The King (on the Application of Ahmed Mohamed Ali Adan) v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Linden |
| Judgment Date | 29 November 2023 |
| Neutral Citation | [2023] EWHC 3059 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4767/2022; |
[2023] EWHC 3059 (Admin)
Mr Justice Linden
Case No: CO/4767/2022;
AC-2022-LON-003618
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Maya Sikand KC and Rosa Polaschek (instructed by Hodge Jones & Allen) for the Claimant
Mathew Gullick KC (instructed by Government Legal Department) for the Defendant
Hearing date: 23 November 2023
Approved Judgment
This judgment was handed down remotely at 10.45am on 29 th November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HONOURABLE Mr Justice Linden
Introduction
This is a claim for judicial review of a decision of the Defendant, dated 11 October 2022, to refuse the Claimant's application under section 133 of the Criminal Justice Act 1988. This section provides for the payment of compensation to a person who has been convicted of an offence where the conviction is reversed, or they have been pardoned, because a new or newly discovered fact (“fresh evidence”) shows beyond reasonable doubt that they did not commit the offence.
The Claimant was convicted on two counts of indecent assault on 19 February 2004 and he spent 13 years and just over 8 months in prison and hospital detention before his release. On 22 September 2020, his case was referred to the Criminal Division of the Court of Appeal (“CACD”) by the Criminal Cases Review Commission (“CCRC”). In a judgment of the Court which was given by Macur LJ, the reference for which is [2021] EWCA Crim 201, on 23 February 2021 the Claimant's conviction was quashed. The ground for doing so was that evidence resulting from a newly discovered match between DNA found on a mobile phone at the scene of one of the assaults and another person, (“S”), rendered his conviction unsafe.
The Claimant contends that the refusal of his application for compensation by the Defendant was irrational. Permission was granted on the papers by Her Honour Judge Karen Walden-Smith, sitting as a Deputy High Court Judge, on 27 February 2023.
Facts
The Claimant came to this country from Somalia on 2 July 2001 at the age of 17, to join his parents who were refugees living in Tooting in London.
In the early hours of 24 August 2001, the Claimant's parents reported to police that he was missing from the family home. He returned home at around 5am according to his father's evidence.
On 5 September 2001, the Claimant was arrested on suspicion of a sexual assault on JJ which had taken place shortly before midnight on 23 August 2001. He was suspected because his appearance was considered to be similar to the description of her assailant given by JJ although the details of that description are no longer available. The Claimant was bailed to return to the police station a week later.
When the Claimant answered his bail on 12 September 2001, he was arrested in connection with a further 5 indecent assaults which had been committed between 5 July and 30 August 2001 in similar circumstances in the Tooting area and at similar times of night. In interview the Claimant gave a mixture of denials and no comment answers through an interpreter, and his father pointed out that he had only been in this country since 2 July 2001.
The complainants in each of these sexual assaults gave the following descriptions of their assailant(s):
i) KF (offence committed shortly after midnight on Thursday 5 July at Tooting Grove): 5'10 ft, 20–25, thin build, dark wavy hair, dark eyes, dark olive skin, foreign accent, no facial hair.
ii) AD (offence committed at 1.30am on Thursday 26 July at Church Lane): Male, pale tanned skin, 5'10 ft / 6 ft tall, 20–30, medium build, black hair sun bleached at the top, top longer than the sides, afro style, small, neat features, brown eyes, short “tash”, foreign accent.
iii) EM (offence committed shortly before midnight on Wednesday 8 August at Church Lane): Male, 20, medium build, short wavy black 1 1/2' hair, round face, Mediterranean complexion, Spanish / Italian / Olive skinned, clean shaven, broken English, Italian lilt.
iv) JJ (offence committed shortly before midnight on Thursday 23 August in Seely Road): description not available
v) ZH (offence committed shortly after midnight on Friday 24 August in Church Lane) 6ft, 25, medium build, short black hair, dark skinned or Arabic.
vi) MJ (offence committed at 10.20pm on Thursday 30 August in Woodbury Street): 5′9″ / 5′10″, early to mid-twenties, thickish build, short hair dark, thick wiry hair, pock marked skin olive colour, unshaven [stubble], eastern European country.
