R v Abdul Karim Naaim

On 23 August 2024 in the Crown Court at Basildon, the applicant (then aged 28) was convicted in absence of three counts of rape of a child under 13, contrary to section 5(1) of the Sexual Offences Act 2003. Those counts being counts 2 to 4 on a five count indictment. His co-defendant, Hashim Shariff, pleaded guilty to a like offence on count 1 of the same indictment. On 7 February 2025 the applicant was sentenced on count 4 to an extended sentence of 16 years and 5 months pursuant to section 279 of the Sentencing Act 2020, comprising a custodial term of 14 years and 5 months and an extended licence period of 2 years. He was sentenced to standard determinate sentences of 11 years on count 2 and 11 years and 10 months on count 3 to be served concurrently.

The applicant renews his application for leave to appeal against conviction following a refusal by the Single Judge and to advance fresh grounds of appeal not previously considered.

The facts can be stated shortly. At the relevant time the victim was a 12-year-old child who frequently ran away from home. On 21 October 2020 the victim was reported missing by her family. She was eventually located by police on 24 October 2020 in a hotel in Ilford in a room with the co-accused Hashim Shariff. Officers gained access to another one of the hotel rooms within which they found the applicant's passport which had been used to book the rooms as well as obvious signs that the room had been slept in. The victim was initially unsupportive of the police and refused to engage with the officers, however CCTV from the hotel, seized at the time, showed the victim and both the applicant and co-accused Mr Shariff going between the lift and landing to the rooms.

A few weeks after being located in the hotel the victim found she was pregnant. She was still aged only 12. The pregnancy was terminated on 31 December 2020. DNA testing of the foetus matched that of Mr Shariff.

The applicant was eventually arrested on 27 January 2021 for procuration of a 12 year old. However, he was not interviewed for the offence of rape due to being eliminated from the DNA of the foetus.

In 2023 the victim became supportive of the police investigation. She provided full details identifying the applicant and Mr Shariff as the men that she had stayed in the hotel room with. She confirmed that she had had intercourse with both males, and said that the applicant had raped her.

The applicant was again arrested and interviewed on 5 January 2024. He provided a prepared statement in which he denied the allegations and said he had never had sex with the victim.

It was the prosecution case that the applicant had raped the victim orally and vaginally whilst she had stayed at the hotel. The applicant had groomed the victim and given her drugs and money. It was the applicant's case, as set out in his Defence Statement, that he had been staying in the hotel in Ilford for 4 months, his co-defendant (who was also his cousin) also moved into the hotel in a room that was paid for by the co-defendant but booked under the applicant's name. He said that he and his co-defendant met the victim by chance one evening. The victim's friend wanted to ‘chill’ with them and they all went to the co-defendant's room where they smoked cannabis. A few days later the victim returned to the hotel saying that she had been kicked out of her home by her mother. The co-defendant said he would help her. The applicant stated he was aware that the victim was attracted to him, but he was not interested. He said he did not know why the victim was saying horrible things about him - maybe it was because he was not interested in her which upset her. He said he did not know that she was 12; she had told him she was 18.

The trial commenced on 19 August 2024. The trial date was fixed at the plea and trial preparation hearing on 2 February 2024. At that hearing the applicant was warned that if he failed to attend trial the trial may proceed in his absence. The applicant was subsequently admitted to bail subject to a number conditions including conditions of residence and an electronically monitored curfew. The applicant breached those conditions. He failed to attend a pre-trial review as required on 15 August and failed to attend his trial on 19 August 2024. He had by 19 August ceased to have contact with his solicitors although he was represented throughout by counsel. Having heard submissions the trial proceeded in absence, and he was in due course convicted.

The applicant has submitted multiple grounds of appeal. Some grounds are repetitive, others stem from the applicant's own researches into the law, which he has unfortunately either misunderstood or misrepresented. We are in the circumstances grateful for the helpful and concise way in which the respondent has analysed each ground as set out in original and addendum respondent's notes that have been provided.

The principal ground advanced is that the trial should not have proceeded in the applicant's absence. He asserts that he did not attend trial due to receiving severe threats about which he was too scared to tell anyone at the time but about which he now wishes to assert new evidence. Because he was not present, he was not able to give his defence to the jury and did not receive a fair trial.

The respondent sets out a detailed chronology of the applicant's contact with his legal team and with the court up to the date of its trial. It is noted that on 9 September 2024, after the applicant was arrested on warrant his wife, who acted as surety, attended court in order to show cause. She gave evidence that she had been threatened but provided no detail and her account was not found to be credible by the judge. This was the first time any threats had been mentioned. The applicant did not report any threats either to the police or to his solicitors.

The Single Judge found the evidence that the applicant wished to put forward to justify his non-attendance at trial was unconvincing, and we agree. The trial judge gave a detailed written ruling correctly setting out and applying the relevant principles in R v Jones [2002] UKHL 5 before concluding that the trial should proceed in his absence. The judge's analysis was plainly right and his conclusions cannot be criticised. The judge correctly directed the jury about the effect of the applicant's absence and was careful to emphasise that the fact of his absence was not to be taken as evidence of guilt and was not evidence against him. The applicant was represented by counsel throughout who had full instructions in accordance with which she was able to, and did, challenge the prosecution case through cross-examination of the victim and other witnesses.

Ground 2 is that the victim was coerced into making allegations against the applicant. There is no credible evidence to support this assertion which is unarguable.

Ground 3 is that the victim had a sexually transmitted infection. The applicant argues that had he had sex with her the victim would have passed the infection on to him; the fact that he was not infected proves he did not have sex with her. This again is unarguable. Evidence suggesting the victim had been treated for a sexually transmitted infection was disclosed to the defence. The information was that the victim had tested positive for chlamydia in 2022 and been treated with a course of antibiotics. This postdated the date of these offences. In any event, even if she did have a sexually transmitted infection at the relevant time, as the Single Judge noted, the fact that the applicant did not contract an infection shows only that and would still leave open the key question of whether there was intercourse, which the jury found proved.

Ground 4 is that important CCTV footage was unavailable at trial. CCTV footage was seized when the case was originally investigated but destroyed when the victim declined to cooperate with the police and the case was closed. This was all known to the defence and was raised at trial. The CCTV showed only common parts of the hotel not the interiors of any rooms. As it was not disputed that the applicant and his co-defendant lived at the hotel, and the victim was also at the hotel at the relevant times, it is entirely unclear how this material would have assisted the applicant.

As noted, the applicant now wishes to raise multiple and further additional grounds of appeal of which the principal grounds appear to be as follows:

Given that the victim was under 13 at the relevant time, the single issue for the jury was whether they were sure that the applicant had had sexual intercourse with her as set out in the indictment. The applicant was properly, and from what we have read, robustly represented throughout by experienced counsel. It was for the jury to assess the credibility of the victim and the weight of the evidence. It was for them to assess whether there were any inconsistencies in the victim’s evidence, and for them to assess whether there were material gaps in the evidence; whether caused by investigative decisions or for any other reason. The jury were correctly directed on the law, and the summing-up was fair and balanced. The decision to proceed to trial in absence was made applying the correct legal principles and was plainly right. The jury were correctly directed that the absence of the applicant did not prove guilt and could not be used as evidence against him.

We are entirely satisfied therefore that there is nothing in either the original grounds of appeal as considered by the Single Judge or in the multiple grounds subsequently raised that undermines the safety of these convictions, and these applications are accordingly refused.