Amin, R. v

On 5 December 2013 in the Crown Court at Southwark the appellant, Dana Mohammed Amin, now aged 30, was convicted by a jury of the common law offences of perverting the course of justice (count 1) and preventing a public burial (count 2). On 6 December 2013 he was sentenced by the trial judge, His Honour Judge Beddoe QC, to 8 years' imprisonment on count 1 and to a concurrent term of 5 years' imprisonment on count 2. Before this court he appeals against conviction by the leave of the single judge and he renews his application for leave to appeal against sentence following refusal by the single judge.

The sole issue on the appeal against conviction is the submission that the judge should not have admitted evidence relating to four conversations that were covertly recorded when two of the applicant's co-participants in this overall offending (that included the murder of the deceased) had prison visits. Whilst making admissions as regards their own involvement in the murder, they implicated the appellant in the offences with which he was charged, as set out above. The appellant was not present during the relevant conversations.

On 28 April 2006, the body of 20-year-old Banaz Mahmod, an Iraqi Kurd, was found buried in a suitcase in the back garden of a house at 86 Alexandra Road in Birmingham. A bootlace had been used as a ligature. She was identified from her dental records. She had gone missing from her home address on 24 January 2006. Her father Mahmod Babakir Mahmod, and her uncle Ari Mahmod Babakir Aga (“Ari”), were subsequently convicted of her murder on 11 June 2007, the motive being (to use the highly inappropriate expression that still has currency for murders of this kind) an "honour killing" because they did not approve of her relationship with a man by the name of Rahmat Sulemani. A close friend of Ari, Mohammed Hama, pleaded guilty to the murder. Another relative, Mohammed Ali (“Ali”), had been convicted of the murder in 2010 after being extradited from Iraq.

The prosecution allegation was that the appellant, a nephew of Ari and Mahmod Babakir Mahmod, was involved in the disposal of her body. There were a number of different strands to the Crown's case. First, reliance was placed on cell site evidence that was said to be suggestive of the appellant having been present at a meeting the night before the murder. He had travelled, it was said, to Birmingham on the evening of the day Banaz Mahmod was killed and the following day he was near the place where the body was later found. Second, he made a withdrawal of cash from an ATM machine in Birmingham about a mile from the burial site. Third, he returned to London the following day. Fourth, forensic evidence (fibres) linked the appellant's vehicle to the suitcase in which the body was buried. Finally, the prosecution introduced the covert recordings of conversations that were made during prison visits, to which we have already referred.

The appellant denied the suggestion that he had been in Birmingham at the relevant time. Instead, he claimed he had lent his car to his cousin, Hassan Mahmod, to go to Newcastle and that he had lent a telephone, the number of which ended 499, to a man called Beiz Hama (“Hama”), who he suggested had been in contact with his wife. He alleged the transcriptions of the covert recordings were inaccurate or had been misrepresented. He denied making a withdrawal from an ATM machine in Birmingham at the relevant time using his bankcard.

On 1 December 2005, Banaz and Sulemani, who were not married, had been seen kissing, and a photograph was taken of them in each other's company. There was a meeting at Ari's home, attended by Hama and Ali, at which it was decided they were to be killed. Ari told the deceased by telephone that she had brought shame on her family because she had separated from her husband and that he intended to kill her. On 5 December 2005 the deceased delivered a letter to the police in which she named five men who she believed planned to kill her.

On New Year's Eve, Banaz was taken to hospital with a number of cuts to her wrists. She had told the ambulance staff that her father and uncle were trying to kill her. On 2 January 2006 her parents had tried to persuade her to return home, promising that she would not be harmed. She agreed to do so but remained in secret contact with Sulemani. On 22 January 2006 there was a failed attempt by Hama, Omar Aga, Ali and a fourth man to kidnap Sulemani. As a result, Banaz went to the police on the following day.

On 4 January 2006 Hama hired a blue Ford Focus because his own car was damaged. He was unaware that the vehicle was fitted with a tracking device. On 23 January 2006 the vehicle was recorded as being in Northbourne Road in Brixton where Ari lives. Cell site evidence relating to telephones belonging to Ali, Hama and Omar Hussain placed them in the area of his address at about 7.00 pm. Cell site evidence of the appellant's phone was consistent with him moving from Ari's business premises in Wandsworth to Northbourne Road, and these four telephones were in the same area between 7.04 pm and 7.47 pm. The appellant's phone was not used after 7.00 pm that evening. It was the prosecution's allegation that the purpose of this meeting was to discuss the murder and disposal of Banaz.

