Shabir, R. v

The principle issue on this appeal against conviction, which we heard on 16 October 2012, concerns the admission of hearsay evidence when a witness asserts that he will not give oral evidence at the trial "through fear". It therefore involves both Chapter 2 of Part 11 of the Criminal Justice Act 2003 ("the CJA") and Article 6 of the European Convention of Human Rights ("ECHR"). The relationship between the CJA and a defendant's Article 6 rights have been extensively examined by this court and the Supreme Court in R v Horncastle (Footnote: ¹)and were again considered by this court in R v Ibrahim (Footnote: ²)and, even more recently, in R v Riat, Doran, Wilson, Clare and Bennett. (Footnote: ³) At the conclusion of oral argument on 16 October we announced that the appeal against conviction on counts 1, 2 and 3 would be allowed, for reasons that we would hand down later. These are our reasons to which all members of the court have contributed.

The appeal arises from the conviction on 3 August 2011 of Mohammed Hanees Shabir, now 28, of four offences, following a trial before HHJ Stewart QC and a jury in the Crown Court at Bradford. That trial took place after one before HHJ Goss QC in February 2011 had been abandoned. On 3 August 2011 the appellant was convicted of attempted murder (count 3), possessing a firearm with intent to cause fear of violence (count 1), having a firearm with intent to commit an indictable offence (count 2) and assault occasioning actual bodily harm (count 5). For those offences he was sentenced to a total of 20 years imprisonment. (Footnote: ⁴) Counts 1,2 and 3 arise out of a shooting incident in Bradford on 24 September 2010. Count 5 arises out of an incident the following day.

The appellant was acquitted of two other charges, one of possessing a firearm and one of attempted kidnap. Those allegations arose out of the second incident.

There were two co-accused, Mohammed Aqib and Mohammed Asim Khan. They were both convicted of assault occasioning actual bodily harm and acquitted of attempted kidnap. Those offences also concerned the second incient. Aqib was sentenced to 2 years imprisonment less time spent on remand. Khan was sentenced to 2 ½ years imprisonment less time spent on remand.

The sequence of events began on 24 September 2010. The appellant and two friends were at some car-hire premises in Nelson Street, Bradford. Quasir Rafique ("Rafique"), then aged 24, who was later to be the victim of the attempted murder, arrived with a friend at the same premises. There was a confrontation between the appellant and Rafique. The incident, which was not particularly serious, was recorded on CCTV. Witnesses present were unanimous in blaming the appellant for starting the altercation. They said that the appellant threatened Rafique and that the appellant said that he knew where Rafique lived and that he was going to come and "get" him.

Later that evening Rafique drove to Summerville Road in Bradford, which is a meeting place for young Asian men. There he met a number of friends. At about 9.25 pm, a gunman appeared and chased Rafique, saying he was going to kill him. Rafique ran to a Lexus car, where the witness Wasim Riaz was in the driver's seat. Rafique jumped into the car. As the Lexus set off the gunman fired a shot which penetrated the nearside front door of the car, but struck a brace in the door and lodged there. The forensic evidence established that it was a 9 mm calibre bullet. As already noted, these events gave rise to counts 1,2 and 3. Counsel for the appellant accepted at the trial that there was ample evidence from which a jury could conclude that the gunman intended to kill.

In the early hours of the following morning Rafique gave a statement to the police concerning the events of the previous day. He said that he had recognised the gunman immediately as being the appellant. Rafique also said that he had known the appellant for years, that the appellant had forced him to steal from the Tesco's store where Rafique had worked at the time and that the appellant had also made Rafique engage in drug dealing. Rafique said that the appellant had began to threaten to shoot him and his family because he refused to continue to do the appellant's bidding in relation to drugs. This culminated in the incident in Summerville Road.

After Rafique made this statement, he went home. Later that morning, ie on 25 September 2010, Rafique was asked by his father to take his car to be washed at a car-wash called Dr Sponge, which is in Whetley Lane, Bradford. There Rafique was assaulted and received a bloody nose. He said the assault was carried out by the appellant and the two co-accused, who had all arrived in a Golf car, driven by Mohammed Asim Khan. Rafique said that the appellant hit him with the butt of a pistol held in the appellant's hand. Rafique went home and immediately complained of an assault by the appellant and the two co-accused. These events gave rise to count 5 (and the two counts of which the appellant was acquitted). Rafique made a second statement shortly after this incident. He described the events as summarised above and he referred to the appellant as "Hanees Shabir, the same guy who shot at me last night".

The appellant was arrested soon afterwards, whilst driving the Golf car. An unfired 9 mm short calibre cartridge, capable of being fired was recovered from the Golf. However, the forensic scientists could not say whether the cartridge fired into the Lexus and that recovered from the Golf had been loaded into the same magazine or chambered in the same firearm. There was no DNA or fingerprint evidence on the cartridge recovered from the Golf. The appellant's clothing was examined and some blood was found on it. Samples were tested and each matched the DNA profile of Rafique.

The appellant gave a "no comment" interview.

Subsequently there was a VIPER identification procedure on 27 October 2010 and the appellant's image was one of those displayed. At that Rafique identified the appellant as the man who attacked him with a gun and fired a shot at the Lexus in Summerville Road on 24 September 2010. Rafique said that he recognised "Number 6 as Hanees Shabir". It appears from the written submissions of Mr Jameson QC in opposition to the application to adduce Rafique's statements under section 116 of the CJA that the two men knew each other. However, that was not an agreed fact at the second trial.

There were four other eyewitnesses to the shooting in Summerville Road. They were the driver of the Lexus, Wasim Riaz; Sohail Mohammed, who had been in the Lexus but was left behind at the scene because the Lexus drove off before he could get back into it; Tauseef Mahmood, who was a passenger in the Lexus as it drove off and, lastly, a man who was known only as "Witness E". Wasim Riaz and Witness E said in their statements that they did not recognise the gunman. Sohail Mohammed and Tauseef Mahmood made statements in which they said that they had seen the gunmen before, that he was a well-known local drug dealer and that his name was "Hanney" or "Hanny".

