R v Komar Ismail Mardan

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with section 3 of the Act. This judgment has been anonymised accordingly.

On 14 April 2023, in the Crown Court at Bradford (HHJ Ahmed Nadim), the Applicant (then aged 36) was convicted of Sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003 (Counts 1 to 4) and doing an act tending and intended to pervert the course of justice (Count 5).

On 28 April 2023 (before the same court), the Applicant was sentenced on Count 1 to a term of imprisonment of 10 years. On Counts 2 - 4 he was sentenced to concurrent terms of imprisonment of 10 years. On Count 5 he was sentenced to a consecutive term of imprisonment of 1 year. A total sentence of 11 years' imprisonment. A co-accused ("X") pleaded guilty (on a basis) to Count 5 and was sentenced to a term of imprisonment of 12 months.

The Applicant renews his application for an extension of time (574 days) for leave to appeal against conviction following a refusal by the Single Judge. Fresh solicitors opened a file on 5 February 2024 and have worked on the case since, the Applicant having previously sought advice from another firm of fresh solicitors post-trial. The application was lodged on 6 December 2024.

The sole ground of appeal relates to a jury note received during the course of trial, and the Judge's allegedly inadequate response thereto which it is said left open a real risk of prejudice to the Applicant, as a result of which it is submitted that the convictions are unsafe.

It remains appropriate to set out the facts of the alleged offending to place the jury issue that arose in context.

In June 2019, the complainant ("C"), then aged 17, disclosed to her mother that the Applicant had given her alcohol and cigarettes and had sex with her when she was 14 to 15 years old. Following that disclosure, the police were contacted and an investigation began. C was ABE interviewed on 14 June 2019 and 10 January 2023. The Applicant was arrested on 26 September 2019. He was interviewed by the police on 27 September 2019 and 22 December 2022.

The prosecution case was that, at a time when C was 14 or 15 years old (and the Applicant was aged around 28), the Applicant befriended C and began a sexual relationship with her, despite knowing her age (the subject matter of Counts 1 to 4). When C was about 14 years old, she began exchanging messages with the Applicant. The Applicant suggested meeting up. He told her that if they met he would give her some alcohol. He suggested that she bring one of her friends ("A"), along with her.

On the first occasion that they met, the Applicant collected C in a white Mercedes. He drove her around in his car for about 15 minutes and gave her some chocolates, before dropping her off back at home. The Applicant began to regularly meet up with C and her friend A.

The prosecution case was that the Applicant was well aware that C was then 14 years old. The Applicant would take the girls to one of two houses in the area or to the basement of the shop where he worked. He began sexually grooming both girls by providing them with cigarettes and alcohol.

The Applicant soon told C that as he has been "good" to her that they should have sex. Over a period of around eight months, the Applicant began to engage in sexual activity with C and her friend which included vaginal intercourse (Counts 1 and 3) and oral penetration (Counts 2 and 4).

The Applicant used threats to make sure that C continued to agree to meet him and he began to treat her like a prostitute. Eventually C managed to stop meeting him. She deleted her social media accounts and changed her phone number in order to prevent the Applicant from contacting her.

During the summer of 2019, C's friend, "B", received a series of messages from an Instagram account, seemingly asking for paid sex with C. The Prosecution case was that these messages were sent by the Applicant. B contacted C to ask what the messages were all about. As a result, C made the disclosure to her mother.

After matters had been reported to the police (and knowing that C was going to attend court in order to give her pre-recorded evidence in December 2022), the prosecution case was that the Applicant then arranged for a man he knows, the co-accused "X", to offer C money in return for not giving evidence against him (Count 5). On 19 December 2022, four days before the re-scheduled section 28 hearing, C's boyfriend, "M", received a message on Facebook from the co-accused. When M telephoned the co-accused, the co-accused said that he was the "middle-man" and asked "what price do you want not to attend court?"

Matters were reported to the police and the co-accused was traced through his Facebook account. The prosecution case was that the Applicant was acting together with the co-accused.

To prove its case the prosecution relied on the evidence of C. In addition to C's evidence, the prosecution also relied on evidence of complaint from C's mother, and a female police officer, as well as the agreed evidence of B in relation to the Instagram messages she received in the summer of 2019, and evidence of C's partner, in relation to his contact with the co-accused on 19 December 2022.

The defence case was that the Applicant believed that the complainant was over the age of 16 when he had sex with her and that he had nothing to do with the co-accused and the subject matter of Count 5.

The Applicant gave evidence. He said that he did not have a white Mercedes in 2015, 2016 or 2017. In relation to the co-accused, he denied that he had asked him to approach anyone. He accepted that he had consensual vaginal and oral sexual intercourse with the complainant when he believed her to be 19 years old. He denied giving her and her friend cigarettes. He first contacted C when she visited his shop. She later introduced him to her friend. He 'chilled out' with the girls in the houses three to five times and had sex with C on five to seven occasions.

The issue for the jury on Counts 1 - 4 was whether at the material time the complainant was under the age of 16 and if so, whether the Applicant did not reasonably believe that she was 16 or over. In relation to Count 5, the issue for the jury was whether the Applicant acted together with the co-accused.

During the course of the trial, on 13 April 2023, a jury note was received:

The note was said to have reflected the sentiment of more than one juror which can, also, perhaps, be discerned from its wording.

