Sexual assault convictions quashed in CCRC’s 750th case

The Court of Appeal has quashed Ahmed Mohammed’s two 2004 convictions for indecent assault. The case (Mohammed v R. [2021] EWCA Crim 201) had been referred to the Court of Appeal by the Criminal Cases Review Commission (CCRC).

At the time of the alleged offences the Appellant was just 18 years old and suffering from early onset schizophrenia. He had arrived in the country as a refugee from Somalia fairly shortly before the subject incidents and spoke no English. The two offences for which he was later convicted were two of six ‘similar fact’ type serious sexual assaults on women at night in the Tooting area in July and August 2001. The police suspected the same man to be responsible for these cluster of sexual offences given the descriptions and the modus operandi (including the use of a bicycle).  The Appellant came to police’s attention because he was missing on the night that one of the sexual assaults was carried out. A mobile phone was found at the scene of one of the incidents and all the victims said they had been spoken to in English by their assailant. The Appellant could not speak English and did not own a mobile phone. He was later positively identified at ID Parades by two complainants (but not the other three) and hence only charged with two of the six offences. There was no other evidence against him. He was held to be unfit to plead, but found to have carried out the acts after an ‘actus reus’ hearing. He was sentenced to a hospital order. He was subsequently deemed to be fit to plead and tried and convicted in 2004. He was sentenced again to a ‘hospital order’.

Mr Mohammed instructed Brett Wilson LLP in 2016. There was no transcript available of the 2004 trial and no defence or prosecution file available. The firm prepared a referral to the CCRC. It transpired that Mr Mohammed had not appealed against his 2004 conviction, but the Court allowed a referral by the CCRC because of the exceptional circumstances.

The CCRC obtained a DNA swab which had been extracted from the mobile phone found at the scene of one of the incidents leading to the conviction. From that DNA sample a male, S, of Turkish origin was identified. S had been convicted of outraging public decency after having sex with a prostitute on Tooting Common in 2003. At the time of his arrest, he had with him a bicycle. His description was much closer to that given by the victims than that of the Appellant. Crucially, on the mobile phone that was found at one of the crime scenes the messages on the phone were in Turkish.

The CCRC referred the case to the Court of Appeal on the basis that this ‘fresh evidence’ cast doubt on the safety of the convictions of the Appellant. Whilst the Crown did not oppose the introduction of the ‘fresh evidence’ its position was that it did not affect the safety of the convictions because of the positive identifications.

The Court of Appeal disagreed.  It was “struck by the great disparity between all the initial descriptions and details of the assailant in 2001 and the actual appearance of the appellant”. Lady Justice Macur who gave the judgment of the Court went on: “We agree with [the Appellant’s counsel]’s submission that its location, situation and condition rendered the mobile phone significant in the investigation, which is obviously how the police regarded it contemporaneously to the assault upon KF.  The physical description and other known details of its likely recent handler/user make it the more so. In 2002/2004 it is understandable why the jury could dismiss the presence and potential import of the mobile phone that had been found; the gender, age and ethnic origin of its owner were unknown. However, the DNA evidence matching it to S now provides that information and makes it a crucial part of the identification process. If the present information had been accessed by the police in 2003, at a time when S’s profile became available for comparison, we would be astonished if he had not been interviewed and relevant further inquiries made”.

Accordingly, the Court was “satisfied that the uncertainty created by the fresh evidence related to the mobile phone and its probable user significantly weakens the reliability of KF’s identification of the appellant and taints the reliability of EM’s identification. That is, the similarities in the nature, timing and location of the assaults are overwhelming, and were relied on as such by the prosecution. The likelihood of different assailants being responsible for the two attacks is remote. This important evidence was not in front of the jury.” Consequently, the Court was not satisfied of the safety of either conviction and ordered that both be quashed.

In spite of this, the Crown unsuccessfully sought the retrial of the Ahmed Mohammed. The Court of Appeal had raised substantial concerns about the safety of the convictions and unusually a separate offender with a relevant conviction history had been identified, not through an old-fashioned parade, but by DNA evidence. In spite of his identification, the Crown told the Court that there would be no further investigation into the serious sexual assaults in which six young women were subjected to horrifying ordeals in the street at night. Instead, it declared its intention to have another go at convicting a man with serious mental health problems, who is almost certainly innocent, whilst the real perpetrator remains at large.

The appellant was represented by Nick Brett and Sharron Boyce of Brett Wilson LLP and Dominic Thomas of 25 Bedford Row.

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