At the VIPER identification procedure in which the appellant participated, none of these four eye witnesses identified him. In evidence at the trial both Sohail Mohammed and Tauseef Mahmood gave evidence that a man they called "Hanny", who they said was the gunman, was not on the ID parade. The witness E did not give evidence. As he was not identified, his statement could not be admitted under the "hearsay" provisions of Chapter 2 of Part 11 of the CJA 2003. (Footnote: ⁵)

As already noted, Rafique gave statements very shortly after each of the two incidents. In the first, which was given in the early hours of 25 September 2010 immediately after the Sommerville Road incident, he identified the appellant as the gunman. He described the appellant as an Asian male, very thin, aged 26 years, about 5feet 10 inches tall, having short black hair with short back and sides and being unshaven with a rash on his neck and by his ears. Rafique said also that the appellant was wearing black training shoes, black plain tracksuit bottoms, a plain black hooded top with a hood and black leather gloves. Rafique ended his first statement as follows: "I am willing to go to court and give evidence about this incident. I am frightened about what he might to do to me and rang (sic) family but now enough is enough".

The second statement was given on 25 September 2010, after the car-wash incident. In that statement Rafique said (on page 2):

"I said in my last statement how I know Hanees and I know him as Hanny".

In fact Rafique had not said in his first statement that he knew the appellant as "Hanny". In the first statement Rafique always referred to the appellant as "Hanees" or "Hanees Shabir". Rafique said in his second statement that "Hanny" had two gloves on, which were the same as the previous night, being "black leather, light fitting, like a golfer's glove".

The First Trial before HHJ Goss QC

At the first trial before HHJ Goss QC, Rafique, who was by then a serving prisoner, attended to give evidence on 24 February 2011. It became clear that Rafique was equivocating in his answers to questions from counsel for the prosecution, Mr Wood. Mr Wood then (in the presence of the jury) put Rafique's two statements to him and asked him if he remembered making them and Rafique replied "No, I can't remember". Mr Wood then, in the absence of the jury, applied to the judge that he be allowed to treat the witness as "hostile". Both Mr Jameson QC, counsel for the appellant, and counsel for the co-accused Khan, pointed out to the judge that the consequence of permitting that course would be that the jury would be asked to consider these serious charges on the basis of hearsay evidence (in the two statements) (Footnote: ⁶) that had just been disavowed by the maker. Judge Goss ruled that Rafique should be treated as a hostile witness, so that he could be cross-examined by the prosecution on the two statements that he had given.

Rafique then continued his evidence. He said, in relation to the drug selling some years ago, that although he had thought that he was selling drugs for the appellant, in fact it was not him; it was someone else. Rafique also said that "at the time I got shot I thought it was Hanees, but it was not Hanees Shabir". He said that he had thought about that in prison and concluded it was "not Hanees". Mr Wood specifically asked Rafique if, at the time, he had been threatened by the appellant or whether he was now frightened of the appellant or his friends. Rafique answered "no" to those questions. However, Rafique then said, more than once, that he did not wish to carry on giving evidence. At the end of the morning the court adjourned and Mr Wood indicated that he had "some misgivings as to what is said to be the mental health of this witness". Arrangements were made for Rafique to continue his evidence the following day by television link.

Rafique did so the following day. Mr Wood put to Rafique portions of his statements about the two incidents. Rafique confirmed that he had made the statements and, for the most part, he confirmed that in doing so he was telling the truth. However, he denied that it was the appellant who had been the gunman in the Summerville Road incident, saying that he had previously thought the gunman was "Hanees" but, in fact, it was not him. However, Rafique did accept that the description that he had given in his first statement was that of "Hanees". (Footnote: ⁷) Rafique also accepted that in his second statement he had identified the appellant as being in the Golf at the car-wash incident. He also said "I thought it was Hanees, but it wasn't Hanees". Rafique accepted that he had identified the appellant at the VIPER identification procedure, but he said that he did so because the person "looked like him". He denied that he picked out that person because it was the person that had shot at him in Sommerville Road or who had attacked him at the Dr Sponge car-wash.

At the end of the examination in chief it became known that Rafique's mental illness had previously been diagnosed as paranoid schizophrenia. The judge took the decision to stop the trial in order that there could be further investigation of Rafique's mental state. It transpired that Rafique had been first treated for psychotic experiences on 2 March 2009 when he had been admitted to hospital under section 2 of the Mental Health Act 1983. Rafique had been released subsequently and, to some extent, treated in the community.

There is one further matter to note about the first trial, which concerns Witness "E". He had given a statement to the police on 3 November 2010. There are now two versions of the statement; one is the original and is "unredacted" and the other is "redacted". We set out below various matters as related in the "redacted" version. This describes how E saw events in Summerville Road in the evening of 24 September. He said he saw a man, described as Asian with "moderate skin colour", about 18 to 23 and of skinny build, wearing a baseball type cap with the peak, apparently made of leather, standing in the middle of the road and acting aggressively. E said that this man took out an object, which E later identified as a gun, from the boot of a car, then approached another car and fired a shot. E then called 999. E said that he had never before seen this man nor any other of the men involved in the incident and he had not seen them since.

It appears that the prosecution had not intended to call E as a witness, but appreciated that his statement might give assistance to the defence or undermine the prosecution case, so that there was a statutory obligation to give disclosure of it. During the first trial there was an ex parte hearing before HHJ Goss QC, in which the prosecution sought permission to serve on the defence a "redacted" version of the statement, in which the witness would be referred to only as "E" and various portions of the "unredacted" version would be removed. We were informed by Mr Wood that, at this application, Judge Goss had the unredacted version of E's statement before him and that he heard evidence from a policeman on oath. He also told us that Judge Goss did not hear any submissions from defence counsel before or after the ex parte hearing, but that the judge knew that the defence opposed the grant of any order to redact the statement or make the witness anonymous. Judge Goss gave permission for the redacted version of the statement, by a witness called only "E", to be disclosed to the defence.

