on 9 January 2009 (in respect of the count 2 fire) was made using the XUF/8 hand set. While at first treated as a hoax call, the call must have been made at a time when a fire had in fact been or was about to be set. When the fire service arrived at 10.19 am only wispy smoke was visible at close quarters emanating from Vista’s premises in St Matthew’s Way. It followed that the caller knew at 10.11 am, while the world in general did not, that a fire had been or was about to be set. If the jury was sure that the call was made by the appellant his call was compelling evidence of his guilt. There was, it is submitted, by the close of the prosecution case, a strong circumstantial case which the appellant chose not to meet by giving evidence.

There was evidence of a further fire at 45 The Fairway which was never reported to the police. On or about 7 March 2009, when a search of bedroom 3 took place, photographs were taken of bedroom 3 shared by the appellant, his younger brother and cousin. There was no fire damage to be seen in the room. When the police returned to the house in September 2009, further photographs were taken. Fire damage was found on the carpet in the bedroom. Expert evidence was received which identified scorch marks probably caused by a burning or smouldering synthetic material being trodden into the carpet. When he was interviewed about those marks on 17 September, the appellant claimed that they were not burn marks at all, but oil stains caused when a central heating radiator was being changed. The appellant denied that he was responsible for setting a fire in his own room. It was the prosecution case that this was another fire which fell into the pattern on which it relied. When the appellant’s uncle Hussain first gave evidence he was asked no questions about this fire. However, Mr Henry requested that Hussain be recalled on 14 September 2010 for further cross examination during which he elicited evidence that the damage to the carpet was caused by fire for which he, Hussain, was responsible. Hussain claimed that he had been with his brother and cousin smoking a ‘shisha’ pipe in the bedroom. The shisha was on the window sill. When the hot coals mounted on top of the pipe had set fire to the curtain, his brother, Mohammed, pulled the curtain down and jumped on it to extinguish the fire. The prosecution did not accept the truth of this evidence from Hussain Suleman. Had the fire been caused as was now claimed the appellant had no reason to conceal it from the police in September 2009, nor to pretend that the photographs depicted not fire damage but oil stains.

Mr Birnbaum QC, who did not represent the appellant at trial, leading Mr Henry who did, conceded that it was inevitable that the jury should hear about each of the fires which took place in 2009 notwithstanding only some of them were charged as arson in the indictment. It would have been misleading for the jury to have been informed of some only of the 2009 fires. The evidence of those fires was accordingly admissible pursuant to section 101(1)(c) Criminal Justice Act 2003. Furthermore, the prosecution was properly able to argue that the 2009 fires fell into a pattern from which the jury were entitled, if they thought fit, to draw inferences. The evidence was therefore relevant to an important matter in issue between the defendant and the prosecution, namely the identity of the fire raiser. It was, therefore, also admissible under section 101(1)(d) of the 2003 Act.

Although Mr Henry’s objection at trial was to the admission of evidence relating to any of the fires which was not charged in the indictment, the argument taken on appeal was that the evidence of fires set in 2007 and 2008 should not have been admitted.

The prosecution’s notice of application under Crim PR, rule 35, dated 8 March 2010, which related to all non-indicted fires between 2007 and 2009, was made on three grounds:

However, in his written submissions dated 14 July 2010 Mr Blackburn said:

“11.

To use a term from the old…law, there are striking similarities between what happened in 2007 and 2008 on the one hand, and what happened in 2009 on the other.

12.

It would give a misleading impression to the jury to allow them to hear only about the matters on the indictment. The true position is that premises associated with the defendant have been the subject of repeated, otherwise unexplained and focused arson attacks. Looked at in the round, when one considers the bad character material as well as the evidence in the matters on the indictment:

(a)

The possibility of someone outside the family group having committed any of them recedes to vanishing point;

(b)

With the occurrence of each fire, the number of possible candidates from within the family group reduces sharply; and

(c)

Taken together, the evidence leads forcefully to the conclusion that it can only have been the defendant who set the fires.”

