Imran Aslam’s Trial and Appeal

The first ground is that the Judge erred in admitting the evidence of Zak Uddin under S78 PACE 1984 and submitted that:

The exercise of the Learned Judge’s discretion was wholly (Wednesbury) unreasonable; and The Learned Judge omitted to take into consideration all relevant matters in exercising his discretion.

The Defence relied upon the following matters:

In the context of the entire history of the proceedings, it was inappropriate, unfair and unconscionable for the Prosecution to rely upon Zak Uddin. As mentioned in detail above, everything pointed towards the fact that the Prosecution did not believe Uddin to be a witness of truth, and was skeptical of his reliability, motives and indeed role in the events of that fateful night. This was demonstrated by the fact that he was not called upon in neither the first or second trials, as a Prosecution witness.

Furthermore, when the Court of Appeal was ruling on the appeals of the Defendants in the first trial, it was asked whether the Prosecution had any further Prosecution witnesses to rely upon. They made no mention of Uddin, and in fact, stated that there were no further witnesses available. This led to the acceptance of guilty pleas from Hassan Mir and Usman Butt as secondary parties. There were lengthy and complex legal arguments about whether there was any possibility of a re-trial.

The approach adopted by the Prosecution in relation to Aslam, was wholly inconsistent with what had occurred prior to that. Uddin had named Hassan Mir (who was wearing a hoodie on the night) as the person who stabbed Hayder Ali. This account was corroborated to a degree in the statement of an independent witness, Gary Lan, who informed the Police that he had seen the attack on Hayder Ali. Gary Lan stated, he saw a male in a hoodie, holding a long thin blade, make punching motions towards Hayder Ali, who then screamed out in pain and fell to the ground. Despite the fact that Uddin named Hassan Mir as the principal stabber of Hayder Ali, they did not put forward Uddin as a Prosecution witness (for the purposes of a re-trial for Hassan Mir) but instead accepted an agreed guilty plea on the basis that Mir was a secondary party;

No proper reasoned decision was ever put forward by the Prosecution as to why they suddenly wished to rely upon Zak Uddin, in Imran Aslam’s trial. The Defence made a request for documentation that could establish and justify the reasons behind the Prosecution’s decision to call upon Uddin, but no such documentation was presented;

By calling upon Uddin, the Prosecution was introducing evidence that had not been tested before, and left Defence Counsel with the unenviable task of having to test Uddin’s account in relation to 11 people whom he had implicated in his Police interviews;

The Bhatti brothers were incapable of being called as witnesses after the Court of Appeal ruling, however, had this not been the case, they would have been able to testify to Uddin’s involvement in setting up the events, that led to the murder of the Mohammed and Hayder Ali. It would have been revealed to the Jury that Uddin was an accomplice. The Prosecution never accepted that Uddin ought to be treated as an accomplice, despite overwhelming evidence that he was. This was both unfair and wrong.

Following Defence Counsel’s submissions, as detailed above, the Court of Appeal referred to matters pointed out by Prosecuting Counsel, Mr Aylett QC, in relation to their decision to call Zak Uddin as a Prosecution witness. Reference was made towards the fact, Uddin gave his account in a Police interview almost immediately after the events in question, and it was not the appellant’s case, that Uddin’s evidence had been infected by anything done by the Bhatti brothers.

Much was made from the fact that Uddin attended at his own volition, as he was seeking justice for the Ali brothers (although in evidence he conceded he knew he was a suspect, wanted for questioning by the Police). Mr Aylett also referred to a number of pieces of evidence which tended to support the general account of Uddin, with regards to the events on Fircroft Road, in that those he had named, had pleaded guilty to the murders, violent disorder and conspiracy to commit GBH.

As such, the Court of Appeal ruled, the trial Judge was entitled to reach the conclusion that a reasonable Jury could properly find what Uddin had stated to Police regarding the involvement of the appellant both credible, and reliable. The Court of Appeal did not accept the appellant's position being; the Judge was wrong not to accept that the only proper conclusion that Uddin was an accomplice. They stated, in any event, it would not undermine their conclusion, that a reasonable Jury could properly find what Uddin had stated to the Police, to be both accurate, and credible.

