Ashkan Bayramhaghigsi [2019] EWCA Crim 1519

**R v Ashkan Bayramhaghigsi [2019] EWCA Crim 1519** concerned an application for leave to appeal against conviction for sexual assault following refusal by the single judge, with two proposed grounds. The applicant was convicted on 29 May 2018 at Derby Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and on 19 June 2018 was sentenced to thirty months’ imprisonment, with a Sexual Harm Prevention Order imposed until further order and indefinite notification requirements under Part 2 of the Act. Miss Timan appeared pro bono for the applicant.

The applicant, an Iranian national granted asylum in the United Kingdom after arriving in 2015, encountered the complainant MV in Derby city centre on the night of 23 October 2016. MV, who had consumed a significant amount of alcohol and assessed her own drunkenness as “nine out of ten”, had lost her brother and went to the Charcoal Grill kebab shop to purchase food. CCTV footage from inside the shop showed the applicant approach and speak to MV at the counter, engage in conversation, and then follow her out of the shop. The two were together for approximately ten minutes after leaving the shop before reappearing on Derby City Council’s CCTV cameras on Beckett Street. Two security staff from a nearby public house, The Hairy Dog, observed the applicant and MV on the street. Initially thinking them a couple, they witnessed kissing, the applicant exposing MV’s breasts, putting his hands down her trousers and pushing her head against a wall. One security guard, Ms Tatum, became concerned the activity was non-consensual and called the police, who arrived shortly thereafter, spoke to MV and the security staff, and arrested the applicant. The arrest was captured on body-worn camera footage. In interview conducted in the presence of a solicitor and interpreter, the applicant claimed MV had consented throughout and that he had desisted as soon as she said she was tired.

The prosecution case was that the applicant sexually assaulted MV after she left the kebab shop, that she did not consent to any sexual contact, and that the applicant had preyed upon a vulnerable woman who was extremely drunk. It was not alleged that MV was so intoxicated as to be incapable of giving consent. The Crown relied upon MV’s account, including what she immediately told door staff consistent with non-consensual activity, what the door staff themselves observed, and CCTV footage from inside the kebab shop and on Beckett Street. MV’s recollection was incomplete due to intoxication, but she stated the applicant had approached her, kept trying to touch her, repeatedly said “We have sex”, put his hand inside the front of her trousers to the top of her knickers, and touched her breasts and vagina. She said she pulled his hand away and repeatedly told him to “fuck off”. Ms Tatum saw the applicant pull down MV’s top to expose her breasts, lick or suck her nipples, and put his hand down the front of MV’s trousers. She thought MV looked uncomfortable and tried to walk away but the applicant grabbed her. Mr Davies, another security guard, initially thought they were a couple but observed the applicant using his body weight to keep MV against a wall while she tried to push him away and swear at him. Footage was obtained from inside the kebab shop and from council cameras on Beckett Street, but critically there was no footage of the period immediately after the applicant and MV left the kebab shop, because the police had used the time of the emergency call as the mid-point of footage to seize and one system had the wrong camera time. By the time of trial, when the lapse was discovered, that footage had been deleted. The applicant gave evidence that he had struck up a conversation with MV in the kebab shop, kissed her cheek, and left at about the same time. He claimed MV leaned against a car outside the shop and they kissed for ten or fifteen minutes, with her joining in. They then stood against a wall on Beckett Street and kissed for some twenty minutes. He admitted touching MV’s breasts under her clothing and touching her vagina inside her trousers but said she had been enthusiastic and that as soon as she indicated she did not want to continue he desisted and left. He explained his initial denials to police by saying he had not understood what he was being asked.

The first ground of appeal challenged the trial judge’s refusal to stay the indictment as an abuse of process due to the absence of CCTV footage from the period immediately after the applicant and MV left the kebab shop. Miss Timan submitted that this footage would have depicted the applicant and complainant kissing and cuddling by a car, supporting the defence of consent, and that the police failure caused substantial prejudice rendering a fair trial impossible. The trial judge ruled that the prejudice was not sufficient to warrant the exceptional course of granting a stay, observing that the defence could draw the jury’s attention to other CCTV footage supporting the defence case, cross-examine witnesses, and call the applicant to give evidence. In his summing-up, the judge directed the jury that if they accepted the applicant had been placed at a material disadvantage by the failure to obtain CCTV, they should consider carefully to what extent that concern might influence their conclusions. The Court of Appeal, applying R v Feltham Magistrates’ Court ex parte Ebrahim [2001] EWHC 130 (Admin) and R v Fell [2013] EWHC 562 (Admin), noted as Fulford LJ had observed in PR v R [2019] EWCA Crim 1225 that there is no rule that unavailability of relevant material of itself means a trial is unfair. The court emphasised that the jury saw a substantial proportion of the interaction between MV and the applicant, both inside the shop and on the street, which the defence could submit was consistent with consensual activity. The eyewitnesses provided independent evidence from street level and were aware of the couple for some time before calling police. The judge’s direction properly captured the potential disadvantage to the defence. The court held that the loss of the footage created issues for both parties and that it was not possible to argue it created substantial disadvantage to the applicant. The jury was aware of the issue. A stay on a lawfully commenced criminal charge could only be imposed when the trial process, including jury directions, was unable to deal adequately with prejudice, and that threshold had not been reached.