It is noticeable that Mr Blackburn was not in his skeleton argument in July 2010 relying upon the capacity of the evidence relating to the 2007 and 2008 fires (or indeed any one of the non-indicted 2009 fires) to establish a propensity in the appellant to commit the offence of arson.

Mr Henry resisted the admission of the evidence on three grounds. First, the fires had been investigated in 2007 and 2008. There was then insufficient evidence to support the prosecution case that the appellant was responsible, and no-one was charged. Nothing had changed. Second, the alleged connection between the 2007/2008 and 2009 fires was tenuous. Third, the crime reports prepared at the time of the fires had since been mislaid or destroyed. Fourth, there was a danger of prolonged satellite litigation. These features of the evidence individually and cumulatively created a risk of unfair prejudice to the appellant. The evidence should be excluded under section 101(3) and (4) of the 2003 Act and/or section 78 Police and Criminal Evidence Act 1984.

In a ruling given on 14 July 2010, HH Judge Hammond concluded that the evidence of the 2007/2008 fires was admissible for the reasons given by the prosecution. He included as one of those reasons the capacity of all the non-indicted fires to establish a relevant propensity. It was certainly an argument put forward in the March 2010 notice of application that the evidence was relevant to propensity, but it does not appear to have been an argument put forward on 14 July 2010, at least in writing, when the application was heard. Furthermore, the judged noted, it was the appellant’s case as revealed by the recently served defence statement, that the investigation into the appellant’s involvement was biased and pre-judged. In those circumstances it was inevitable that the jury would need to consider the evidence concerning the pattern of fire setting apparently directed at the appellant’s family, the pre-2009 investigations and the outcome of the appellant’s previous arrests.

Mr Birnbaum QC renewed the appellant’s objections to the admission of the evidence. The prosecution’s argument that the 2007/2008 fires completed a pattern relevant to the identity of the fire raiser was, he submitted, severely weakened by the tenuous connection between them. There was doubt whether the attacks on business premises were anything more than the work of intruders and “casual mischief makers”. It was accepted that the link between the fires and the hoax calls was a material consideration for the jury but there were no calls associated with the fires set in 2007/2008. There was insufficient evidence to connect the earlier fires with the appellant. While it was possible to argue that the 2009 fires were characterised by a culprit taking increasing risks of exposure, there was no such argument available in respect of the 2007/2008 fires. Although the appellant had been interviewed at the time of the earlier fires, it was no longer possible for him to give and support evidence of alibi. It was not inevitable that the nature of the defence required the jury to consider the earlier fires. Had the evidence of earlier fires been excluded the appellant would not have relied upon bias in relation to the police investigation. The defence would have concentrated only upon the investigation of the 2009 fires.

It is argued on behalf of the appellant that the judge failed to distinguish between the capacity of the evidence to support proof of a propensity and evidence of a course of conduct relevant to proof of the identity of the perpetrator of the fires. There was no evidence implicating the appellant in the 2007/2008 fires which was capable of establishing a propensity to commit arson in 2009. The course of conduct alleged was, upon examination of the evidence, tenuous at best. The effect of the evidence was prejudicial only. It encouraged the jury to enter into speculation which had no probative relevance to proof of the appellant’s guilt upon the counts in the indictment.

In our judgment, evidence of the 2007/2008 fires was admissible to establish the pattern and progression of offending upon which the prosecution relied to prove the identity of the fire raiser. We accept that, viewed in isolation, evidence of the appellant’s opportunity to light the 2007/2008 fires was insufficient to prove his guilt of arson in respect of any of those fires. We accept Mr Birnbaum’s submission that the evidence could not establish propensity to commit the 2009 fires. The purpose for which the evidence could properly be utilised was explained by the Vice President (Latham LJ) in Freeman and Crawford [2008] EWCA Crim 1863, [2009] 1 Cr. App R 15 and by Moses LJ in McAllister [2008] EWCA Crim 1544, [2009] Cr. App R 10. Moses LJ said at paragraph 14 of McAllister:

“14.