The telephone belonging to Banaz was last used on 24 January 2006 at 12.05 am. Sulemani reported her missing on 25 January, against her parents' wishes.

Cell site evidence showed that Ari, Hama, Omar and Ali were all in contact in the vicinity of Banaz's home. Ari was caught on CCTV footage driving to her address and thereafter driving away from it. The prosecution case on the murder was that this combination of evidence showed the timing of her death to have been between 8.45 am and 10 am. Hussain left London for Birmingham at about 1.00 pm. He lived in Birmingham at an address about a mile from where Banaz's body was found. Hama's hire vehicle travelled to Wandsworth Road where it was left overnight. Cell site evidence was consistent with telephones attributable to the appellant, Hama and Ali driving to Birmingham, leaving London at about 6.30 pm and arriving at 8.15 pm in the area of Messenger Road.

Cell site data also indicated that the appellant, Hama, Omar Hussain and Ali were in the Messenger/Alexandra Road area during the evening of 24 January and during the following day. At 4.57 pm on 25 January the appellant's bankcard, as we have already indicated, was used to make a withdrawal in the Smethwick branch of Barclays in Birmingham, about a mile from the burial site. Cell site evidence was consistent with the appellant, Hama and Ali returning to London together and arriving at about 8.15 pm.

Following his return to London, other than contact with his wife, the first telephone call on the appellant's telephone was with Ari on 26 January 2006. The user of the telephone travelled to the vicinity of Banaz's home address where her father lived and to Ari's address. The prosecution case was that this trip was in order to discuss the earlier visit to Birmingham when the body was buried.

Evidence was adduced from the appellant's wife that, so far as she was concerned, the only person she was in contact with in January on the 499 telephone was the appellant. Therefore, she disputed the appellant's contention that his telephone had been with Beiz Hama at the relevant time and that Hama had been in contact with his wife. The prosecution adduced expert evidence to the effect that an analysis of the data relating to this telephone did not bear out the suggestion that it had been in the possession of someone other than the appellant during the relevant period, given the pattern and the frequency of the telephone calls.

The home of the appellant's cousin at 11 Dorset Road, Wimbledon was searched in the appellant's presence. The appellant volunteered that he had a vehicle parked in the street nearby, a black Lexus, and he asked the officers if they wished to search it. Inside the boot there were three black bin bags containing hair products and clothing. Nothing of interest was found at that stage.

On a 28 January 2006, the appellant made a statement to the effect that he was unaware that Banaz had gone missing. He said he had last seen her six months earlier. He indicated that normally he lived with his wife at an address in Croydon. He gave his mobile telephone number ending 499, and he said his occupation was as a barber and that he worked in New Addington.

On 6 April 2006 the appellant was arrested at an address in Wandsworth. His telephone, ending with the 499 number, was seized. The appellant said that he had had it for six or seven months. The key and the logbook of the Lexus vehicle were also taken.

The appellant was interviewed under caution. He stated that he had been using the 499 telephone in January 2006 and that he had only lent it for about 20 minutes to a relative. He said that he had purchased the Lexus in January. He indicated that although he knew Omar, Ari and Hama, he had never heard of Ali and had never called him. His account was that he had been in New Addington on 23 and 24 January 2006. He said he had not loaned the Lexus to anyone, except perhaps his cousin Hassan for 30 minutes, and the car had never been out of London. When he was shown the call log relating to the 499 telephone and the contact between that telephone and Ali, he said that it was impossible that these calls had occurred. He denied going to Birmingham in January or contacting Ali whilst he was there.

He was interviewed again on 30 April 2006, the day after the discovery of the body. He denied visiting Birmingham that year and said that he was last in that city in September or October 2005. At this stage he said that he had lent his 499 telephone to his relative, Beiz Hama, for two weeks in January 2006, sometime between 12 and 26 January 2006. Hama, he suggested, had gone to Iraq and the appellant in consequence had no contact details for him. He also said that he had lent his Lexus motorcar to Hassan Mahmod for 24 hours in January because Hassan was travelling to Newcastle. He could not explain how his telephone or his bankcard came to be in Birmingham on the day the body was taken there. He suggested the call to Ali might have been a mistake; for instance, a wrong number may have been dialled leading to a response from that number.

