R v Zaheer Shah

On 15 March 2024, the appellant was convicted of rape (count 1) and assault occasioning actual bodily harm (count 2) by a jury at Leicester Crown Court. He was acquitted of a single count of intentional strangulation (count 3). On the same day he was sentenced by the trial judge, HHJ Ebraham Mooncey, to 15 years imprisonment on count 1 and 18 months imprisonment on count 2, concurrent.

He appeals against conviction by limited leave of the single judge on the single ground that the trial judge was wrong to admit certain evidence of bad character, in the form of text messages between the appellant and various prostitutes in the days preceding the index events.

We dismissed the appeal at the hearing, with reasons to follow. These are our reasons.

On the night of 3 and 4 March 2023, the complainant had been drinking alcohol at various establishments with friends, ending the evening at the Firebug nightclub. She was intoxicated when she left in the early hours of 4 March 2023. She had no recollection of how she came to be in a car being driven by the appellant. She said that whilst in the car she was physically and sexually assaulted by him. When the car stopped, she was able to open the door and get out, taking her bag but not her mobile phone with her. She sustained a number of injuries during the assault and in her escape from the car.

The prosecution case was that the appellant had driven around the streets of Leicester frequenting locations where he knew he might find sex workers. He had a sexual intent in mind. He had been captured on CCTV slowing down to speak to two street sex workers. As the nightclubs were closing the Appellant had driven around looking for lone females. Earlier that night he had picked up another female who needed a lift home. He subsequently made phone contact with that person in whom he showed a sexual interest, but she had blocked him on her phone; nothing untoward happened with her.

The appellant had seen the complainant coming out of the nightclub. She appeared unstable on her feet and drove towards her. He had invited her into his car and she had got in, believing he was an Uber, and asked to be taken home. He drove off quickly before stopping. He did not take her home but drove to a quiet spot where he stopped his car. He sexually and physically assaulted her over the course of 35 minutes. Then she escaped.

To prove the case, the prosecution relied on the following key strands of evidence:

The appellant was interviewed twice on 4 and 5 March 2023. During those interviews he gave a full account and denied any sexual activity. He stated that the complainant had at one point said that she liked to be raped, and that she had tried to kiss him and perform oral sex, but he had pushed her away and tried to eject her from his car. He told the police that the complainant had vomited over his clothing and that he had disposed of his clothing in a wheelie bin outside his house.

The defence case wasdenial. The appellant accepted that the complainant had got into his car, but said that no sexual activity had taken place.

The appellant gave evidence during his trial in similar terms as his police interview. He said he had been driving around Leicester, listening to music and re-organising his life in his head. He denied any interest in street sex workers saying that the messages on his phone related to home-based sex workers. He denied any penetration and said that his penis had remained in his trousers throughout. He accepted that the complainant had injuries, but said that they had been self-inflicted or caused accidentally when she was restrained or when he was trying to eject her from his car. He said that the complainant had got into his car uninvited; he said that she had demanded to be taken home which he reluctantly agreed to do when she refused to get out of his car. As he started to drive, she began to remove her clothes and made sexual advances towards him, attempting to kiss him and perform oral sex on him. He asked her to leave his car and tried to push her away and out of the car. He told her to put her clothes on. She started to hit and punch herself telling him that she wanted to die and to kill her. When the car door opened, she fell out, heavily intoxicated, and caused the injuries to her knees. He had not raped her, assaulted her, or exposed his penis. He was not looking for sexual gratification that night.

He was asked about the phone messages in evidence. In two or three messages he referred to rape. He said that those messages were to sex workers and that ‘rape’ meant ‘rough sex, hard and fast’. He stated that he would not rape anyone. Reference to him being raped meant the same. He explained the various abbreviations on his phone relating to sexual activity.

The issue for the jury was whether the appellant had penetrated the complainant’s mouth with his penis and whether he had caused her injuries intentionally or accidentally when he had tried to remove her from his car, or whether they had been self-inflicted by the complainant.

Counsel for the prosecution applied to adduce the messages recovered from the appellant’s phone. A bad character notice dated 14 August 2023 was served. Although there was some lack of clarity in that application as to whether the messages amounted to bad character at all (or had to do with the alleged facts of the offence in which case they would not be bad character, see section 98(a) of the Criminal Justice Act 2003), we were told that the judge gave an early indication that he was intending to treat all this material as bad character, a position the prosecution accepted. The prosecution’s case was that these messages were relevant to an important matter in issue between the appellant and the prosecution and were admissible under section 101(1)(d) of the Criminal Justice Act 2003. Further, the prosecution argued that the evidence established propensity by the appellant to rape the complainant. Those submissions were developed at an oral hearing before the judge, at which the prosecution case in relation to the messages and their relevance was finessed.

Defence counsel objected to the messages going in as evidence. He argued, in a notice of objection dated 11 March 2024 and in supporting oral submissions that the messages recovered from the appellant’s phone relating to his contact with escorts, his penchant for oral sex and interest in specific unusual sexual practices did not establish a propensity for the conduct alleged against the complainant. The material in issue related to prostitution. There was no evidence that the complainant was or ever had been a sex worker, or that the appellant believed that she was. There would be payment for services to a sex worker and any transaction would be consensual whereas the conduct alleged was non-consensual. The prejudicial effect of the phone material outweighed the probative value. None of the phone evidence related to the offending; it was not recent and should not be admitted.