Asking a jury to look at evidence relating to a number of allegations as a whole in order to cast light on the evidence relating to an individual offence is not asking the jury to consider propensity to commit an offence; on the contrary, it is merely asking the jury to recognise that the evidence in relation to a particular offence on an indictment may appear stronger and more compelling when all the evidence, including evidence relating to other offences is looked at as a whole. In other words, the evidence is adduced not as evidence of a propensity but rather to explain and augment other evidence of guilt. Such evidence may loosely be described as “similar fact” evidence although attaching labels in this area of the law, as in so many others, aggravates the confusion.”

We are prepared to accept that at the time of the decision made on 14 July 2010 the evidence of the 2007/2008 fires would not have been admissible to prove propensity. It was, however, admissible to establish a relevant pattern going to the issue of identity. We do not accept that the admission of the evidence rendered the trial unmanageable or unfairly prejudicial. The defence were provided not only with evidence of the appellant’s responses in interview but also with several witness statements made by members of his family who were able to give evidence of the appellant’s movements at the material times. To the extent that the passage of time had made the appellant’s task more difficult, this was a disadvantage which could be and was explored in evidence at trial. For these reasons it is unnecessary to reach a conclusion whether as at 14 July 2010 the evidence was also admissible as essential background in order that the jury could assess, properly, the defence accusation of investigative bias. Once admitted, the evidence was, we think, clearly relevant for that purpose.

It is argued that by the time the judge came to discuss with counsel his directions to the jury (1October 2010) it was clear that, although the prosecution contended that the appellant was the author of all the fires directed at the Suleman family between 2007 and 2009, the probative value of the evidence derived solely from its capacity to establish a pattern which together with evidence of hoax calls pointed towards identification of the perpetrator. The jury could not conclude that the appellant was guilty of the 2007/2008 fires without first considering the evidence relating the 2009 fires and the hoax calls. It followed that the jury could not treat the evidence of the non-indicted fires as evidence of propensity to commit the indicted fires.

It is apparent from the transcript of argument as to ‘cross admissibility’ before the judge on 1 October 2010, that both counsel (Mr Henry and Mr Blackburn) were referring to an issue whether evidence relating to each of the 2007/2008 fires was ‘cross admissible’ with the evidence relating to the 2009 fires whether indicted or not. This is the problem with labels; they can become corrupted as to their meaning. The term ‘cross admissibility’ should be used only to describe an issue whether the evidence in support of one count in the indictment may be relevant in support another count in the same indictment. The term is not apt to describe an issue whether non-indicted bad character evidence is admissible in support of any count in the indictment. That way confusion lies. As we see it, the analysis is as follows:

In our judgment, the following is the appropriate classification of the evidence which emerged in the present case:

We accept Mr Birnbaum’s submission that at the close of the evidence the status of the evidence proving the 2007/2008 fires had not changed. They formed part of the pattern but the jury could not have concluded from proof of the circumstances of those fires alone that the appellant was guilty of any one of them and, therefore, had a propensity to set fires. The evidence relevant to those fires, examined separately and together, revealed no ‘clinching’ evidence to establish the identity of the fire raiser and therefore no basis on which propensity could, thus, have been established. We do not understand Mr Blackburn to have been arguing the contrary before HH Judge Hammond on 1 October 2010.

We have no transcript of any ruling made by the judge upon submissions as to cross admissibility and the parties are not sure there was one. The judge’s analysis of ‘cross admissibility’ is not relevant to the safety of the verdict save to the extent to which it affected his directions to the jury in his summing up which is the subject of the appellant’s ground 3.

The judge directed the jury as follows at page 7H – 8D of his summing up:

“Cross-admissibility. The defendant, Omar Suleman, is facing an indictment containing two counts of making hoax calls and ten counts of arson. You have to consider the evidence for and against the defendant on each count separately. The evidence is different and so your verdicts need not be the same. In assessing the evidence in relation to each count, you’re entitled to consider whether it establishes that the defendant had a propensity to commit offences of this type, namely making hoax calls and setting fires. Bear in mind what the defendant said in his interviews. You must not assume the defendant has a propensity unless you are satisfied that the other incidents took place. If you decide that it does establish a propensity to commit offences of this kind, then it’s a matter for you to decide how far that assists you to resolve the question whether the defendant has committed any of these offences. Evidence of such behaviour is only part of the evidence in the case. Its importance should not be exaggerated.”