We have not seen any transcript of the ex parte hearing before Judge Goss or of his ruling, so we do not know the precise basis on which the order was sought or made. If the position was, at the time of the application, that the prosecution did not intend to call E as a witness, then it is difficult to see how the order could have been made pursuant to section 86(2)(a)(i) of the Coroners and Justice Act 2009 ("CAJA 2009"), which gives the court power to withhold the name of a "witness" if the three conditions set out in section 88 of the CAJA 2009 are fulfilled. There are two difficulties (at least) in this having been an order under section 86(2)(a)(i) of the CAJA 2009. First, a "witness" is defined in section 97(1) as "any person called, or proposed to be called, to give evidence at the trial or hearing in question" in any criminal proceedings. E was not in that position at the time the application was made. Secondly, if the prosecution had decided, at the time of the application, not to call E as a witness, then Condition C (set out in section 88(5) of the CAJA) could not have been satisfied either. That "Condition" is that "the importance of the witness's testimony is such that, in the interests of justice the witness ought to testify…". We assume, therefore, that this order was made following an application that the prosecution could be relieved from the obligation of giving full disclosure of E's unredacted statement, on grounds of Public Interest Immunity

After the first trial.

Dr Kumal Kala, consultant psychiatrist, who had reported on Rafique's mental state in December 2010, was asked after the first trial to prepare a further report on, amongst other things, Rafique's mental state on 24 and 25 September 2010 and his current mental state. Dr Kala interviewed Rafique for 2 hours in HMP Doncaster on 23 March 2011. In his report dated 28 March 2011, Dr Kala concluded that Rafique's mental state in September 2010 was "marked with mental illness" but at that time he was taking illicit drugs and appeared to have been intoxicated with alcohol and "substances". Dr Kala commented that "illicit drug use can often result in precipitating relapses of psychotic illnesses such as schizophrenia and schizoaffective disorder." However, Dr Kala concluded that it was difficult for him to comment much more on Rafique's mental state as at 24/25 September 2010, because of Rafique's reluctance to disclose more details about his circumstances at the time.

Dr Kala summarised Rafique's current mental state as follows:

"[it] remains marked with persecutory and paranoid delusions, occasional grandiose delusions, occasional irritability, psychomotor agitation during periods of elation or retardation during depressive illness….he displays reasonable insight into his current mental state, his diagnosis and the need for treatment". (Footnote: ⁸)

The second trial, before HHJ Stewart, started on 18 July 2011. Rafique was due to give evidence that day. In the judge's ruling on the admission of Rafique's statements as hearsay evidence, given on 21 July 2011, he says that Rafique had that day refused to get into the prison van to bring him from Wolds prison, where he was awaiting trial or sentence. However, two police officers DC O'Keefe and DC Oxley visited Rafique "in the cell" (Footnote: ⁹) on 18 July 2011 and spoke to him. They took down a statement from Rafique which was read to him and he signed it. In that statement Rafique said that the statements he had given to the police at the time of the incidents of 24 and 25 September were "true and factual".

Rafique's statement of 18 July 2011 continued:

"I am providing this statement to say that I cannot go into court to give my evidence. The reason for this is that I am terrified of going into court. There are three people on trial who could go to prison as a result of my evidence. They are Mohammed Asim Khan who I know as "Beasty", his brother Mohammed Aquib and Mohammed Hanees Shabihir. I am very frightened of these people. I am in fear of what they will do to me when I get out of prison and return to the area where I live. They also know my family and I am scared of what they will do to my family. When I say I am scared it is because I believe physical violence will be used against me or my family. I am currently serving a prison sentence and have been at that prison for about two months. While there several people have approached me and called me a grass. Several times I have been threatened with violence while there. Before I moved to my present prison I was at Doncaster. While at Doncaster I was assaulted on three occasions. While being assaulted I was again called a grass. On each of those occasions I informed the staff at Doncaster prison. I do not wish to say anything else about this case".

In the light of this statement, the prosecution made an application to adduce Rafique's two statements (of 25 September 2010) as evidence, without calling Rafique as a witness, pursuant to section 116(1) and 116(2)(e) of the CJA. These, together with section 116(3)and (4) provide:

The defence opposed the application, so the judge decided that there must be a voir dire to hear evidence before he determined it.In order that the court could have an up to date opinion on Rafique's mental state, he was interviewed by Dr Andrew Cobb, a police surgeon and psychiatrist, for 26 minutes in the Bradford Crown Court cells on 19 July 2011, with a detention officer "in close proximity". Dr Cobb prepared a short manuscript statement after this interview and he gave evidence on the voir dire. The statement records that Rafique said that he did not want to give evidence because there were people who wanted to hurt him, whilst at the same time denying that "any defendant" would want to harm him and volunteering that "they have got the wrong people". Dr Cobb's conclusion in his statement was that Rafique was "to a degree" paranoid, depressed and fearful, "that fear being a reasonable response to proven events which represent ongoing threats to his safety. The paranoia and depression does not in itself (sic) make him unable to undergo ordinary court processes".

The two officers who took the witness statement from Rafique gave evidence in the voir dire. DC O'Keefe's evidence was that he and DC Oxley visited Rafique in "the cells". DC O'Keefe said that he told Rafique that "he had come to see him to ascertain his state of mind as to giving evidence. How he felt about going into court". DC O'Keefe said that he told Rafique that he was interested in taking a statement and that Rafique agreed to provide one. DC O'Keefe is recorded by the judge as giving evidence that he told Rafique that "his original statement may be read out". The judge's recital of DC O'Keefe's evidence in chief then continues: (Footnote: ¹⁰)

"I [ie. DC O'Keefe] asked for a statement about whether he wanted to make a statement as to why he did not wish to give evidence. He gave reasons why not, he did not wish to give evidence and what his fears were. I asked him whether his witness statement was true. He said it was true. He said he was frightened to give evidence…..I showed him the witness statement I took from him. He wanted me to read it. He signed it. He said he was happy with it. I never said his witness statement would be read. I was with him for 25, about 20 to 25 minutes".

The judge also recorded that DC O'Keefe stated that he did not note down the questions put to Rafique or his answers, but the statement was prepared after Rafique had answered all questions, so that they knew what he wanted to say.