Following discussion between the Judge and counsel, the jury were directed as follows:

The Judge therefore told the jury, firstly, that the matter had been dealt with and, secondly, that if they had any further concerns they should share them with the Judge. No further concerns were raised.

The Judge commenced his summing-up by repeating what he had said previously in the trial, that:

Very similar words had been used by the Judge, after the jury had been sworn, in his homily at the start of the trial. He also stated in his homily, amongst other matters that:

The grounds of appeal against conviction, drafted by fresh counsel, Brendan Kelly KC, which were refused by the Single Judge, and are now renewed before us, are that the convictions are unsafe in the context of the jury note and the response thereto. It is said that in relation to the jury note the Judge failed to deal with any prejudice which may have occurred to the Applicant, and the direction given was incomplete and left open a real risk of unfairness to the Applicant. In this regard it is submitted:

In light of the maters alleged in the grounds of appeal trial counsel were contacted and provided a written response on 6 November 2024. Amongst other matters he stated as follows:

It appears from this that the trial counsel did (in due course) speak to the persons believed to be concerned in strong terms (which marries with what the Judge told the jury that "appropriate measures have been taken in response to that note and you do not need to be concerned about the matters that you have raised in your note"), and also that nothing further adverse occurred.

In response to the fresh grounds of appeal, the prosecution lodged a Respondent's Notice and Grounds of Opposition. After noting that the application is 18 months out of time and that there is no adequate explanation for the delay, the following points were made in relation to the jury note. The jury did not express any concern about the Applicant's behaviour, the Judge adopted an appropriate approach, the direction to the jury was appropriate and no further concerns were raised. Trial counsel was confident that he obtained instructions from the Applicant not to make an application to discharge the jury and, in any event, such an application would not have succeeded. The Judge directed the jury in respect of the note in an entirely proper manner and no prejudice or unfairness was caused to the Applicant that could render the convictions unsafe.

The discussion with counsel about the jury note was relatively short, as appears from the transcript of that discussion. Defence counsel indicated that he was not going to be asking that the jury be discharged, and when asked by the Judge what should be said or done in relation to the jury note he replied that the response to the jury should be that the Judge had received it and had taken appropriate action. The Judge then proposed that he should say that appropriate measures have been taken and they need not be concerned, and the Judge expressed the view that that should be enough, to which defence counsel agreed.

It will be apparent that the step process in paragraph 26M of the Criminal Practice Direction 2015 was not followed in any formal sense (the 2023 Criminal Practice Direction was not in force until May 2023). Those seven steps are:

From the information that the Judge had, it appears that the note came from more than one juror and the isolation of particular jurors was probably not necessary in such circumstances. In this regard the note related to what everyone would have been observing. There was a discussion with counsel, although it would have been better if the process had been taken more slowly, and the way forward discussed in the more detail.

Such discussion might have included exploring whether the jurors should be directed that the observers' actions were not the responsibility of the Applicant, and that their actions should not be held against him, though that of course could simply highlight the point in circumstances where there was no evidence that the Applicant was directing their actions (he was on remand), and there was no reason to hold the observers' actions against him. Indeed in the context of Count 5 it could have made a link to that Count in circumstances where no such link was in the mind of the jurors.

The jury note did not make any reference to the Applicant. It referred to men in the public gallery, who the jury were concerned were watching them as they left court. There is no basis to suggest that the jury had any concerns about the Applicant's behaviour or any reason for them to hold the observers' actions against him. In such circumstances any further direction might have raised a concern that did not exist, to the potential prejudice of the Applicant.

Whilst any discussion might also have involved exploring whether the jurors should be asked whether they could remain true to their oath, there is no reason why the circumstances called that into doubt in the first place, and we have no doubt that had any jurors had any residual concern they would, as directed, have shared them with the Judge, including in the context of collective responsibility and the direction the Judge had given the jury in that regard.

We have no doubt that on the facts of this particular case the outcome of a more detailed discussion would have been the same. The complaint was relatively low grade and, notwithstanding the submissions now advanced, we are satisfied that it did not implicate the Applicant, and that further elaboration could have been to the detriment and prejudice of the Applicant. It is understandable why the Applicant did not wish to seek the discharge of the jury, and in such circumstances a "least said, soonest mended" approach was required. What was needed was reassurance to the jury that the point had been dealt (as it had been) coupled with a clear steer that if they had any further concerns thereafter they should share them with the Judge. This is precisely how the Judge directed the jury. The jury would have been further reassured by the fact that there was no re-occurrence of what they had described in their note.

In addition, the jury had already been directed, and were then reminded again in the summing-up, to decide the case on the evidence they heard in court and nothing else. And a combination of the immediate direction and the further directions we have identified were, we are satisfied, sufficient in the particular circumstances of this case.

There accordingly was no misdirection to the jury in relation to their note, and no prejudice or unfairness was caused to the Applicant. There was no contemporary appeal for understandable reasons, and we do not consider that any good reason has been established for the lengthy delay that followed in circumstances in which all relevant facts were known at the time of conviction, and thereafter.

Accordingly, and whilst we do not consider that good reasons have been made out for the extension of time sought in any event, the convictions are not arguably unsafe, and in such circumstances the renewed application for leave to appeal against conviction, and associated extension of time are dismissed.