It appears from this passage that the judge was directing the jury that they could look at all the count 1 – 12 evidence before deciding whether in relation to any particular count it was proved the appellant was guilty and, accordingly, had a propensity to commit the offence of arson and/or to make hoax calls. If the jury did reach that conclusion they could apply it in their deliberations upon other counts. Although not happily expressed, such a direction was legally accurate. However, the direction was not placed in its appropriate factual context and did not follow the thrust of the case as it had been presented by counsel. We would have expected a propensity direction, if given at all, to have been limited to the strength of the evidence upon count 2 but the judge directed the jury that if they reached a conclusion upon any arson count which established propensity they could apply that conclusion to other counts.

It seems to us that (with the possible exception of count 2) upon the prosecution case presented by Mr Blackburn both in opening and closing, it was highly unlikely that the jury would reach any conclusion about propensity without first reaching a conclusion as to whether the circumstantial evidence viewed as a whole (including the hoax calls) established that (1) the fires were the work of one fire raiser, (2) the hoax caller was the fire raiser, and (3) the hoax caller and fire raiser was the appellant. The judge’s direction on propensity probably added nothing at all to the case against the appellant.

The judge did not direct the jury that they could infer propensity from the 2007/2008 fires. Mr Birnbaum nevertheless submits that at best this direction viewed together with the judge’s other directions on cross admissibility will have served to confuse the jury. We shall have to examine whether the judge’s directions may have resulted in any unfairness to the appellant which affected the safety of the verdicts.

The judge proceeded to examine the question to what extent the jury could utilise the evidence of non-indicted fines. As page 8E – 9D he said:

“There is no suggestion of contamination or collusion in this case so you are entitled, in determining guilt in relation to any count, to have regard to the evidence in relation to any other count. You will need to consider whether it was just a coincidence or whether there are any common threads linking a number of counts.

The Crown say that the defendant committed fires in 2007 and 2008 as a prelude to fires in 2009 which form the counts of the indictment and some other fires in 2009 which are not on the indictment. There are no counts on the indictment to reflect those other fires in 2007, 2008 and 2009 so you do not have to return verdicts on each of those fires. But you’ll have to decide if you’re sure that the defendant did set any of those other fires. If you’re not sure that the defendant did set any of those other fires, then you must ignore those fires in reaching verdicts on counts 2-11. It is only if you’re sure that the defendant committed any of those other fires that you can use that in considering if he committed any of the fires in counts 2-11.”

Mr Birnbaum submitted that this too was a mis-direction because it perpetuated the misconception that the jury could employ the evidence material to the non-indicted fires to reach a conclusion of propensity. We disagree. The judge had turned from the issue of propensity to the issue of the unlikelihood of coincidence, the purpose for which Mr Birnbaum accepted the evidence could justifiably be examined. As we have said more than once, the relevance of the earlier fires was to establish the overall pattern from which the inference of guilt could be drawn. However, the judge warned the jury that they could not use the evidence of any one of the 2007/2008 fires for any purpose if they concluded that they could not be sure that the appellant lit it. That, it seems to us, was an unnecessary direction because the jury were not being invited to conclude that the appellant was guilty of any of the 2007/2008 fires before reaching a conclusion upon the indicted fires. Clearly if the jury could not, as the prosecution invited them, conclude from all the evidence that there was one fire riser and that the evidence pointed unerringly to the appellant, they could not conclude that the appellant was guilty of setting any fires, except perhaps for count 2. The fact, however, that the jury received an unnecessary warning does not seem to us to affect the safety of the verdicts.

Having explained to the jury the structure of the indictment and the issues which arose in respect of each count the judge turned to the central question posed by the prosecution for the jury’s decision, at summing up page 18E:

“In assessing the evidence you need to see if there were any threads running through this case. All the fires occurred at five different locations, two commercial, two residential. All the fire locations were linked to the Suleman family. Hoax calls were made in relation to three of these locations. Was it all coincidence? Was there any common denominator? You need to consider was there a link between the hoax calls and the fires and consider the time, the subject and the premises and ask “where was the defendant at the time of the fire?”