We were informed by Mr Wood that DC O'Keefe "asked for a statement about whether [Rafique] wanted to make a statement as to why he did not wish to give evidence" as a result of what DC O'Keefe had been told by the prison authorities about Rafique's attitude. We were given no further details. DC O'Keefe was cross-examined by Mr Jameson QC, counsel for the appellant. Mr O'Keefe said that he informed Rafique that "his statement may be read". Mr O'Keefe also said that he was as sure as he could be that it was the appellant and his co-accused of whom Rafique was frightened.

Dr Cobb's evidence was, effectively, the substance of the short report that he had prepared after the interview on 19 July 2011. He said that Rafique had the ability to instruct lawyers, to understand the court process and to make balanced judgments. Dr Cobb also said that Rafique told him that he had asked the police what would happen to him if he did not testify and that he [Rafique] was considering the consequences. Dr Cobb said that in his examination of Rafique he did not see anything which would enable him to conclude that he was not a reliable source of information.

Rafique himself did not give any direct evidence on the voir dire.

In argument, Mr Jameson QC, on behalf of the defendant, advanced seven reasons why Rafique was not capable of being demonstrably a reliable witness and/or that his evidence could not be properly tested or assessed.

The judge's ruling on the admission of Rafique's statements under s.116 CJA

In giving his ruling, Judge Stewart first described the history of the proceedings, including the first trial before Judge Goss. The judge said that his reading of the transcripts of Rafique's evidence before Judge Goss was that "he was terrified of giving evidence, which in particular implicated [the appellant] in the events of 24^th and 25^th September. I can best describe my impression of [Rafique] as a rabbit in headlights". (Footnote: ¹¹) This was, the judge said, exemplified by Rafique's attempts to deflect questions by giving answers like "I can't remember". Judge Stewart noted that Rafique had first told the police that he had been shot by Haness Shabir but that, after the "car-wash" incident, the police log indicated that Rafique told the police that he had been attacked "by the same man who shot him in Summerville Road". The judge continued: "[Rafique] identified that person as Asim, otherwise known as Beastie, a close friend of Shabir…". The judge said that if that was a change (which would be a matter for evidence), then "it was explicable by Rafique suddenly realising the impact of what he had said". (Footnote: ¹²) The judge then referred to the report of Dr Kala in which he had recorded that Rafique had said he was reluctant to disclose details relating to the appellant (and the other co-accuseds) because he was fearful of reprisals by them.

The judge next set out extracts of Rafique's statement of 19 July 2011, recounted the evidence of DC O'Keefe and DC Oxley in the voir dire and referred to the evidence of Dr Cobb, all of which we have already referred to above. The judge concluded (Footnote: ¹³) that the effect of Dr Cobb's evidence and of Dr Kala's report was that "…Qaiser Rafique is perfectly capable of being a reliable source of information". Later in his ruling, the judge held that Rafique was capable of being a reliable witness (Footnote: ¹⁴).

The judge then examined the arguments advanced by Mr Jameson in opposition to the admission of Rafique's two statements. In relation to the other four eye witnesses, the judge surmised that their failure to identify the appellant at the VIPER procedure "could be explicable by fear, just as is Qaiser Rafique's reluctance to give evidence in this case". (Footnote: ¹⁵) He said that their witness statements "describe [the appellant] in detail, both as to name and as to what he was wearing at the time". In dealing with Mr Jameson's submission that Rafique's evidence could not be properly tested or assessed, the judge said that this could be dealt with by directions to the jury. His ruling continued:

"However, the problems which the defence of [the appellant] encounter are, if the witness is in fear, which I find he is, due to [the appellant's] behaviour, and are therefore to a large extent self-inflicted. The interests of justice which I am obliged to consider apply equally to the prosecution as to the defence". (Footnote: ¹⁶)

The judge said that, in accordance with Judicial College guidelines, he would not tell the jury that the reason that the statements were read was because the witness Rafique was "in fear". (Footnote: ¹⁷)

Ruling on the disclosure of the identity of the witness E.

On 26 July 2011, Mr Jameson applied to the judge for an order that the identity of the witness E be disclosed to the defence. Judge Stewart read a copy of the redacted version of the statement of Witness E. There is nothing in the transcript of this application to suggest that Judge Stewart had read or had seen the unredacted version. He described Judge Gross's order as a "provisional ruling" and he invited Mr Jameson to make submissions as to why it should not be made a "final" ruling. The judge said that he was reluctant to order that E's identity be disclosed because, first, an order (for withholding the identity) had already been made, and, secondly, because an order to disclose E's identity might result in him being "very fearful". He also said that Judge Goss "obviously had a very good basis" for making his ruling on anonymity and that he was not, at present, prepared to overrule it. The judge accepted that, if the witness remained anonymous, then his statement could not be read to the jury, even though, on the face of it, it might assist the appellant.

At the end of submissions in open court the judge ruled that he had "made [his position] abundantly clear" and he was not prepared to reverse Judge Goss's anonymity/Public Interest Immunity ruling "for the moment". The judge said that he would give the prosecution a short adjournment to consider the position in the light of his ruling.

On 27 July 2011 Judge Stewart ruled on the prosecution's application to treat the witnesses Sohail Mohammed ("Sohail") and Tauseef Mahmood ("Tauseef") as "hostile". In relation to Sohail Mohammed, the judge compared what the witness had said in his statement to the police and what he said in his oral evidence in chief. In his statement to the police, Sohail had said that he had seen a man he knew as "Hanny" chasing Rafique down Summerville Road with what looked like a 9mm handgun in his hand. In his oral evidence he said that he had heard the name "Hanny" from others and he did not identify the gunman as "Hanny" or the appellant. The judge said he concluded that this witness "had a hostile animus towards the Crown", in particular in relation to identifying the gunman.

The judge made the same comparison between the statement to the police of Tauseef Mahmood and his oral evidence at the trial. In his witness statement he had identified the gunman as someone he knew as "Hanny". In his oral evidence he said that he did not recognise the gunman and so contradicted his witness statement in stark terms.