The Court of Appeal rejected claims that it was unfair for the Defence to be forced into the position of having to deal with untested evidence, in relation to up to 11 other Defendants, on the basis that Counsel had been involved in the first trial. In addition the Counsel had been involved in the preparation of legal arguments regarding the use of Uddin, and as such was familiar with the case to such degree, it did not cause him difficulty. They also made reference to the fact that Mr Dein made no application for more time to prepare.

In refusing Ground One of the appeal, despite the arguments raised, the main reason was tantamount to the simple fact, they believed a reasonable Jury could rely on the evidence of Uddin as accurate, and truthful.

The second ground of appeal is that the Judge erred in allowing Uddin to be treated as a hostile witness.

Following Uddin’s immediate admission under oath, stating he lied about Aslam’s involvement, and he had originally implicated Aslam because he held a grudge against him after Aslam slept with his girlfriend, the Prosecution made an application to have Uddin treated as a hostile witness.

It was submitted by the Defence that in evidence, Uddin had explained that he had implicated Aslam at a time when he himself believed he was at risk of being charged with the murders, and at the time of making the ruling to treat Uddin as a hostile witness, Uddin had not signed a witness statement. As such, it was submitted that the Judge was wrong to rule in favour of the Prosecution application, to treat Uddin as a hostile witness.

On the basis that Mr Dein accepted that Ground Two was linked to Ground Three, they held that it could not be argued that the Judge’s decision was wrong, and it was the only decision that could have been made.

The third ground of appeal is that the Learned Judge erred in admitting Zak Uddin’s hearsay interview assertion, (in that Hayder Ali stated Aslam had a knife in the build-up to events on Fircroft Road) as the truth of its contents.

By the time this ruling was made, it was clear that Uddin was an unreliable and hostile witness; he had denied any recollection of the evidence in question and had given evidence to the effect that he had a grudge against Aslam. In addition, he told the Police what he thought they wanted to hear, in order to avoid being charged for the murders.

The Judge refused to exclude the Prosecution’s belated hearsay application under section 78 PACE 1984, despite submissions that the evidence in issue could not fairly or properly support Uddin’s Police interview account. In admitting the evidence, the Judge failed to give an adequate direction to the Jury, and failed to direct the Jury in the dangers of relying upon the statement alleged to have been made by Hayder Ali.

Uddin’s hearsay assertion was not capable of supporting his testimony, since it was not independent evidence, and there was an over-riding need for extreme caution before acting upon Uddin’s hearsay assertion.

Furthermore, when directing the Jury, the Judge misdirected by stating:

“..exactly the same limitations apply to what Zak Uddin said to the Police about what Hayder Ali said to him, as were applied to the statement of Mr (Umer) Butt”.

It was inconceivable that the Judge should have directed the Jury about the hearsay evidence of Hayder Ali, and that of Umer Butt, on equal terms. Umer Butt gave evidence about circumstantial matters, but should the Jury believe Uddin’s hearsay assertion, it was an almost certain outcome that Aslam would be convicted.

This Ground was rejected on the basis, the Judge had warned the Jury about the dangers in accepting Uddin’s evidence, and his directions regarding what Uddin told the Police about what Hayder Ali had said to him, needed special consideration. A little later, the Judge once more reminded the Jury to be especially careful about what Hayder Ali had allegedly said. It was the view of the Appeal Court, there was no reason for the Judge to have said anything further, and the real issue was Zak Uddin’s credibility.

The fourth ground of appeal is that the Judge misdirected the Jury, when summing up in relation to Zak Uddin.

Defence Counsel made reference to the case of Makanjuola [1995] 2 Cr App R 469, which permits circumstances in which a trial judge should give a special warning about the evidence of a particular witness, when summing up. Furthermore, where a witness is shown to have lied or bears a grudge against a Defendant, a stronger warning may be appropriate.

It was submitted that there was sufficient evidence to treat Zak Uddin as both a lying and unreliable witness, and in giving evidence he stated, under oath, he held a grudge against Imran Aslam. As such, it was argued, such case warranted the strongest possible cautionary warning, and the Jury should have been directed to treat the evidence of Uddin with severe caution.