It appears that the features of the cases were sufficiently similar for the police to believe that the assaults had all been committed by the same person. As Ms Sikand notes, all of the five complainants whose descriptions are known said that their assailant had olive skin or a Mediterranean or Arabic appearance whereas the Claimant is of Black Somalian ethnicity and appearance. Notwithstanding this, on 31 October 2001 an identification parade was held at which the Claimant was picked out by KF and EM. JJ did not take part in the identification parade. The three other complainants took part but they made no positive identification.
On 5 November 2001 the Claimant was charged with two counts of indecent assault in the cases of KF and EM. There was no prosecution in the cases of the other complainants.
In summary, the circumstances of the offence in KF's case, which I gratefully adopt from [18] of the CACD's judgment, were that she was walking home at about 12.15am on 5 July 2001 when a “male rode past her on a mountain bike and said, “Hello darling”. After attempts to evade him she had no choice but to walk past him. She “glanced” at him and said he appeared very calm. The male then grabbed her around the neck with his right arm from behind and had his left arm around her waist. She feared she was going to be raped. She said the male was holding something against her throat. He started to touch her breast and bottom. He tried to kiss her and continued to grope her. She lost her shoes. The male pulled her away from a fence that she had hold of, dragged her to some nearby bushes and forced her to the ground, face first, and continued to touch her body, breast, bottom, and leg area. She shouted for help, but the male continued to hold her tightly and tried to pin her arms to the ground. She screamed and the male then pushed her back to the ground and ran off.”
Gratefully adopting the summary at [22] of the judgment of the CACD, again, in EM's case “she was walking home just before midnight on Wednesday 8 August 2001 when she became aware of a person on a bike directly behind her. The male rode alongside her and started saying, “Hello, how are you?” She ignored him, but the male continued to follow her. She said, “I'm fine thank you” and he then started saying, “Lovely lady”. She felt a hand brush her bottom and began to walk faster, but the male kept riding along side. He then touched her bottom again and then swerved his bike across in front of her and trapped her against a hedge. The male grabbed her bottom again. She managed to get away, but the male followed her and grabbed her bottom again. She eventually managed to get away. She described the bike as a bright yellow adult mountain bike”.
KF's brother, TF, gave a statement. As noted by the CCRC, this said that in the immediate aftermath of the assault, KF told him that she had lost her shoes in the course of the attack. She had indicated a bushed area at the side of a building. He took a torch and went to the bushes looking for the shoes. A few feet off the path into the bushes he saw a mobile phone which was lying face down in the dirt and he pointed it out to police when they arrived. The phone was found to be charged and it contained text in Turkish.
It is apparent that the police regarded the mobile phone as potentially significant. KF's witness statement said that the police had showed her the mobile phone. “I then realised that it must have been the male's mobile phone held against my neck, because the object felt flat and hard,”. The police also asked the Claimant about the mobile phone on the basis that it was believed that the assailant held it against KF's neck.
In his interview under caution on 5 November 2001, the Claimant's solicitor said that it was not appropriate for the Claimant to answer questions owing to the fact that he had significant issues with his mental health. He was subsequently diagnosed with paranoid schizophrenia. However, a prepared statement was read which denied involvement in the two offences, said that he was willing to provide a sample of his DNA, denied that he had ever owned a mobile phone or a bike and stated that he had entered the UK on 2 July 2001 and could not speak any English on arrival. On both 5 July and 8 August he was at home with his family and would not normally leave the house without a family member.
A sample from the mobile phone was DNA tested but this only showed that the sample did not come from the Claimant. It did not show who the DNA did come from or could have come from.
The Claimant was found to be unfit to plead and a trial of the facts was held in which the issue was identification. On 16 October 2002, he was found to have done the relevant acts. A hospital order with restrictions was imposed pursuant to section 41 of the Mental Health Act 1983.
TF's statement was read to the jury at the trial of the facts. When KF was cross examined she said “I don't know if it was the mobile phone. All I know is that he had something flat and hard pressed against my throat”...
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