The judge ruled that, in relation to each of the two witnesses, the prosecution could cross examine on those parts of the witness statement which related to the identity of the gunman, whom the witnesses had described and referred to as "Hanny", which was a name that had been given to them by Rafique. The consequence of this ruling was that if the witnesses admitted making their written statements then those statements would become evidence of the facts stated therein even if they did not admit their truth in oral evidence: see section 119 of the CJA. If they did admit the truth of parts of their written statements that were put to them then that would be part of their oral evidence given in the trial. In the event, both Sohail and Tauseef said in their oral evidence that they did not recognise the gunman and gave a description that was different from that given in their statements.

Various facts about Rafique, in particular concerning his mental health history and his criminal record, were agreed and placed before the jury. Rafique's record included offences of assault on a constable and racially aggravated harassment as well as being in possession with heroin with intent to supply and concerned in the supply of both heroin and cocaine. The facts referred to the fact that Rafique had been first diagnosed with paranoid schizophrenia in November 2010 and that a Mental Health Act assessment on 5 October 2010 had indicated that there was a concern for the safety of others because Rafique had "many convictions for violence and presented as an extremely volatile and aggressive young man". Prison medical notes of 14 January 2011 were to the same effect and indicated that he may need to be considered for a "hospital transfer". The agreed facts also referred to Dr Kala's report and the fact that Dr Cobb had interviewed Rafique on 19 July 2011, although details of the interview were not given. The agreed facts also stated that Rafique had started work at Tesco's on 11 March 2006 as a customer assistant in the checkout department and that he had been summarily dismissed on 11 November 2006 for colluding with others to obtain stock without making payment.

The summing up

We need only deal with those parts of the summing up which concern Rafique's evidence, because that is the only aspect of the judge's summing up which is the subject of criticism by the appellant. The judge warned the jury of the potential risks of relying on a statement of a witness "who you are not able to assess", particularly someone with both a criminal record and mental health issues, which were relevant to his credibility as a witness. (Footnote: ¹⁸) The judge identified for the jury evidence which was "capable of confirming the accuracy of what [Rafique] said about each incident". (Footnote: ¹⁹) The judge identified five topics which he said were capable of confirming the accuracy of Rafique's statement as to the shooting incident. He referred to the incident at the car-hire premises before the shooting in Summerville Road; the provenance of the bullet found in the Lexus's door and the fact that a live cartridge was found in the Golf which the appellant was driving when arrested; the fact that gloves were found in the glove compartment that were similar to those described by Rafique as being worn by the appellant at the shooting and the car-wash incidents and that Sohail and Tauseef had also said that similar gloves were worn by the gunman.

The summing up then continued: (Footnote: ²⁰)

"…the witness statements of Sohail and Tauseef, both of which indentify Shabhir as the gunman wearing gloves, is capable, if you accept that it is this Shabhir they were describing, as being corroborative of [Rafique's] identification of Shabhir. Fauseef said to the police when he was taken through his statement that it was 100 per cent true".

The judge then identified supporting evidence concerning Rafique's account of the car-wash incident.

Next the judge gave a Turnbull direction on identification evidence and said that there were three identification witnesses, the first of which was Rafique. The judge reminded the jury that his evidence had not been tested, that he was mentally unwell and that he had a record. (Footnote: ²¹) The judge said that Sohail "identified the gunman in his witness statement but not in his evidence or at the identification parade". With regard to the witness statement of Sohail, the judge said "..what Sohail said…about Shabhir or the person he described as "Hanny" was that " …he saw a male he knows as "Hanny" chasing Rafique" and "Hanny" had a 9 mm gun in his hand. The judge explained that Sohail had said in his witness statement that he believed that the nickname "Hanny" was short for his real name which he thought was "Hanees". (Footnote: ²²) The judge then referred to Tauseef's evidence of identification of "Hanny". In doing so the judge referred to Tauseef's "description of the identity in [his] witness statement" as being "…I recognised the male with the gun, I know him as "Hanny"…". (Footnote: ²³)

The following morning Mr Jameson requested the judge to correct what he had said about the evidence of Sohail and Tauseef as being potential corroboration for the identification of the appellant by Rafique. Mr Jameson pointed out that, whether or not the name "Hanny" had been given to those witnesses by Rafique, "there is no evidence that "Hanny" is the defendant, Mohammed Hanees Shabhir". (Footnote: ²⁴) The judge told the jury that they could not be sure that "…the Hanny which Sohail and Tauseef were referring to was Shabhir, as opposed to [Ansar Hanif Mahmood], the man he had referred to earlier".

In this second part of the judge's summing up, he referred to the defences' argument that the jury should not believe Rafique's statements because his unreliability was demonstrated by his violence and dishonesty and his medical history. The judge said that "…at the end of the day…this case is about the two witness statements made by [Rafique] and whether or not he was telling the truth in those witness statements". (Footnote: ²⁵)

All these remarks were, the judge said, part of his directions on the law. The judge then said he would review the evidence for the jury. When the judge summarised the evidence of Sohail he reminded the jury of Mr Jameson's comment to them that Sohail did not mention the name "Shabhir" in his witness statement, only "Hanny". The judge continued, by reference to the comments of Mr Jameson:

'…"Could this be that [Sohail] was referring, when talking about "Hanny" to someone other than the [appellant], Shabhir? Particularly in the light of the fact that he said at the identification parade, Ansar "wasn't there" which we know in fact is true…'.

Mr Jameson reminded the judge that what Sohail had actually said was that "the gunman" was not at the identification parade and he had not referred to Ansar. The judge corrected that mistake.

There are four grounds of appeal. First, it is said that the statement of Rafique should not have been admitted as hearsay evidence under the provisions of section 116(2)(e) of the CJA. In relation to this ground, it was submitted by Mr Jameson that the evidence of Rafique on the identity of the gunman was central to the case against the appellant; without it there would have been no case to answer. In this regard Mr Jameson submitted that the judge had erred in concluding that the statements of Rafique on the identity of the gunman were capable of being reliable and had also erred in his conclusion that, pursuant to section 116(4), it was in the interest of justice to permit the statements of Rafique to be given in evidence.