The second ground concerned the manner in which the trial judge allowed and encouraged the applicant’s evidence to be given in English without complete and simultaneous translation from Farsi, despite the presence of a Farsi interpreter. Miss Timan submitted this breached the applicant’s right to participate fully in the trial and undermined its fairness. The transcript of the applicant’s evidence in chief showed that after he gave his name, the judge asked whether he understood a certain amount of English and that if he did not understand a question he could use the translator. Defence counsel objected, stating he was far happier to stay with the interpreter, but the judge directed that if the applicant understood a question he would be able to answer it and instructed counsel to proceed. Defence counsel expressed concern about nuances being missed, but the judge was not persuaded. During evidence in chief, the interpreter began to interpret but the judge interrupted, saying it was important the applicant followed questions and answered in English. The interpreter intervened when the applicant had not understood a term or word, for example “court hearing”, the number six, and the word “creating” when the applicant meant “greeting”. More significantly, when asked whether MV had objected to the applicant putting his arm around her, the interpreter interpreted the question but the applicant answered “Yes” in English, whereupon the interpreter said “No” and the applicant corrected himself, plainly having misunderstood the question. Defence counsel again expressed concerns, but the judge insisted there was no nuance in the question and directed that the evidence proceed in English unless the applicant indicated he did not understand. Following the luncheon adjournment, prosecution counsel raised his own concerns, noting the applicant was turning to the interpreter for assistance, but the judge maintained his direction. Miss Timan conceded she could not point to any part of the cross-examination where the applicant gave an answer damaging his case as a result of not understanding a question which was not clarified at the time.

The applicant sought leave to adduce fresh evidence in the form of a report from Dr Nicola MacLeod, a forensic linguist, who had read but not listened to the first part of the applicant’s evidence in chief. Dr MacLeod’s report identified numerous points demonstrating the applicant did not fully understand what he was being asked, that he likely overestimated his own linguistic competence, and that the trial judge relied upon misconceptions when instructing the applicant to ask when he did not understand. The court accepted her expertise and that her evidence was capable of belief, that there was a reasonable explanation for the failure to adduce it at trial, and that it might be capable of rendering the conviction unsafe if it demonstrated the applicant was unable properly to participate. However, the court considered whether leave should be granted in the first place. Miss Timan conceded that neither the transcripts nor any other information illustrated that difficulties in understanding were left uncorrected by counsel or the interpreter, or that the applicant was seriously disadvantaged, submitting instead that the lack of opportunity to give a full uninterrupted account in his own language had of itself sufficiently prejudiced his case.

The court held that Article 6 of the European Convention on Human Rights and rule 3.9.4 of the Criminal Procedure Rules provided for effective participation by use of an interpreter where necessary, and that it was for the judge to decide in the particular circumstances whether and to what extent an interpreter was required, assessing whether the defendant understood and spoke English to an adequate level so as not to suffer disadvantage. Close analysis of the transcript showed that areas of confusion and misunderstanding were immediately cleared up through the careful approach of both counsel and the interpreter. Miss Timan pointed to no questions or answers which were not so clarified. There was not a single example of any damaging admission by the applicant at any stage of his evidence, and when the applicant turned to the interpreter for assistance, the interpreter carried out interpretation. The court also noted that no objection had been raised to the judge’s summary of the applicant’s evidence in his summing-up. The court identified further features: neither the evidence nor the issue was complex; the applicant gave a full account of his defence in his police interview through an interpreter which was not inconsistent with his case at trial; the jury had body-worn camera footage of the arrest showing the applicant speaking English at the relevant time; the applicant’s defence was that he and MV had spoken to each other in English and he had not suggested his poor English caused misunderstanding; the jury’s evaluation of the applicant’s English may have resulted in allowances favourable to him; on the essential issue of consent there was independent evidence from eyewitnesses describing MV’s actions which needed no translation; and by the time of trial the applicant was undertaking a course of study in English. The court held this was a strong case with corroboration from independent eyewitnesses and that there was no suggestion that anything the applicant said in evidence was prejudicial because the interpreter was not used throughout.

The application was refused on the second ground. However, the court expressed regret and some cause for concern about the trial judge’s approach. An interpreter had been deployed in interview, during preparation and throughout trial prior to the applicant’s evidence. Counsel made clear very early in examination in chief that the applicant needed to use the interpreter, and prosecution counsel raised the same concerns explicitly after the luncheon adjournment. The judge gave no reason for his refusal to allow the applicant to use the interpreter throughout his evidence. The court failed to see why the judge took that decision initially and understood even less why, when it became apparent from the interventions of the interpreter that he had concerns too, echoed by both counsel, the judge did not revisit and alter his decision. The court expressed the hope and anticipation that this approach would not be replicated in the future. In short, the conviction was safe despite regrettable features of the trial judge’s handling of the applicant’s evidence, as substantial CCTV and eyewitness evidence remained available and no actual prejudice from language difficulties was demonstrated.

Feltham Magistrates’ Court ex parte Ebrahim [2001] EWHC 130 (Admin)
Director Of Public Prosecutions v Fell [2013] EWHC 562 (Admin)
PR [2019] EWCA Crim 1225, [2019] 2 Cr App R 22