12:12, May 22 160 0 theguardian.com

2018-05-22 12:12:09
Secret evidence leads to downgrade of convictions over Stoke shooting

Secret evidence that was not disclosed at trial has led to the overturning of the convictions of five men for conspiracy to murder following a shooting in Stoke-on-Trent in 2010.

Although the court of appeal imposed alternative convictions for the lesser offence of conspiracy to commit grievous bodily harm, the men and their lawyers still do not know what the new material reveals.

The five – Wassab Khan, 38, Omran Rashid, 41, Abdul Maroof, 36, Abdul Jabbar, 26, and Fisal Saraj, 27, all from Birmingham – originally received sentences of between 20 and 24 years. They will remain in prison awaiting sentence for the GBH convictions.

“In 40 years I have never come across anything vaguely like this before,” said Alistair Webster QC, representing the men. “They have no true idea of the material that has brought them back to court.”

This latest failure to release key evidence comes amid mounting concern over disclosure problems in rape cases, mainly involving large quantities of digital material from phones and computers that have not been handed over to the defence in time.

The secret evidence in this case is understood to have emerged during a separate trial, part of which was heard under a public interest immunity (PII) certificate, which prevents highly sensitive evidence – often related to security matters – from being presented in open court.

The five men were convicted over an attack on Mohammed Afsar, a restaurant owner, on 4 June 2010. He had just climbed into his car when a Vauxhall Vectra pulled up alongside. Two men jumped out, one of them carrying a sawn-off shotgun.

The gunman ran to where Afsar was sitting and fired into his lower leg and foot. The men escaped in the Vauxhall, which was later found partially burnt out. Afsar had received threats in connection with another court case about an assault on his son.

Pictures from CCTV cameras, analysis of mobile phone locations and fingerprint evidence linked all five men to the attack.

A “confidential annex” containing the secret material has been seen by the three court of appeal judges and the Crown Prosecution Service (CPS). It is not clear whether the material was withheld by police or by prosecutors.

Annabel Darlow QC, for the CPS, accepted there was “no satisfactory explanation” for the failure to disclose the material earlier. In the end the CPS passed the secret evidence to the Criminal Cases Review Commission, which referred the men’s case to the court of appeal for the safety of the convictions to be reviewed. “It was a dismal history,” Darlow said.

The five men were not in court but listened via video links from their jails.

Webster told the court: “If this material was available at the time to the prosecution then it was a very serious matter that cannot be overlooked. It’s difficult to see a more serious failing on the part of the prosecution than to allow someone to be tried for the offence of conspiracy to murder when the prosecution knows that it should not have taken place.

“The material should have been disclosed. These men have been allowed to languish in a category-A prison.”

He conceded that the jury would otherwise have convicted the men of the GBH charges.

Suzanne Gower, the managing director of the Centre for Criminal Appeals who has following the case, said: “In January 2018 the director of public prosecutions said she ‘doesn’t think’ that anyone is in jail after being wrongly convicted because of failures by the police and prosecution to pass on evidence. Today’s result in the court of appeal makes clear that this claim was nonsense.”