Sahail Ahmed v. His Majesty’s Advocate [2024] HCJAC 14

Note of appeal against conviction:- The appellant proceeded to trial at the high court, along with his two brothers, on an indictment including two charges of attempted fraud and wilful fire-raising. During the course of the trial the Crown withdrew the charge of wilful fire-raising. In due course the appellant was convicted of a charge of fraud (charge 1) in that he along with his brothers formed a fraudulent scheme to obtain money by “…wilfully setting fire to premises…submitting a false insurance claim in relation thereto…in furtherance of said scheme (a) wilfully set fire to …149 Gallowgate, Glasgow, (b) pretend to … Welsh and White Insurance Brokers … that said fire was started by unknown ... means in the full knowledge that this was false, and (c) induce an employee of the said Welsh and White Insurance Brokers to initiate a claim under the insurance policy for the said premises and did thus attempt to obtain funds to which you were not entitled by fraud.” One of the appellant’s brothers (Kasim Ahmed) was convicted of the same charge in the same terms and the appellant’s other brother (Adum Ahmed) was acquitted of the charge. Subsequently the appellant and Kasim Ahmed were sentenced to 2 years imprisonment. Both the appellant and Kasim Ahmed appealed against their convictions and were both granted interim liberation, however, Kasim Ahmed’s appeal failed at first and second sift and accordingly he would be required to serve the remainder of his sentence. Prior to being taken into custody, Kasim Ahmed swore an affidavit in which he took sole responsibility for the offence and said that neither of his brothers knew of his intentions. The appellant was thereafter allowed to amend his grounds of appeal (the remaining grounds also having been refused at the first and second sift) to include an appeal under section 106(3)(a) of the Criminal Justice (Scotland) Act 1995 based on the evidence contained in the new affidavit and Kasim Ahmed gave oral evidence at the appeal hearing. The Crown conceded that in relation to the issue of whether a reasonable explanation had been provided as to why the evidence had not been heard at trial, it was accepted Kasim Ahmed was the appellant’s co-accused and was not a compellable witness for the appellant. The issue remaining for the court in determination of the appeal was whether Kasim Ahmed’s evidence was capable of being regarded by a reasonable jury as credible and reliable and if it was likely to have had a material bearing on a critical issue in the trial. Here the court refused the appeal. The court described Kasim Ahmed’s evidence as “highly unsatisfactory with many and obvious discrepancies in his various accounts and conflicts with other evidence in the case” and the court had little difficulty in rejecting it as it was clear that he was seeking to assist the appellant, for example, by attempting to minimise the time the appellant spent at the premises prior to the fire. The trial judge described the circumstantial case against the appellant as “highly persuasive” and the court here agreed with that assessment and was satisfied that the evidence of Kasim Ahmed was not capable of being regarded by a reasonable jury as credible and reliable and there had been no miscarriage of justice.