With respect, we think that this should have been the judge’s starting point. It was the essence of the case presented by the prosecution and the case Mr Henry set out to meet. Had this direction been the judge’s starting point, expanded to encompass the evidence in context, we conclude the judge’s other directions would have fallen into place. However, it must, in our view, have been plain to the jury that the judge was dealing with the principal argument upon which the prosecution relied in support of its case, namely that the evidence viewed as a whole pointed inexorably to a single perpetrator both of the fires and the hoax calls and to the identification of the appellant as that perpetrator. Mr Birnbaum had no criticism of this passage in the judge’s directions save to submit that it failed to correct an impression earlier given that the 2007/2008 fires may have been capable of establishing propensity, or at least to remove the confusion, an assertion to which we shall have to return.

Mr Birnbaum submitted that, if the jury was to be permitted to examine the evidence of pattern for the purpose of reaching a conclusion as to the identity of the perpetrator, the judge was required to specify in detail those parts of the evidence which might undermine the existence of a pattern. We agree that the judge was required to direct the jury to be alert for dissimilarities which might serve to undermine the prosecution’s identification of a common thread but we are satisfied that the judge provided the jury with an adequate summary of the issues and evidence for this purpose.

Finally, under this ground, the appellant argues that the judge failed in his summing up to deal adequately with the evidence of the burnt carpet in bedroom 3 (see paragraph 35 above). This incident, he submits, had acquired a prominence in the trial because it represented an occasion on which the prosecution alleged that the fire was deliberately caused in the appellant’s bedroom and he had subsequently lied about it. The complaint made is that the judge failed to refer to evidence which supported the defence case. We do not accept that the judge neglected to deal with this issue. We have seen that he directed the jury that if they were not sure the appellant had set any one of the non-indicted fires then they could not regard that fire as any evidence against the appellant generally. At page 80F and following of his summing up the judge reminded the jury that this was one of the disputed fires which was not the subject of a count in the indictment. He reminded the jury in detail of the evidence of uncle Hussain and of the appellant’s brother, who shared bedroom 3 with the appellant, as to the accident with the shisha pipe. The jury was reminded of the circumstances in which, on 16 September 2009, a scenes of crime officer noted marks on the carpet which had not been present in March, and of the appellant’s claim in interview on 17 September 2009 to the effect that they were oil and not burn marks. Finally, the judge reminded the jury of the evidence of a forensic scientist Dr McDaid who accepted that the burn marks could have been made by molten synthetic material including a curtain, although, if this was the explanation, she would have expected more damage to have been visible by the window against which the curtain was hanging. The judge did not make any comment upon the evidence whether for or against the proposition that the fire was deliberately caused by the appellant whose family was now gathering round to protect him. In our judgment, the judge was not required to make any comment upon this evidence provided the jury were made aware of the issue and the consequences of their decision, which clearly they were.

It was the case for the appellant at trial, advanced with vigour by Mr Henry, that the police adopted the approach that the appellant was the prime prospect against whom the investigation set out to prove its case. It failed, Mr Henry argued, to adopt an impartial approach to the investigation of the fires. To take two examples, it was argued that the investigation was at least negligent in failing to assign scenes of crime officers and expert fire examiners to each of the fires and to take elimination fingerprints from members of the appellant’s family. These were matters the subject of cross examination of the officers who gave evidence in the case. Mr Henry’s criticisms were fully explored in the evidence. He sought from the prosecution the facility to cross examine officers not on the prosecution’s list of witnesses, who may have made policy decisions as to the direction of inquiries into the origin of the fires, and required disclosure of the officers’ notes and policy book entries for the purpose. In the knowledge of the allegation of negligence and bad faith Mr Blackburn reviewed the prosecution’s disclosure obligations and notified the trial judge and Mr Henry that he had no further disclosure to make. This court posed to Mr Blackburn the question whether having considered the grounds of appeal the prosecution had carried out a further review. He informed the court that he had reconsidered the documents available to him and continued to hold the view that there was no disclosure to give.