In support of his submission that the statements of Rafique were not shown to be potentially safely reliable and/or that it was not in the interests of justice to permit them to be admitted as hearsay evidence, Mr Jameson emphasised a number of matters. First, he noted inconsistencies in Rafique's history of who had involved him in drugs. Rafique had said in his first statement to the police that the appellant's motive for shooting him had been Rafique's refusal to carry on dealing in drugs in the way he had been forced to do by the appellant since Rafique had worked at Tesco's in 2006. However, when Rafique had been interviewed on 12 November 2009 in relation to alleged drug dealing from a car, he had identified a different person, Ansar Hanif Mahmood, as being in the same car, although he also said that he was not working for Mahmood. Rafique had also referred to Ansar Hanif Mahmood in a second interview on 23 November 2009, in which Rafique also linked Ansar to the time that Rafique had worked at Tescos. Rafique said that, in 2009, he still owed Ansar £1000 for drugs, a point referred to in a statement made by Saqya Parveen on 16 February 2011 (for the first trial).

Mr Jameson relied, secondly, on the fact that the police log for 12.33 on 25 September 2010 recorded Rafique as saying that it was Asim (known as "Beastie") who had assaulted him in the car-wash incident and that this was "the same male" that had shot at him the previous day in Summerville Road. Mr Jameson relied, thirdly, on the facts of Rafique's previous convictions as a drug dealer, his mental condition and that he had lied about being beaten up by the police when arrested in 2009 and being sexually assaulted in the Mental Hospital by staff.

Fourthly, Mr Jameson questioned the circumstances in which the statement had been taken from Rafique on 18 July 2011 in which he said that he was terrified to go into court to give evidence. He submitted that, effectively, the police officers had indicated to Rafique that there was a possibility that his statements might be read in court and that they wished to take a statement from him as to why he did not wish to give evidence. Mr Jameson highlighted the fact that in his statement of 18 July 2011, Rafique said that he was very frightened of the appellant and the co-accuseds, whereas Dr Cobb indicated, in his statement following the 26 minute interview with Rafique on 19 July 2011, that Rafique had denied that "any defendant would wish to harm him". Mr Jameson also noted that there had been no report of Rafique having been assaulted in Doncaster prison and there was no evidence to corroborate his allegation to that effect. There had been no investigation as to whether Rafique could have given evidence using "special measures".

Overall, Mr Jameson submitted that the facts relating to Rafique and his statements were most unusual and that, taking into account all the factors, the judge should have concluded that it was not in the interests of justice to admit the statements.

The second ground of appeal advanced is that the judge should not have permitted the prosecution to treat the witnesses Sohail Mohammed and Tauseef Mahmood as hostile. Mr Jameson relied upon the fact that, at the time the judge made his ruling, he appeared to have misunderstood the contents of the statements of each, because he believed that each had identified the appellant as the gunman. In fact they had not. The effect of permitting the witnesses to be treated as hostile, together with the judge's misunderstanding of their statements (which continued through until the summing up) misled the jury into thinking that the witnesses were afraid of the appellant and permitted their statements to be given an unjustified significance.

The third ground of appeal concerns the refusal of the judge to order the prosecution to identify the witness E. As a result, Mr Jameson submitted, the appellant could not know whether he and the witness knew one another. If they were known to each other, then the fact that E did not identify the appellant on the VIPER identification process would have been very helpful to the appellant. Moreover, the procedure surrounding the judge's decision not to order the identification of the witness E was flawed. The judge had not seen the unredacted version of E's statement to the police. He should have made an independent assessment of the position himself, not simply have asked whether there were any changed circumstances which entitled him to "review" the original decision made by Judge Goss.

The fourth ground of appeal is that the judge failed, in his summing up, to identify and enumerate in one place the weaknesses in the hearsay evidence of Rafique and the potential disadvantages to the appellant of the inability to test the statements of Rafique. Thus there was a failure to apply a central part of what the judge himself had regarded as the "counter-balancing" measures that would be put in operation upon admitting Rafique's statements as hearsay evidence.

In opposing the first ground of appeal, Mr Wood for the Crown accepted that the case against the appellant turned on the evidence of identification of him as the gunman and that Rafique's evidence on this topic was "central". He accepted also that before section 116(2)(e) could be invoked, the prosecution had to satisfy the judge to the criminal standard that the witness was afraid and that there was a causative link between his fear and his unwillingness to give evidence at all. Mr Wood submitted that this was amply demonstrated in this case and that it could not be said that the judge's conclusions in this regard were unreasonable. He further submitted that the judge properly directed himself on the question of whether the evidence of Rafique was capable of being reliable and that the judge took account of all relevant matters when considering whether it was in the interests of justice to permit the statements to be adduced as hearsay evidence. Mr Wood noted that the jury acquitted the appellant of two offences said to have been committed at the car-wash incident, thus demonstrating that the jury must have understood the limitations of the hearsay evidence of Rafique.

On ground three, Mr Wood submitted that those parts of the statement of E that were "unhelpful" to the prosecution were set out in agreed facts and put before the jury. Therefore there was no prejudice to the defence in not knowing of the identity of the witness E.

On ground four, Mr Wood accepted that the summing up might have been better organised so far as the issues concerning the hearsay statements of Rafique were concerned. However, he submitted that, overall, the judge gave adequate directions on (a) the approach that the jury should adopt to these hearsay statements, (b) the problems and limitations of the statements and the maker of them, and (c) the inconsistencies in them and with other evidence. He submitted that the judge adequately corrected and dealt with the issue of the references by the witnesses Sohail and Tauseef to "Hanny" and whether that could be the appellant.

We did not call on Mr Wood for argument on ground two.