The Judge ruled that the text messages were admissible as evidence. He gave two reasons for that conclusion. First, he said that:

“Whilst arguably this case could proceed without reference to his previous conversations with prostitutes on the basis of financial aspects being absent, that would be to ignore the content of those conversations and the unusual sexual practices he is interested in, the use of force that is mentioned and so forth. They are arguably specifically related to what is being alleged here: forceful oral sex with a stranger. Even if one were to reject that, the issue of propensity is a live one and applicable in my view in the circumstances of this case.”

Secondly, he said that:

“The p’s case that on the night he has sexual matters on his mind and that is shown by his conduct of driving around repeatedly for no apparent reason; showing interest in street walkers; picking up 2 lone females etc. are supported by the content of his telephone as to what his general mind-set was. It is a matter on which the jury will have directions on as to how to approach the issue. A fair trial requires this evidence to be part and parcel of it.”

The judge did not think the introduction of this evidence would have such an adverse effect on fairness that it should be excluded. He granted the prosecution’s application.

The messages were put before the jury in various forms. Some screenshots were put before the jury, including two where the word rape was used (one of which referred to urinating and defecating on a person after rape) and one where the appellant invited a prostitute to “act dead” which the prosecution suggested was another reference to rape. The Officer in the Case produced a schedule containing extracts of the messages. There were agreed facts which summarised the position: 3,064 messages were recovered including 962 messages sent to 84 sex workers between 2 February and 1 March 2023 (the latter date being around 4 days before the index events).

The appellant was asked about these messages when he gave evidence, and explained that he did sometimes visit prostitutes in their own homes but he did not use his own car for sex with prostitutes. He paid the prostitutes for their services. But the appellant said he was not looking for a prostitute that night.

In his summing up, the judge reminded the jury of the prosecution’s and the defence’s cases on the text messages. He directed the jury as follows:

“If you are sure the defendant's communications with prostitutes establishes a tendency to commit rape, you could treat his text communication as some support for the prosecution's case. However, this could only be part of the evidence against the defendant, and you must not convict him wholly or mainly on the strength of it. If you are not sure the defendant had such a tendency, then his conduct in communicating with sex workers about rape, could not support the prosecution's case against him in relation to the rape. You should then disregard it.”

By grounds of appeal settled by the appellant’s trial counsel, the appellant argues that the judge wrongly allowed the bad character evidence to be adduced by the prosecution rendering the conviction on the offence of rape unsafe. (A second ground was rejected by the single judge and no application to renew is now made.)

The appellant was represented on this appeal by Mr Max Baines, appointed by the Registrar of Criminal Appeals in circumstances where the appellant had dispensed with the services of his legal team and lacked legal representation.

Mr Baines submitted that the judge was wrong to admit the messages as evidence. Those messages were between the appellant and sex workers; and they related to consensual sexual activity, which was entirely different from the allegation of rape involved in the trial. Further, the references to rape and degrading behaviour (most notably in the form of an interest in urination and defecation as part of sexual activity) had nothing to do with this case and were highly prejudicial. Further and in any event, the messages were about the appellant’s fantasies and in no way demonstrated a propensity to do the acts discussed (such as rape); at most these were requests to sex workers to agree to a form of (consensual) sexual activity as part of a role play. Any link to the conduct alleged by the prosecution was at best tenuous and on any view insufficient.

Alternatively, if the material was relevant, it was highly prejudicial and should have been excluded for that reason.

Further, the judge failed to specify the propensity to which these messages were relevant and appeared to direct the jury that the messages could demonstrate propensity to rape, which was far too much of a stretch and unfair to the appellant.

The prosecution lodged a Respondent’s Notice and Grounds of Opposition to this appeal. Ms Rose appeared at trial and in this Court. She submitted that the judge was right to admit these messages as bad character through the section 101(1)(d) gateway because they were relevant to an important matter in the case, namely whether the appellant raped the complainant. Specifically, they were relevant in two ways: first, to rebut the appellant’s case that he was just having “me time” that evening as he drove around; the messages were strongly supportive of the prosecution’s case that he was looking for sex that evening, driving his black Jaguar car as he explained he did in the messages when he was looking for paid sex. The second and connected reason was to demonstrate his mindset: he liked rough sex, and in particular liked rough oral sex, without a condom, with strangers. It was beyond coincidence that the complainant, on the appellant’s case, had got into his car uninvited and told him that she enjoyed being raped before trying to give him a blow job without a condom (which he declined) which was precisely the sort of sex these messages showed that he liked.

The prosecution submitted that the jury needed to see all of these messages in order to understand the prosecution case and to assess the appellant’s credibility overall. They needed to have the full picture. The messages about rape were not included because in and of themselves they demonstrated a propensity for rape – they obviously did not – but because it would not be possible to cut those messages out and still give the jury a full picture of the appellant’s mindset, his liking for rough, even forced sex, and his unusual sexual preferences.