It was further submitted that the Prosecution’s failure to accept Uddin was an accomplice, meant that the concerns expressed by the Defence about Uddin’s evidence were undermined. This led to the Judge giving a muted cautionary direction to the Jury, and the Jury was invited to deal with Uddin’s evidence with ‘particular care’.

In addition to this, the fact was there was no evidence which could corroborate Uddin’s testimony, and it was submitted that the Judge should not invite the Jury to attempt to find any corroborating evidence. Instead, the Judge directed the Jury, that the pleas of Hassan Mir, Usman Butt and Noor Kayani were capable of corroborating Uddin’s testimony, which for the reasons stated above, was not a true position.

It was submitted that the Judge’s summing up was further prejudiced by the fact, he failed to identify the strong body of evidence to suggest that Uddin was implicated, and therefore had a motive to lie.

1 - This evidence includes the fact that by his own admission, Uddin was standing over Hayder Ali, as he was killed and he had Hayder Ali’s blood on his shoe.

2 - Uddin was seen in possession of a weapon in the build up to events in Fircroft Road and lied to Police about this.

3 - There is CCTV evidence from a passing bus that places Uddin on Trinity Road, in the company of the Bhatti brothers, a hour half before the murders, when it is said he was attempting to lure the Bhatti Group towards the Tooting Group.

4 - Telephone evidence showed Uddin to be speaking on the telephone to Quadeer Khan, the man who is said to have ambushed the white van in his own white Metro, minutes before the attacks.

5 - The fact that by his own admission, Uddin left the scene in a car with Hassan Mir, who he claimed had been the principal stabber.

6 - The fact that when Uddin got home, Quadeer Khan was waiting for him.

7 - The fact that minutes before the fatal attacks, Uddin was seen liaising with Noor Kayani via mobile telephone. This is at the exact time the murders were alleged to have been set up, as well as the ambush of the van (by the white Metro) being plotted.

NOTE: All above pointers are indicative of major flaws in this case.

The Court of Appeal ruled a full accomplice direction was not appropriate, as this was not a case whereby the accomplice was giving evidence against the Defendant, but in fact, exonerated him. Once again, what the Jury had to consider was whether what Uddin had told the Police was accurate and truthful, taking into account all of the evidence, and that a traditional hostile witness direction, would in the view of the Court of Appeal Judges, give insufficient weight to section 119 of the Criminal Justice Act 2003.

On 09 February 2011, the Jury requested clarification of how they were to treat Uddin’s evidence if they regarded him as a “questionable” witness, but the Judge failed to direct the Jury, in that should they find Uddin’s evidence to be manifestly unreliable, they should disregard it altogether. In addition, the Judge did not direct the Jury that above all else, there was an absolute requirement for the Jury to be sure of Uddin’s assertion, in that Aslam stabbed Hayder Ali, before they could act upon Uddin’s evidence.

The Court of Appeal stated that the Judge cautioned the Jury with regard to relying on Uddin, which was evidenced by the fact that after many hours of deliberations, the Jury asked a question, which indicated they were in discussions over the issue of reliability, regarding Zak Uddin. It was inconceivable that the Jury did not understand they should approach the evidence given by Uddin in interviews with the Police, with great caution.

Again, this matter came down to whether the Jury felt Zak Uddin was a reliable and truthful witness, and the Court of Appeal did not criticise the Judge for not giving further directions, about the lack of independent supporting evidence; that Aslam stabbed Hayder Ali. They went as far as stating there was no evidence, but there was however evidence capable of supporting much of what Uddin had told the Police, in his interviews.

Imran Aslam was acquitted of the murder of Mohammed Ali. However, in relation to Count Two; the murder of Hayder Ali, the Jury came back with that question after 23 hours of deliberations, which would indicate the main focus of their discussion and concerns; Uddin’s evidence.

The fifth ground of appeal is as a result of Prosecuting Counsel referring to the evidence given by Defendants in the first trial, without any justification for doing so, which rendered the conviction of Imran Aslam, as unsafe.

In essence, Aslam unwittingly adopted the incorrect assertions made by Prosecuting Counsel in cross-examination, that Hassan Mir and Usman Butt had stated he stabbed the Ali brothers, and he knew they blamed him for the stabbing, as part of their defence at the first trial.

