Barrister: No explanation for conduct of case
The Court of Appeal has taken the rare step of quashing a child rape conviction because of the defence barrister’s failure to explore key evidence during the trial.
Counsel on the appeal, Tom Wainwright of Garden Court Chambers, persuaded the judges that vital evidence in the case had been “overlooked, abandoned or poorly argued” by the barrister during the original trial in 2023.
The judges overturned the conviction in 2024, released on bail the man who had been jailed for 12 years for the offences, and ordered a re-trial.
When the retrial took place earlier this year, the Crown Prosecution Service offered no evidence.
Details of the appeal and the reasons for quashing the conviction can only be reported now.
Cardiff shopkeeper Nazir Ahmed was found guilty on a majority verdict of three counts of child rape in April 2023.
At the original trial at Cardiff Crown Court, Mr Ahmed was accused of repeatedly raping a 14-year-old girl who worked at his shop in 1998. The girl came forward 22 years later.
The jury was told the teenager had a very troubled homelife, rarely went to school, drank a lot and tried to commit suicide to bring the rapes to an end.
The trial advocate settled two grounds of appeal. On the papers, the single judge, Mrs Justice Yip, was “not impressed” with them as drafted but had enough concerns based on the transcript to merit a full review by the court.
She directed the registrar to instruct fresh counsel, at which point Mr Wainwright was brought in.
Giving the ruling, Lord Justice Warby acknowledged that the Court of Appeal was “slow to allow appeals against conviction based on complaints about the conduct of the appellant’s trial representatives”.
But here, the grounds of appeal identified “multiple points that could have been taken at trial, on the basis of material that was available to the trial advocate”.
Warby LJ said each one was cogent, continuing: “Some of them were taken but then not pursued. Some were taken but pursued in a way that is justly criticised as narrower and weaker than it should have been. Others were not taken at all.
“None of this is said to have been guided by tactical considerations or client instructions. Much of it is unexplained. We have no satisfactory explanation for any of it.
“It may be that none of the criticisms would, by itself, have been weighty enough but their cumulative effect convinced us that the conduct of the defence case at trial was so deficient that these convictions could not stand.”
This was evidence that, had it been put to the jury, would have contradicted or at least undermined the girl’s evidence and the prosecution case.
The court said: “In particular, they would cast serious doubt on the alleged link between the suicide [attempt] and any conduct of the appellant.”
There were also aspects of bad character evidence that were not pursued. The court said Mr Ahmed’s original barrister had been contacted and asked to explain why they were not.
“The trial advocate has not explained this. We are unable to understand it,” said Warby LJ.
As a result, the court granted Mr Wainright’s application to adduce fresh evidence, allowed the appeal and quashed the convictions.
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