There was no prejudice to the appellant in the admission of this evidence, alternatively, not such prejudice as to require the evidence to be excluded. In any event, it was clear that the jury were not prejudiced by it because they acquitted the appellant of the strangulation count which was alleged to have occurred in the appellant’s vehicle at the same time as the other offences.

We accept the prosecution’s submissions that there were two issues to which this evidence was relevant, which (subject to the exclusion provisions of section 103) made it admissible under section 101(1)(d) of the CJA 2003.

The first issue went to the reasons why the appellant was driving around Leicester that night. The prosecution case was that he was looking for sexual activity in areas where he might find sex workers; he was kerb crawling. He said he wanted to have “me time” and was not looking for sex. The messages were plainly relevant to that issue: the fact that he had extensively engaged with sex workers in the past, offering to meet them in his car and disclosing in the messages his sexual fantasies about what he would pay the sex workers to do, offered support to the prosecution case that he was cruising around looking for sex. If that had been the only point of relevance, there might have been a basis for excluding some of the messages or summarising them in a different way.

However, the second issue to which these messages went was the appellant’s mindset as he drove around that night. The issue was whether he was, as the prosecution said, someone who liked forceful sex, without a condom, even if it was rape. The prosecution were entitled to make their case that it was too much of a coincidence that he had happened to find someone to volunteer to give him precisely such sex that night. The prosecution were entitled, on the basis of this evidence, to suggest to the jury that the appellant was living out his fantasy and that he had raped the complainant to get what he liked and wanted. The jury needed to have a full picture of the appellant’s thoughts and fantasies to assess the case against the appellant. To do that, they needed to see all of this evidence in the round, without extraction of some of the more extreme parts.

The judge identified both reasons in his ruling. The judge referred to the appellant liking “forceful sex with a stranger” and to the appellant having “sexual matters on his mind” as he drove around repeatedly and for no apparent reason. We are satisfied that this evidence was relevant to an issue in the case: namely, whether the appellant had committed the acts of which he was accused, in these two ways which are connected.

We accept Mr Baines’ point that there were differences between the messages and the acts alleged, the key points being that sex with prostitutes would be consensual and not forced, and that the messages contained fantasies of rough sex only whereas the offences alleged actual conduct of that type. But the reason for admitting these messages was not to suggest propensity in the sense of showing the appellant had raped someone before (there was no such evidence), but rather to show the jury what sort of person the appellant was and what sort of sex the appellant enjoyed with a view to arguing that he was likely to have committed these offences in the manner alleged.

Section 103 requires exclusion of evidence where it will have “such an adverse effect” on the fairness of the trial. The judge had this in clear view in his ruling, and decided it would not have such an effect. We agree with that assessment. There were elements of this evidence which were extreme (notably the references to urination, defecation and rape). But any prejudice was outweighed by the probative value of this body of evidence – all of it - in the trial.

The judge directed the jury on the approach they should take to this evidence, considering first whether they accepted it and if they did, weighing it alongside all the other evidence in the case. Those directions are not the subject of any direct challenge although they were criticised by Mr Baines in oral submissions.

We are with Mr Baines in his criticisms of the legal directions, up to a point. First, we do not understand that it was part of the prosecution’s case that the appellant’s communications with prostitutes did, in and of themselves, establish a tendency to commit rape, contrary to what the judge suggested at one point, see the extract above. Secondly, it would have been helpful if the judge had indicated precisely how the text communications might lend support to the prosecution’s case, given the rather nuanced way the prosecution relied on this evidence, as going to the appellant’s mindset. Third, it might have been better if the judge’s direction had referred to all of these messages rather than focusing on the “rape reference”. Fourth, he might have told the jury in terms that they should not allow themselves to be swayed by extreme or deviant elements of the messages. However, we do not consider these matters to impact on the fairness of the trial overall and in any event they are not matters raised by the single ground of appeal.

We conclude that this evidence was correctly admitted. There was no error of law.

If, however, we are wrong about that, we would in any event have concluded that these convictions are safe. The evidence against this appellant was very strong. We have outlined the various strands of the prosecution case already. The complainant’s account of the essential elements of the attack was clear and credible. The complainant had injuries consistent with that account. She had made a recent complaint of the attack and had been broadly consistent in her account given subsequently. The DNA evidence strongly suggested that oral sex had occurred. The appellant’s account was inherently improbable: why would the complainant act in the way the appellant suggested? There was no credible explanation for why the appellant drove the complainant to a secluded location that was not on her way home, or why, if his version of events was correct, the complainant remained in the parked vehicle for 35 minutes. Independent witnesses had seen the complainant emerge almost naked and in a distressed state from the appellant’s car. The appellant’s activity in driving around for some hours, in advance of these events, during which time he picked up another female stranger in whom he showed a sexual interest, and in districts associated with prostitution and club life, also undermined his case.

For those reasons, this appeal is dismissed.

We thank both counsel for their clear and focussed submissions and for all the assistance we received.