The appellant was interviewed yet again on 8 September 2006. He indicated that he had loaned his telephone ending 499 to Beiz Hama, who he said did not speak English. He indicated his wife did not know Hama. When told of the particular text message sent to that telephone, he suggested that his wife might have been having an affair with Hama. The prosecution relied on the fact that several text messages during this period were sent from the 499 telephone to the appellant's wife in English in support of the contention that the appellant had had the telephone with him throughout this period. The appellant's wife also stated that she only ever spoke to the appellant on the 499 telephone and that no one else had contacted her using that telephone.

On 13 July 2010 the appellant was circulated as wanted on the Police National Computer. On 20 June 2013 he was arrested at the passport office at London Victoria. In interview on 21 June 2013 he declined to answer any questions put to him.

Whilst on remand, Ari and Mohammed Amin received a number of prison visitors, including the appellant. The conversations were secretly recorded. The prosecution relied in evidence on the following recordings. First, for 20 August 2006 when the appellant was visiting Ari. It was the prosecution case that during this conversation the appellant admitted that they had used his car on the night, and there was a reference to the appellant returning from Birmingham that night. Second, on 18 September 2006, another occasion when the appellant was visiting Ari Mahmod. During this meeting the prosecution alleges the appellant admitted withdrawing a small amount of cash from a bank, albeit he indicated during this conversation that he had denied to the police that he was responsible for the withdrawal.

There were then comments by Ari and Hama that they made to other visitors in the absence of the appellant, during which Ari and Hama admitted complicity in the killing. First, on 13 March 2006, Hama indicated that the appellant ("Dana" and "Dana Mohammed") had driven "it" (the car) to Birmingham, at which juncture Hama had taken Dana's car from him. Second, on 20 April 2006, when Hama again discussed having driven in the appellant's car at the relevant time, and he indicated that if "they" (no doubt meaning the police) seized Dana's car it would be bad for Hama. Third, on 4 July 2006, when Ari suggested how helpful the appellant had been because "it had to be finished by the evening of that day", and there was reference to the relevant barbershop. Finally, on 11 September 2006 when Ari stated that the appellant's car had been outside the relevant address when the deceased was thrown into a suitcase.

We emphasise that the relevant parts of the transcripts were before the jury so that they could decide whether the prosecution's submissions as to the meaning of these exchanges were well founded. However, in our view, having considered these passages with some considerable care, the import of what was being said was clear, notwithstanding Mr Wainwright's suggestion, which is properly made, that there were potentially other plausible explanations. Furthermore, it is to be noted that Ari and Hama both had a very significant role as regards what happened to the deceased and that role was the subject of agreement during the course of this appellant's trial.

The Lexus was examined on 12 April 2006. Two fibres, microscopically indistinguishable from the suitcase fibres, were found in the boot of the appellant's vehicle. Tests resulted in a match as regards colour and dye characteristics. However, it was conceded that this evidence, standing alone, was inconclusive as to whether or not the suitcase had been in the Lexus motorcar.

The prosecution, as we have already indicated, applied to introduce the four covert recordings that had been made in prison when two of the appellant's co-accused had visits (in the absence of the appellant) and when they made admissions as regards their own involvement and they implicated the appellant in the offences with which he was later charged.

The judge was satisfied that the four recordings were admissible under section 114(1)(d) of the Criminal Justice Act 2003. The judge considered, inter alia, all of the matters in section 114(2). He concluded that the statements were highly probative and went to the heart of the issue between the prosecution and the defence, namely the extent of the appellant's role in the concealment of the murder and the disposal of the body. The cell site analysis and the car tracking data corroborated the content of the prison visit recordings relating to the appellant's presence in Birmingham and the use of his vehicle. Each of the recordings had been made covertly, and thus none of those speaking knew that what they had said might later be used against them. Ari and Hama made numerous self-incriminatory comments in circumstances suggesting that the statements were not being falsified in order to incriminate the appellant or for any other purpose.

The judge rejected the submission made on behalf of the appellant that Amin and Ari were seeking to distance themselves from the offences, on the basis that the argument was not supported by any reasonable analysis of the content. There were clear admissions of their participation in some of the events leading to the death. Ari had expressed pride in his behaviour and his hostility to Sulemani, who had survived. The speakers seemingly provided a clear and reliable source of information about the arrangements surrounding the murder of Banaz and the disposal of her body. Hama had pleaded guilty and Ari was convicted after a trial, no doubt in part because of the content of these recordings. The judge noted that the integrity of the recordings had not been challenged, either as to the quality of the original or as to the translation. The judge considered it unrealistic for the Crown to adduce oral evidence from either of the men, and that if they were called it was reasonable to suppose that they would be hostile.

