Case No: 201302234 B2
Neutral Citation Number: [2014] EWCA Crim 2647
IN THE COURT OF APPEAL
CRIMINAL DIVISION
T20121163

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/01/2015
Before :

PRESIDENT OF THE QUEEN’S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE OPENSHAW
and
MR JUSTICE DOVE
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Between :

	ALTAF AHMED
	Applicant	
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	THE QUEEN	Respondent	

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Mr. T. Schofield  appeared on behalf of the Applicant      
Mr. W. Mousley QC & Mr. J. Pegg appeared on behalf of the Crown (neither appeared in the court below)     

Hearing date : 10th December 2014
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Judgment
The Honourable Mr. Justice OPENSHAW : 
1.	The applicant was sent for trial in the Crown Court at Birmingham facing two sexual assaults on the same 6 year old boy, A. An indictment was drafted charging him in count 1 with causing or inciting A, a child under 13, to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003 and in count 2 with a sexual assault on A, a child under 13, contrary to section 7(1) of the Act.
2.	On 11th April 2013, Her Honour Judge Thomas found the applicant was found to be unfit to plead under section 4(5) Criminal Procedure (Insanity) Act 1964. On the same day, a jury found that he had committed the acts alleged under section 4A(2) of the Criminal Procedure (Insanity Act) 1964.
3.	On 4th June 2014 he was made subject to a Supervision Order for a period of 2 years on each count concurrently, with a requirement that he submit to treatment as required by his registered medical practitioner.  Other consequential orders were made, which are not relevant for present purposes. 
4.	We appoint trial counsel Mr Schofield to act on his behalf: see section 4A(2)(b) of the Act and R v Norman [2009] 1 Cr App R 13; acting with implied authority he drafted the grounds of appeal and now, on the applicant’s behalf, he renews the application for leave to appeal against the finding of fact on counts 1 and 2 following refusal by the single judge.
5.	The facts are as follows. A, who gave his evidence in chief by way of ABE interview, alleged that he had been sexually assaulted by a male in a mosque a few days previously, on 3rd  July 2012. He stated that an unknown man had called him into the seating area where those attending the mosque wash their feet; the man told him to remove his jacket and jabbah (a Muslim over-garment) and undo the buttons of his trousers. The man then made A touch his genitals over clothing (count 1) and kissed the complainant on the mouth and nose (count 2). The complainant’s 8 year old brother had also seen the incident; he said that he had seen a man calling to his brother and had seen his brother go into the toilet area with him; he followed and saw the man pointing at his brother’s trouser button before the man sent him away. Both the complainant and his brother gave a description of the man; he was seen on the mosque CCTV. The applicant was arrested; both boys positively identified him during identification procedures. 
6.	Because of his mental health problems, he was not interviewed. He was unfit to participate in the trial process in any way; indeed he was unfit to attend the hearing, which took place in his absence; he was unable to give any instructions; of course, he was unfit to give evidence. The judge very properly directed that no adverse inference be drawn from this or his inability to answer questions in interview.
7.	The issue for the jury was whether or not he had committed the acts as alleged; since the evidence of the boys that he had done so was clear and uncontradicted, the jury inevitably found that he had done the acts.
8.	The applicant now seeks leave to appeal against this finding. Mr Schofield on his behalf makes one point: during the trial he had applied to put in evidence an extract from the school log to the effect that, a few days before the incident complained of, a teacher had seen A and another boy of the same age in the school playground; A had his hand on the other boy’s private parts; the other boy looked a bit distressed and when asked by the teacher what was happening, the other boy said that A was showing him ‘how to hurt other people’. 
9.	Mr Schofield argued that this should have been admitted in evidence under section 100 (1)(b) of the Criminal Justice Act 2003 in that ‘it had substantial probative value in relation to a matter which (i) is a matter in issue in the proceedings and (ii) is of substantial importance in the context of the case as a whole’. He suggested that this evidence might suggest an alternative explanation for what was going on between A and the applicant on 2 July and might suggest the possibility that what happened between them was accidental or the result of an aggressive push by A himself rather than a sexual assault by the applicant.  The judge had regard to the statutory test; she did not admit this evidence, on the grounds that what happened between the two boys was not a sexual act and had no sufficient similarities or relevance to what passed between A and the applicant and might serve to divert the attention of the jury from consideration of that, which was the real issue in the case. 
10.	Mr Schofield has repeated his submissions to us. 
11.	We might add – for the sake of completeness - that, on reflection, Mr Schofield thought that his application could only bear on the offence charged in count 1 (founded on the touching by A of the applicant’s genitals) and not on count 2 (the act of kissing). So that even we thought it right to set aside the finding that he did the act as alleged in count 1 the finding that he did the act as alleged in count 2 would be unaffected. So in this sense, the application would have had no practical effect. 
12.	In our judgment, what passed between A and the other boy, of the same age, in the school playground, some days before, when A was seemingly showing the other boy how to hurt someone, has no possible relevance to what happened in the mosque between A and the applicant, some days later; and even if this is ‘bad character evidence’ in respect of A (which seems highly doubtful) it does not begin to pass the statutory test of being ‘of substantial probative value’; it seems to us to be entirely irrelevant. Consequently, we think that the judge was right to exclude this evidence, for the reasons she gave.
13.	Mr Schofield urged us to heed the advice of Thomas LJ (as he then was) in R v B [2010] EWCA Crim 1799, at paragraph 16 to the effect that when dealing with any person found unfit to plead: ‘A judge must … take the utmost care to ensure that the rights of the defendant before him … are properly taken into account’. But this does not render admissible evidence which is plainly inadmissible.
14.	Consequently, the application is dismissed. 
15.	We direct, however, that Mr Schofield’s costs are covered by Part IIIA of the regulations made under section 19(3)(d) of the Prosecution of Offences Act 1985.