Forhad Alam [2019] EWCA Crim 1510

In Forhad Alam [2019] EWCA Crim 1510 the Court of Appeal (Lord Justice Hickinbottom, Mrs Justice Carr and Mrs Justice Andrews) quashed Mr Alam’s conviction for violent disorder on the ground of fresh evidence concerning mobile phone data.

The appellant had been convicted on 31 August 2018 at Snaresbrook Crown Court before His Honour Judge Southern after trial. He was sentenced on 26 October 2018 to one year eight months and one week’s detention in a young offender institution. The case concerned two incidents of violence in east London on the evening of 2 March 2018. Shortly after 6.30 p.m., a car in Russia Lane was attacked by approximately six armed youths. The victim Mr Alom was in the passenger seat when the group smashed windows, slashed tyres and attempted to break the windscreen with weapons including a sword or machete, knives and a hammer. Nearby residents emerged when Mr Alom sounded the car horn, and the youths fled. Mr Rana, who had left Mr Alom briefly in the vehicle, chased some of them before returning. At about 7 p.m. a cyclist was assaulted nearby in Bethnal Green Road. The appellant lived at Barnes House. Police attended at about 8.40 p.m. and found him there with friends. Mr Alom and Mr Rana attended the scene and identified the group generally, Mr Alom identifying the appellant whilst he was handcuffed. Five defendants were charged in respect of the Russia Lane attack with violent disorder and with causing grievous bodily harm with intent to the cyclist. The grievous bodily harm count was dropped against the appellant after review of cell site and facial mapping evidence showed he could not have been at the Bethnal Green Road scene at 7 p.m.

At trial the prosecution relied principally upon identification evidence from Mr Alom and Mr Rana, who both picked out the appellant at formal identification procedures on 18 and 24 April 2018. Mr Alom stated at the procedure that the appellant was the “attacker” who provoked the others, though he later testified that the attackers’ faces were largely covered and he relied on body posture, aggression and body language when identifying the group at Barnes House. Mr Rana gave evidence that he recognised some of the youths from the area and described chasing “the fat one” towards Barnes House. He stated the man with the hammer was skinny and black and lived in Barnes House. The appellant’s defence was that he was at home until about 7.15 p.m., some 35 minutes after the Russia Lane attack, then left to buy cigarettes. His mother gave supporting evidence, though there were inconsistencies between their accounts as to whether the appellant had eaten before leaving and whether he had house keys.

Cell site evidence from the appellant’s mobile network provider, O2 on behalf of Giffgaff, was served as unused material and later relied upon by the prosecution. A schedule of data was initially served at full disclosure, later served again six days before trial on 3 July 2018. PC Privett gave a statement referring to the records as records of telephone calls, and confirmed that characterisation when the defence sought clarification three days before trial. No mobile network data usage was shown during the relevant period up to 7.10 p.m. The prosecution expert Richard Baxter, who attended trial in place of Dominic Kirsten, explained that this could mean the phone was not using data, that mobile data had been turned off, or that the phone was using another data source such as WiFi. He was unwilling to accept in cross-examination that the absence of mobile network data made it likely the phone was on a WiFi network, only that it was consistent with such use. Neither prosecution nor defence interrogated the appellant’s mobile phone before trial. The phone, a smartphone, required a pattern to unlock it. The appellant said he could not remember the pattern and did not provide it to the police. The defence team did not seek access to it.

After conviction the defence team retrieved the phone. The appellant evidently provided the pattern enabling access. The defence instructed Lee Bottomley of Leyson Data Limited, who produced a report dated 26 September 2018. The Crown later instructed Kelvin Goodram and Alexander Eames of Cyfor. Mr Bottomley and Mr Goodram met on 27 and 28 June 2019 and prepared a joint memorandum recording agreement that the Snapchat application on the phone had been in use between 6.15 p.m. and 7.30 p.m. on 2 March 2018. There was heavy file activity almost every minute from 6.26 p.m. to 6.55 p.m. and 7.08 p.m. to 7.11 p.m. in the form of creation and modification of pictures, videos and audio files. Seventeen Snapchat “stories” received earlier were viewed during that period. Snapchat messages were sent at 6.44 p.m. and 6.52 p.m. and received at 6.55 p.m. and 6.57 p.m. The timing appeared reliable because the phone’s clock was aligned with the Snapchat servers. Mr Goodram’s report of 3 May 2019 showed that at 6.44 p.m., the time of the first 999 call following the attack, the message “Why does it say play at the bottom” with an open eyes emoji was sent from the phone, and at 6.52 p.m. the message “No you can’t” was sent. The most recent recorded connection to a WiFi network was to a Sky hub at 12.29 a.m. on 2 March 2018. Evidence at trial showed the appellant had access to a Sky WiFi hub at his home address, supported by a Sky bill produced by his mother.