The judge noted it was open to the appellant to give evidence about what he accepted or did not accept of the recordings and his understanding of the motive as to why untrue statements had been made, if that was his contention. The appellant would also, in the judge's view, be protected by the directions that would be given to the jury as to the need for caution as regards this evidence. The conversations were only part of the prosecution case against the appellant, as rehearsed above.

The judge concluded the evidence of the recordings was probative, relevant and reliable, notwithstanding the prejudice to the appellant that was inherent in what had been said. He was of the view that the interests of justice were served by its admission into evidence.

The judge gave the jury full directions as to how to approach these four conversations, and it is necessary to set out those directions in full. We note, however, that there is no complaint as to how this issue was left to the jury.

These directions were, in our view, entirely appropriate and they ensured that the jury approached this evidence with suitable caution.

In succinct, focussed and forceful submissions, Mr Wainwright for the appellant argues, first, that the judge failed properly to consider the risk that Ari and Hama were mistaken about the appellant's role, given a number of individuals played different parts in the murder and in the events that followed. It is suggested there was uncertainty as to whether they had personal knowledge of the appellant's true part in this offence, if any, and there was a risk they were trying to blame the appellant in order to protect some unidentified individual. It is submitted that in this case the possibility of an unidentified hostile motive was a factor of real significance.

It is suggested that the force of the other evidence in the case was dependent on the jury drawing inferences from what was circumstantial evidence, and that this hearsay evidence was the only material that directly implicated the appellant. Therefore, it is argued that it was highly prejudicial that the appellant was not able to cross-examine the individuals who made these statements. Mr Wainwright stressed it was irrelevant that the evidence of these conversations may have been tested in another trial: what matters is whether it was tested in the present case. Finally, it is argued that the Crown should have attempted to call Ari and Hama to give evidence.

We have no doubt that this evidence was properly admitted. The judge gave a careful and detailed ruling in which he considered all of the relevant issues. As to the factors to which the court must have regard under section 114(2) of the Criminal Justice Act 2003, along with anything else considered to be relevant, this was potentially highly probative evidence which was of real value for the understanding of the other evidence in the case (114(2)(a)). There was a significant body of other evidence which implicated the appellant, summarised above (114(2)(b)). Therefore, although this evidence did not in any sense stand alone, it substantively supported the prosecution's case (114(2)(c)). The statements were made in circumstances where Ari and Hama did not realise they were being overheard (given they boasted extensively about their roles in the murder and the disposal of the body) and these statements were made in the course of admissions as to their own participation (114(2)(d)). It follows that Ari and Hama can properly be considered to be reliable on the issues about which they were speaking in this regard, since there was no sustainable reason for them to lie about the account they were providing during this part of the transcripts (114(2)(e)). For the same reason, the evidence appears reliable (114(2)(f)). It was wholly implausible, in our view, to suggest that Ari and Hama would have been prepared to co-operate with a prosecution which was directed at securing a conviction of one of their former confederates, and we note that the defence made no attempt to call either man (114(2)(g)). Notwithstanding the absence of Ari and Hama as witnesses – thereby denying the appellant the opportunity to investigate the accuracy and honesty of what they had said during these covert recordings – their account of the appellant's involvement (viz. that he drove to Birmingham) involved an assertion which he was able to confront when he gave evidence and, more generally, during the presentation of his defence (114(2)(h)). The record of these conversations was clearly prejudicial, but it simply added to the weight of the other evidence in the case rather than providing the sole or indeed the main evidence against the appellant; it formed part of a much broader picture (114(2)(i)).

We are unpersuaded that the judge failed properly to consider the risk that Ari and Hama may have been mistaken, therefore, about the appellant's role given that they would undoubtedly have known who drove to Birmingham. For example, Hama took the car from the appellant once they had arrived in that city. Similarly, given the content of these conversations, it is unrealistic to suppose that they may have been uncertain about the appellant's part in this offence. Ari is the appellant's uncle and they enjoyed a good relationship, and in those circumstances there does not appear to be any credible risk of an attempt having been made to blame the appellant in order to protect some other unidentified individual. Certainly, no one has been suggested as a realistic possible candidate in this context. The suggestion of a secret hostile motive therefore appears to be without any real or identifiable foundation. It is to be noted that this hearsay evidence was in addition to the admissions made by the appellant during the August and September 2006 conversations, as to which there is no complaint as regards admissibility.