As a result of the decision of this court and the Supreme Court in R v Horncastle, (Footnote: ²⁶)and the decisions of this court in R v Ibrahim (Footnote: ²⁷)and R v Riat, (Footnote: ²⁸) the framework to be considered to decide whether hearsay evidence should be admitted pursuant to the statutory framework set out in Chapter 2 of Part 11 of the CJA 2003 is clear. When it is sought to admit the hearsay statement because it is said that the witness will not give oral evidence at the trial "through fear", so admission through the "gateway" of section 116(2)(e) is sought, the framework is, broadly, as follows: (1) The "default" position is that hearsay evidence is not admissible. (2) It is a pre-condition to the admission of a hearsay statement that the witness concerned is identified: section 116(1)(b) of the CJA. (3) The necessity to resort to second-hand evidence must be clearly demonstrated. The more central the evidence that is sought to be admitted as hearsay evidence is to the case, the greater the scrutiny that has to be undertaken to see whether or not it should be admitted as hearsay. (4) Although "fear" is to be widely construed in accordance with section 116(3) and, specifically, the fear of a witness does not have to be attributed to the defendant, a court has to be satisfied, to the criminal standard, that the proposed witness will not give evidence (either at all or in connection with the subject matter of the relevant statement) "through fear". Thus a causative link between the fear and the failure or refusal to give evidence must be proved. (5) How it is proved that a witness will not give evidence "through fear" depends upon the background together with the history and circumstances of the particular case. Every effort must be made to get the witness to court to test the issue of his "fear". The witness alleging "fear" may be cross-examined by the defence (if needs be in a voir dire), if necessary using "special measures" to assist the witness. That procedure may be possible but, in certain cases, (Footnote: ²⁹) may not be appropriate. (6) If testing by the defence is properly refused (after consideration) then "it is incumbent on the judge to take responsibility rigorously to test the evidence of fear and to investigate all the possibilities of the witness giving oral evidence in the proceedings". (Footnote: ³⁰) The manner in which that should be done will depend on the circumstances of the case and upon the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. For example, if a court cannot hear from a witness a tape recording or video of an interview on the question of his "fear" should, if possible, be made available. (Footnote: ³¹) The critical thing is that "every effort is made to get the witness to court" (Footnote: ³²). This issue is also linked to (7) and (8) below.

We continue with the framework. (7) In relation to the "gateway" of section 116(2)(e), leave to admit the statement will only be givenif the conditions for passing through a specific "secondary gateway" are satisfied. They are set out in section 116(4). Overall a court will only admit a statement under section 116(2)(e) if it considers that it is "in the interests of justice" to do so. In that respect, the court has to have specific regard to the matters set out in section 116(4)(a) to (c). (8) When a court considers section 116(4)(c), the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension. "A degree of (properly supported) fortitude can legitimately be expected in the fight against crime". (Footnote: ³³) A court must therefore have regard to whether (in an appropriate case), a witness would give evidence if a direction for "special measures" were to be made under section 19 of the Youth and Criminal Justice Act 1999. (9) In this regard it is particularly important that, before the court has ruled on the application to admit under section 116(2)(e), no indication, let alone assurance, is given to a potential witness that his evidence will or may be read if he says he is afraid, because that can only give rise to an expectation that this will, indeed, happen. If it does then the statement will have been admitted on an improper basis; the impact of the evidence will be diminished and that may have further consequences, eg. an application to the judge under section 125 at the end of the prosecution case to stop the case. (Footnote: ³⁴) (10) When a judge considers the "interests of justice" under section 116(4), although he is not obliged to consider all the factors set out in section 114(2)(a) to (i) of the CJA, those factors may be a convenient checklist for him to consider. (11) Once the judge has concluded that the specific gateways in section 116(4) have been satisfied, the court must consider the vital linked questions of (a) the apparent reliability of the evidence sought to be adduced as hearsay and (b) the practicality of the jury testing and assessing its reliability. (Footnote: ³⁵) In this regard section 124 (which permits a wide range of material going to credibility of the witness to be adduced as evidence) is vital. (12) In many cases a judge will not be able to make a decision as to whether to admit an item of hearsay evidence unless he has considered not only the importance of that evidence and its apparent strengths and weaknesses, but also what material is available to help test and assess it, in particular what evidence could be admitted as to the credibility of the witness and the hearsay evidence under section 124. The judge is entitled to expect that "very full" enquires as to witness credibility will have been made if it is the prosecution that wishes to put in the hearsay evidence and if it is the defence, they too must undertake proper checks. (Footnote: ³⁶)

Application of the legal principles to this case

The evidence of Rafique as to the identity of the gunman in the Summerville Road incident was central to the prosecution case on counts 1 and 2 and was of importance in relation to the identity of the attackers at the car-wash incident. With regard to the Summerville Road shooting, Rafique was the only witness unequivocally to identify the appellant as the gunman. Sohail, in his witness statement, identified the gunman as "Hanney", which he said he understood was short for the man's real name of Hanees. In his statement Sohail did not identify "Hanney" or Hanees as being the appellant. At the VIPER parade he said that "the gunman" was not on the parade. (Footnote: ³⁷) Tauseef also referred to "Hanny" in his witness statement and did not relate him to the appellant. He did not identify the appellant at the VIPER procedure, saying that he was "100% sure none of the faces" he saw was that of the gunman. (Footnote: ³⁸) The witness E had not identified the gunman at the VIPER parade; nor did the driver of the Lexus, Wasim Riaz. When Judge Stewart stated, in his ruling on the admission of Rafique's statements as hearsay evidence, that "three of the four witnesses identify in their witness statements the shooter as Shabir", (Footnote: ³⁹) a person whom each recognised, with respect he erred.

We were informed that the issue of whether Rafique would not give evidence "through fear" was very much a live issue before the judge. However, although the judge reached a very firm conclusion that Rafique was "terrified of giving evidence" and that this fear was caused by the appellant and his associates, we have, with respect, concerns about the process leading to this conclusion. First, it is clear from the judge's record of the events "in the cell" before Rafique gave his statement of 18 July 2011 that DC O'Keefe told Rafique that he had come to see him to ascertain his state of mind as to giving evidence and that his original statement "may be read out". This was a clear "indication" to Rafique that he may not have to give oral evidence. This court specifically warned against that being done in Horncastle at [87]. Such an indication generally undermines an argument that the refusal to give evidence is "through fear" rather than because of what the witness has been told. It would, therefore, undermine the basis for admitting hearsay evidence under section 116(2)(e). Secondly, there is no evidence that any further attempt was made to get Rafique into court to give evidence on a voir dire on the issue of giving evidence, either in person or by a video link, even though it is clear from Dr Cobb's statement of 19 July that Rafique was present at Bradford Crown Court that day. Thirdly, there is no evidence that there was any attempt to try and persuade Rafique to give his substantive evidence using "special measures". There is no reference to that either in his statement of 18 July 2011 nor in the evidence of DC O'Keefe and DC Oxley nor in that of Dr Cobb on the voir dire. There is no suggestion in the judge's ruling that he enquired about this issue. Fourthly, although Rafique states in his 18 July 2011 statement that he is afraid of the appellant and the two co-accuseds, Dr Cobb records in his statement of 19 July 2011 that Rafique "denied that any defendant would wish to harm him". This was not appear to have been investigated. Fifthly, there appears to have been no attempt to verify Rafique's allegation that he had been physically attacked three times in Doncaster prison, with the implication that these attacks were connected with his impending evidence at the second trial. No reports from prison officers or a doctor were apparently obtained. Indeed, DC O'Keefe's evidence on the voir dire was that there was no record at the prison of any complaints. (Footnote: ⁴⁰) Dr Cobb said that if he were to be persuaded that Rafique had not been assaulted he would have to "reassess", which we take to mean reassess his view on whether Rafique was a reliable source of information. As Rafique did not give evidence on the voir dire, he could not be questioned on this issue.