This was linked to what Uddin had said in his Police interview, namely Aslam had stabbed Hayder Ali. Aslam had no way of knowing what had been said in evidence previously, but stated he had heard something like that.

Defence Counsel made an application to discharge the Jury, which was refused. As a result, Aslam refused to return to the witness box. In consultation, when Aslam informed his Defence Counsel that he did not want to continue giving evidence, he did not advise Aslam either way, in relation to whether or not he should continue giving evidence.

In his closing speech to the Jury, Prosecuting Counsel once again, and without prior warning or consent by the Defence, made reference to his earlier mistaken assertion in the cross-examination of Aslam.

The basis of this ground of appeal is that these matters should never have been put to Aslam, but in doing so caused immeasurable prejudice. This was then further compounded by the conduct of the Judge and Prosecuting Counsel, by not effectively dealing with the prejudice.

This Ground is concerned with the trial Judge’s refusal to discharge the Jury after the prejudicial material (referred to above) was put to Aslam in cross-examination.

It was submitted that the Judge was wrong not to discharge the Jury, and his failure to provide reasoned judgement, is indicative of the fact that he failed to focus his attention on the very issues, that underpinned the exercise of his discretion.

Such was the severity of this failing, that it could only render the conviction unsafe, on the basis that any prejudice caused, could not be suitably dealt with, in the Judge’s summing up. In fact, when addressing the Jury on this issue, the Judge did not go into any depth, and stated that what Mr Aylett QC had put to the Defendant, was factually inaccurate. The Judge merely stated that what had been said in error, should simply be ignored.

The Court of Appeal accepted that Mr Aylett’s questions were factually inaccurate and the true position was: In the first trial Hassan Mir gave evidence stating; that after the Fircroft Road incident, Aslam told him he had stabbed two people. Usman Butt’s evidence was such that Aslam had thrust a knife into his hand towards the end of the Fircroft Road incident, and Butt had thrown the knife away as he left the scene — thereby implicating this was the murder weapon.

Counsel for Aslam made an application to have the Jury discharged, and when ruling on this matter, he accepted that Mr Aylett QC should have given some indication to the Defence, that he would be introducing this line of questioning. The trial Judge stated that he could adequately deal with these matters by addressing the Jury.

The application to dismiss the Jury was refused, but Defence Counsel’s fears came to fruition, when the trial Judge addressed the Jury on this matter. He failed to specifically state, what Mr Aylett QC had put to the Defendant in cross-examination, was actually factually incorrect. He merely stated, that the Jury should simply put it out of their minds.

The Court of Appeal upheld the decision made by the trial Judge, and in doing so, they stated that they accepted, that whilst the incident was unfortunate and was one that should never have occurred, mistakes happen from time to time. They stated, these mistakes can easily and effectively be remedied by prompt and appropriate action, by the trial Judge. The Court of Appeal agreed that the trial Judge could effectively deal with this issue, when addressing the Jury and as such, the decision not to discharge the Jury was the correct one.

The Court of Appeal went further to state that in their view, any prejudice that was suffered by Aslam, was caused wholly or substantially by his decision to leave the witness box, and not to return and continue his evidence.

Ground Seven concerns submissions that the conviction was unsafe, following the discovery of telephone calls between Zak Uddin, and the Ali family in 2007.

The Defence sought to argue that this was highly prejudicial, given what had happened during the first trial. Leave to Appeal was not granted by the single Judge, and leave was further refused by the full Court, following an oral application for leave to appeal.

The Court of Appeal referred to the fact that Imran Aslam had been sentenced as a principal in this case, which is why he had received a higher tariff than those sentenced upon a guilty plea, on the basis that they had been secondary parties to the murder. They did, however, accept that the 20-year term passed down by the trial Judge was mildly excessive, subsequently reducing the sentence by 2 years, to 18 years imprisonment.

Imran has always admitted that he was in and around the Upper Tooting Road area for approximately 1hr, but left the area shortly before midnight, in order to purchase some food on the way home. Aslam vehemently denies any involvement in the murders and has maintained his innocence throughout.