The appellant seeks to renew this ground after refusal by the single judge. It is argued that the judge’s direction to the jury on the subject of Professor French’s evidence was inadequate for the following reasons:

We reject these criticisms. The judge informed the jury when the evidence was given that they were not to engage in making a judgment for themselves whether the voices they heard were from one and the same person. His instruction was based upon the decision made by this court in R v Bentum [1989] 153 JP 538 that jurors were entitled to hear the recordings upon which the expert opinion was formed without being their own experts. It was, in our view, necessary for the jury to hear the recordings in order to follow the evidence of Professor French’s analysis and opinion. That necessity was not disputed at trial. At page 149 of his summing up, the judge, while dealing with expert opinion evidence, said:

“You have heard expert evidence on the voice analysis which you must consider with care. You are also entitled to consider the voices using your own common sense. But bear in mind that you are not the experts and did not have access to the sophisticated equipment used by the expert in this case, Professor French.”

Mr Birnbaum argued that this passage may have been understood by the jury to be a reversal of the instruction they had already received. We do not accept his argument. The judge was reassuring the jury that in judging the weight of Professor French’s opinion they were entitled to recollect the voices they heard. This was made clear when the judge came to summarise the expert’s evidence. At page 37C he said:

“Professor French is a forensic consultant with an expertise in the analysis of speech. He is an independent expert whose duty is to the court and not to any party. He accepted that this science is not like fingerprint evidence. He accepted that he does not identify the defendant and that one should not rely on voice analysis on its own, but that one should look for other evidence as well, and that it requires expert evidence and particular care was required when a voice has an accent including an ethnic accent. Phonetics required ear training.”

As to the dangers arising from similar voices within families the judge summarised Professor French’s evidence at page 37E:

“within families some members may have similar voices. One needed to look at clusters of individual features because what occurs in isolation may not be unusual or significant.”

In reaching his conclusions Professor French said that he had been assisted by Asfor Bagdin who checked his work on the count 1 calls and ‘co-authored’ his report in relation to the count 12 calls. The judge reminded the jury of Professor French’s evidence that it was unnecessary that either listener-expert should have a familiarity with Gujarati. What was required was a familiarity with styles of broken English. Mr Henry’s suggestions in cross examination of Professor French were summarised by the judge as were Professor French’s responses.

In his reasons for refusal of leave on this ground Sweeney J said “the real question is whether the learned judge’s directions were sufficient to reassure a safe outcome, and in my view they were. Further reference to voice parades, which were irrelevant [because the jury was instructed this was not an exercise in identification by voice], would only have served to confuse”. We agree with this conclusion. The effect of Professor French’s evidence was to describe an important strand of the circumstantial prosecution case, not to make an identification of the appellant. Only having considered this evidence in conjunction with the mobile phone attribution evidence could the jury have reached the sure conclusion that the appellant was the hoax caller and we are satisfied that the jury would have understood the judge’s directions. We decline to grant leave upon this renewed ground.

We have concluded that the “bad character” evidence was properly admitted to establish a pattern of behaviour by a single fire raiser which was capable, depending upon the jury’s view, of proving a number of relevant characteristics of the perpetrator. We have accepted that the evidence of the 2007/2008 fires, looked at in isolation, was not capable of supporting a finding that before the 2009 fires took place the appellanthad a propensity for fire setting. The questions we have to consider are whether the jury may have misunderstood the judge’s unnecessary (as we find it) generalised propensity direction relating to the counts in the indictment, and whether they received sufficient help as to the proper basis on which they were entitled to consider the evidence of pattern.

Unusually we have been provided with a transcript of prosecuting counsel’s final speech to the jury. We are quite clear that both counsel approached the forensic task of presenting their arguments to the jury on the basis that the prosecution was relying upon the pattern allegedly established, and not upon propensity. The judge did not, as we have found, instruct the jury that evidence of the 2007/2008 was capable of establishing propensity. He did direct the jury that they should examine all of the evidence for the presence of the ‘common thread’ on which the prosecution relied. We note that in Mr Blackburn’s note of opening to the jury it was on the pattern of offending and not upon any pre-indictment propensity that he relied. As Mr Blackburn conceded both in his opening and at page 8 of the transcript of his closing address to the jury:

“Because, at the start – let me say it perfectly openly – at the start back in January 2007, it nearly could have been anyone, couldn’t it ladies and gentlemen.”