The appellant applied 26 days out of time for leave to appeal against conviction and for leave to rely on fresh evidence under section 23 of the Criminal Appeal Act 1968. The delay resulted from obtaining and reviewing Mr Bottomley’s report. The court granted an extension of time. Mr Loughlin for the appellant submitted that the new evidence demonstrated that the appellant’s phone was in constant use between 6.27 p.m. and 6.54 p.m., the period of the attack and flight, and that the most likely explanation was that the appellant was at home using the phone connected to his home WiFi network. This supported his alibi and undermined the prosecution case.

The court considered the four matters specified in section 23(2) to which particular regard must be had when deciding whether to receive fresh evidence: whether the evidence is capable of belief, whether it may afford a ground for allowing the appeal, whether it would have been admissible at trial, and whether there is a reasonable explanation for the failure to adduce it below. The court was satisfied that the expert evidence was credible and would have been admissible. As to the explanation for non-adduction, the court noted that the appellant had relied on an alibi of being at home and, if he had been using his phone on the home WiFi network during the material period, that was information which could have been obtained by interrogating the phone before trial. The court accepted that there was no suggestion of a tactical decision by the defence not to interrogate the phone, nor any evidence that the appellant thought it tactically advantageous not to allow access. It remained a mystery why the appellant had not told his defence team he was using his phone during the relevant period. Had he done so, the court was sure the defence team would have investigated and adduced the evidence. The court further accepted that the prosecution, no doubt unwittingly, misled the defence by describing the O2 data as relating to telephone calls rather than mobile data, a misunderstanding not clarified until Mr Baxter’s cross-examination.

The court emphasised that the factors in section 23(2) are not preconditions but matters to which the court must have particular regard when deciding whether it is in the interests of justice to receive the evidence, citing Sales [2002] 2 Cr App R(S) 431 and Cairns [2000] EWCA 21. The absence of a reasonable explanation for failure to adduce evidence at trial is not fatal to an application under section 23(1). The court accepted that the new evidence, whilst not necessarily decisive, was or might be strongly supportive of the appellant’s case that he was not at the scene but at home during the attack. It was open to a jury to conclude on the basis of the new evidence that the appellant was or might have been using the Snapchat application on his phone at home at the time of the assault and flight. The prosecution case, which rested primarily on identification evidence, was not so strong that a jury could not reach that conclusion. Judge Southern had recognised at trial that the identification evidence was not the strongest. The incident was short, violent and frightening. Mr Alom relied on general characteristics such as gait and clothing rather than facial recognition and had seen the appellant in handcuffs at Barnes House shortly after the incident. Mr Rana saw the incident briefly from a fourth floor window and during a short chase, and the perpetrators’ faces were not clearly visible. He knew the appellant generally from the area. Ms Ong for the Crown submitted that the prosecution case was supported by the appellant’s association with his co-defendants and inconsistencies between the accounts of the appellant and his mother, but the court did not consider those matters outweighed the potential significance of the new evidence.

After careful consideration, the court concluded that it would be unjust not to receive the new evidence and that it was clearly in the interests of justice to do so. On the basis of that evidence, the court considered it inevitable that the conviction was unsafe. The court granted the extension of time, allowed the section 23 application and received the written evidence of Mr Bottomley and his joint memorandum with Mr Goodram, granted leave to appeal, allowed the appeal and quashed the conviction. The Crown did not seek a retrial, noting that the appellant had effectively served the custodial part of his sentence. In short, mobile phone data showing intensive use of the Snapchat application during the time of the attack, strongly suggesting the appellant was at home on his WiFi network, was not available to the jury and rendered the conviction unsafe notwithstanding identification evidence from two witnesses.