Ashkan Bayramhaghigsi [2019] EWCA Crim 1519

The applicant was convicted of sexual assault and sentenced to 30 months’ imprisonment.

Two proposed grounds of appeal were raised in an appeal against conviction. The first was that the judge was wrong to proceed when CCTV required by the defence was not available from the police. The second was that the judge failed to allow the applicant to give his evidence through an interpreter.

The single judge had refused leave, but since then a report from a forensic linguist had been obtained and was the subject of an application to adduce fresh evidence.

The issue at trial was consent; there was no issue that sexual activity had taken place. The applicant was arrested a short time after leaving her and was asked if he had been with a girl. He said he did not know and later said he responded in that way as his level of understanding was low. His English was imperfect.

There was CCTV footage from inside a kebab shop where they met and outside council offices. The police failed to secure footage from the cameras that would have shown the two of them when they first left the kebab shop.
The defence applied to stay the indictment on the basis the lost footage was key to demonstrating consent, and the applicant’s reasonable belief as to consent. The judge ruled it was simply not sufficient to warrant the exceptional course of granting a stay.

The applicant’s evidence was encouraged and directed by the judge to be given in English without complete and simultaneous translation from the interpreter who was present. The interpreter interrupted when it was obvious the applicant had not understood a word or term. It was clear he had misunderstood the question “Did she object?” and defence counsel raised concerns. The judge repeated his instruction that the evidence was given in English.

Held: “a stay on a lawfully imposed charge cannot be imposed lightly. It is only appropriate when the trial process, including the directions to the jury, is unable to deal adequately with the prejudice caused to the defence by the absence of the relevant material.” It was not possible in this case to argue that it created a substantial disadvantage to the applicant. The threshold to justify a stay had not begun to be reached.

The essential issue the court must address is: does the defendant understand and speak English to an adequate level so that he does not suffer any disadvantage from any deficit in his knowledge. That was a matter for the trial judge. The transcript showed that any misunderstanding was immediately cleared up, and defence counsel did not point to any areas where questions or answers had not been clarified where necessary.

The application was refused on both grounds. The Court did, however, express concern as to the trial judge’s approach to the applicant’s evidence. An interpreter was used in the interview, during preparation for the trial, and was present at the trial. The judge gave no reason for his refusal to allow the applicant to use the interpreter. The Court could not see why he took that decision initially and even less why he did not revisit that decision once concerns were raised. It was an approach that should not be replicated in the future.