At page 9 Mr Blackburn observed:

“It took a while, you may agree, to see the pattern. Sometimes you can be looking at something for a while, you can’t see the links until finally you get enough information that rightly give you the overall picture. And it takes longer still to be able to prove the pattern using evidence fit to be put before a jury.”

Mr Blackburn was making these concessions in closing as the prosecution’s response to the allegedly biased investigation. Mr Blackburn was making the argument that far from being biased the officer in charge of the investigation acknowledged that there was insufficient evidence upon which any jury could conclude that the appellant was responsible for the 2007/2008 fires. It was only when the full picture emerged that there was sufficient evidence to charge the appellant. That the investigating officer recognised that reality was, Mr Blackburn argued, evidence of a properly objective approach to his responsibilities.

The next section of Mr Blackburn’s address to the jury sought to demonstrate the inexorable progress towards the conclusions that (1) there was one fire raiser (2) the hoax caller was the fire raiser (3) the fire raiser was a member of the Suleman family, and (4) the hoax caller and the fire raiser was the appellant. While we do not have the advantage of a transcript of Mr Henry’s address to the jury we are satisfied that this is the prosecution case he set out to meet. We entertain no doubt that, despite the learned judge’s unnecessary reference to propensity arising from a finding in respect of any one of the arson counts, the appellant was not prejudiced. Had it crossed their minds to wonder whether any of the 2007/2008 fires was proved against the appellant (without first concluding that all fires were proved against him), the jury will have spent no time considering such an issue in the face of Mr Blackburn’s explicit concession that there was insufficient evidence even to charge the appellant until the development of events in 2009.

Mr Birnbaum sought to persuade the Court that the jury’s verdict of not guilty upon count 6 and the differential majority verdicts reached upon some counts may reveal confusion generated by the judge’s direction on propensity. We fail to see how it could. The count 6 material apparently alight in the garden comprised the remnants of material already fire damaged during the non-indicted trolley fire on 1 March 2009. The remainder of the verdicts are readily explained by the jury’s examination of the detail of the evidence relevant to each fire and the application of the burden and standard of proof.

We express our regret that while there was discussion with the judge before speeches, no-one present thought to address the terms of the judge’s directions on the purpose(s) for which the jury might utilise the pre-2009 evidence. In earlier argument the “cross-admissibility” of evidence was discussed in general but no understanding seems to have been reached between Bar and Bench as to appropriate directions to the jury on the facts of the current case. It seems to this court essential that the trial judge and the advocates give explicit attention to these matters, before speeches if possible, in order to eliminate the risk of misunderstanding by the parties or by the jury. Some judges would have supplied to counsel and the jury written directions of law, prepared with the assistance of counsel, which they would then have read into the summing up. The preparation of written directions can be, in our experience, a salutary discipline for all involved.

For the reasons we have given we do not doubt the safety of the verdicts and the appeal is dismissed.

In the course of argument the question was posed from the Bench whether the evidence of pre-2009 fire setting was bad character evidence at all since it might be “evidence which (a) has to do with the alleged facts of the offence with which the defendant is charged” within the meaning of section 98(a) Criminal Justice Act 2003.

Both parties were agreed at trial that the evidence was bad character evidence which required an application under Crim. PR, rule 35 and that remained their view on appeal. Having considered the matter without full argument, for which the parties were unprepared, we have assumed that there was a connection between the earlier and later fires only in the sense that, upon the prosecution case, the earlier fires represented evidence of other offences committed by the appellant as part of a pattern of which the indicted offences formed part. The evidence of the earlier fires was adduced in support of a conclusion of guilt rather than as evidence having to do with the facts of each of the arson counts in the indictment (Tirvaneanu [2007]2 Cr App R 23; Mullings [2011] 2 Cr App R 2).

Had we come to a different conclusion the court would still have been required to confront the appellant’s argument that a propensity direction was not appropriate and we would have reached the same destination.