Effectively, therefore, the decision that Rafique would not give evidence "through fear" was itself taken largely on hearsay evidence. It was done so on the basis of the judge's reading of the transcripts of the first trial (in which on the first day of his evidence Rafique had denied he was frightened by the appellant and on second day of his evidence, Rafique had denied he was frightened of the gunman after the shooting incident), Rafique's statement of 18 July 2011, the police officers' account of Rafique's attitude to giving evidence and Dr Cobb's account of what Rafique told him. This was all in circumstances where Rafique was known to suffer from paranoid schizophrenia and had a record of lying. Whilst we accept that there was much evidence that Rafique was "afraid" of the appellant and co-accuseds, his fear may well have been the result of his own paranoia. If necessary we would have concluded, reluctantly, that, in all the circumstances, the judge did not discharge his responsibility "rigorously to test the evidence of fear and to investigate all possibilities of the witness giving oral evidence in the proceedings". (Footnote: ⁴¹)

However, we have also concluded, again with reluctance, that the judge erred in his consideration of whether Rafique's two statements should be admitted "in the interest of justice", in accordance with section 116(4). First, and most importantly, the judge appeared to believe that Rafique's evidence on identification of the gunman was only one of three positive identifications, whereas, in fact, Rafique's identification of the appellant was the only full one. This meant that it was crucial for the judge to test rigorously whether his statements, particularly on this issue, were shown to be potentially safely reliable. (Footnote: ⁴²) We have considerable doubts that they were.

Secondly, Rafique had a history of mental illness, having been diagnosed with paranoid schizophrenia in 2010. Dr Cobb considered he was still paranoid and apparently delusional. He also had previous convictions and he was a drug user. Those facts throw doubt on whether the statements were potentially safely reliable, although we accept that they are by no means conclusive in any particular case. (Footnote: ⁴³) Fourthly, Rafique had given accounts of events in 2009 when he was arrested which were contrary to police statements of events. He had at that time identified Ansar Hanif Mahmood, not the appellant, as the person who had driven him into drug dealing. Fifthly, his identification in his first statement of the appellant as the gunman was contrary to the note in the police log (at about 12.30 on 25 September) that Rafique had said that Asim was present at the car-wash incident and that he was the same person who had shot at him in Summerville Road. Lastly, Rafique was still giving contradictory accounts of whether he stood by his original witness statements. He had said in his statement to DC O'Keefe that they were true, but he had told Dr Cobb that "they've got the wrong people".

We accept that there was evidence that was capable of supporting of Rafique's identification of the appellant at the Summerville Road incident: the incident at the car rental (on CCTV and witnesses) earlier on 24 September 2010 and the evidence of hostility and threats to Rafique by the appellant on that occasion; and the car-wash incident itself. The ammunition in the Golf was of limited assistance as there was no DNA, fingerprint or other connection between the unfired cartridge recovered and the appellant.

Overall, in our judgment, it cannot be shown that the untested hearsay evidence of Rafique on the central issue of the identify of the appellant as the gunman in the Summerville Road incident was potentially safely reliable. Moreover, as this court pointed out in Riat (Footnote: ⁴⁴) a judge will often not be able to make the decision as to whether the hearsay evidence be admitted unless he first considers not only its strengths and weaknesses but, in addition, what material is available to help test and assess it. Of course, evidence on the credibility of Rafique and his evidence could be admitted under section 124, but that pre-supposes that it would be right to admit the hearsay evidence in the first place. There were very few other countervailing measures that could be taken to safeguard the interests of the accused. The judge could, and did, give directions to the jury about the dangers of relying on untested evidence and he could, and he did give directions on the strength and weaknesses of that evidence. But again that pre-supposes that it was correct to admit the evidence in the first place. There were no other countervailing measures that could be taken in this case by which Rafique's untested hearsay evidence on the identification of the appellant could, effectively, be assessed.

Accordingly, our conclusion at the end of the hearing on 16 October 2012 was that, with respect, the judge erred in ruling that the two statements of Rafique could be admitted pursuant to section 116(2)(e). In summary, we were not satisfied that the proper procedure had been followed; or that it had been proved to the criminal standard that Rafique would not give evidence (at all) "through fear", or that it was in "the interests of justice" to admit the evidence in the circumstances of this case. Whether the result is put in terms of a breach of Article 6(1) or 6(3)(d) of the ECHR, (Footnote: ⁴⁵) or simply in terms of section 2(1)(a) of the Criminal Appeal Act 1968, either way the convictions on counts 1,2 and 3 were unsafe. Therefore we allowed the appeal on ground one.

We do not need to go into detail on the other grounds. However, we will record, without giving further reasons, that we would have dismissed the appeal on grounds two and four.

We did have some concerns regarding ground three. However, as we did not have full argument on this ground because the unredacted statement of E was not available to us at the time of the appeal hearing , we prefer to make no further comments about the issues raised on this ground.

For the reasons given above, we allowed the appeal on ground one. We therefore quashed the convictions on counts 1, 2 and 3. We granted an application for a retrial of the appellant on those counts. We also ordered that there be reporting restrictions in the meantime.