It is clear from R v Y [2008] 1 Cr App R 34; [2008] EWCA Crim 10 that evidence of this kind - hearsay evidence which involves a confession by another individual whilst simultaneously implicating the defendant who is on trial - is potentially admissible in the interests of justice (section 114(1)(d) Criminal Justice Act 2003). That case concerned a statement by the girlfriend of the defendant's confederate, X, in which she asserted that X had confessed to the offence in that case (murder) and had implicated the defendant in the killing. We note that in R v Y, this evidence was the main or determinative material in the case.

It is clear from that authority that generally in these circumstances the judge must reflect on the very real disadvantages of hearsay evidence: it is second best evidence that can be difficult to test and assess given the jury will not see the making of the statement. Furthermore, in the course of the judgment the court emphasised that the judge must consider with care the circumstances in which the statement was made and evaluate the risk that the maker of the statement is unreliable or may have acted for improper motives or a false incentive, such as self-interest or a desire to protect someone else. In a similar vein, sometimes it will be significant that the individual may have a hidden motive to lie, or it will be significant that the possibility of a mistake having been made cannot be adequately explored. The difference between an admission against interest and an accusation against someone else may additionally be of importance.

In R v Y, it was expressly recognised that:

In our judgment, this was such a case, particularly given the evidence incriminating the defendant was inextricably linked to the confessions that were being made by Ari and Hama. We are confident for all the reasons set out above that it was in the interests of justice for the judge to admit the evidence of these four conversations. Although we understand the concerns of the single judge in granting leave, on analysis we are confident that these convictions are safe and the appeal against conviction is dismissed.

In passing sentence, the judge indicated he was quite satisfied that the appellant was one of the members of the family who had known that this young woman (who was a cousin of the appellant) and the man with whom she had been having a relationship were to be murdered and he was aware of the previous attempt on her life. The judge was also satisfied that the appellant had been present at a meeting on the evening of 23 January with those who were to murder her the following morning.

The appellant had taken no steps to prevent what later occurred, although he was not a party to the murder. He had answered a call to help with the concealment and disposal of the body in order to prevent those responsible from being brought to justice. He had subscribed at the time, and eight years later continued to subscribe, to a perverted code that found dishonour in the idea that a grown woman should lead a life that she had chosen for herself rather than one set for her by senior members of her family.

The judge observed the appellant had driven the victim, stuffed in the suitcase in which she was to be buried, to Birmingham in the boot of his car. On that basis, it did not matter whether he was involved in the final disposal. When he returned to London, he did his best to mislead the police and to prevent the body being found, including in the accounts which he provided to the police.

The judge concluded that in cases of this kind the sentence was largely dependent on the facts of the particular case. The appellant was of good character, but for an offence such as this and in circumstances such as these that counted for little. He had shown no remorse. The murder had been a terrible crime, and the judge determined that the fact that the appellant had known of it and his behaviour following the offence were both aggravating features.

In support of this application, it is argued that the sentence is manifestly excessive in that the judge imposed too high a starting point and he failed to take any or sufficient account of the delay between the offence and the date of sentencing. Mr Wainwright argues that R v Lang [2002] 2 Cr App R (S) 15; [2001] EWCA Crim 2690 supports the proposition that in a case involving the disposal of a body when the deceased was shot, the starting point for the offence of perverting the course of public justice following a trial is seemingly between 7 and 8 years. It is suggested that if the murder in question attracts a minimum term below the 30-year bracket, the sentence for perverting the course of justice should consistently be less than the 7- to 8-year bracket that he has identified.

With respect to Mr Wainwright, this argument, in our view, is unsustainable. R v Lang was decided before the present regime relating to the minimum term to be imposed for cases of murder was established by the Criminal Justice Act 2003. Furthermore, the court in R v Lang focused on the circumstances of the offence the appellant faced, rather than on the relationship between the sentencing regime applicable to the underlying offence of murder and the sentence to be imposed for perverting the course of justice. In R v Lang, the greater part of the appellant's motivation for digging the grave had been his fear of his uncle. No such considerations apply in this case.

Furthermore, the argument on delay is, on analysis, unpersuasive. The evidence against the appellant was not available in 2007 when Hama and Ari were tried, and there is evidence that the appellant left the jurisdiction, albeit he returned, and he deliberately took steps to evade the police. He showed no remorse, as we have already indicated, and he made a misleading witness statement which contributed to the delay in finding the body.

In refusing leave, the single judge observed:

We agree. This renewed application is refused.