Almallah, R. v [2025] EWCA Crim 433 (28 March 2025)

Neutral Citation Number: [2025] EWCA Crim 433 Case No 2024/01523/B4 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT READING (HIS HONOUR JUDGE NAWAZ) [T20237031] Royal Courts of Justice The Strand London WC2A 2LL 28 March 2025 B e f o r e : LORD JUSTICE WARBY MR JUSTICE GOOSE HIS HONOUR JUDGE PATRICK FIELD KC (Sitting as a Judge of the Court of Appeal Criminal Division) ____________________ REX - v - ELIAS ALMALLAH ____________________ Computer Aided Transcription of Epiq Europe Ltd, Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ Mr D Almeida appeared on behalf of the Applicant ____________________ HTML VERSION OF JUDGMENT (APPROVED) ____________________ Crown Copyright © Friday 28 March 2025 LORD JUSTICE WARBY: This is a renewed application for leave to appeal against conviction following refusal by the single judge. The applicant is Elias Almallah (now aged 23). On 26 March 2024, following a trial in the Crown Court at Reading, he was convicted by a jury of a single count of murder. He was later sentenced to life imprisonment, with a minimum term of 22 years and nine months. The Facts At around 8.45 pm on 2 October 2022, Kyron Lee (aged 21) was attacked by a group and killed. He was riding his bicycle on Earl's Lane, Slough, when it was struck by a stolen Volkswagen Golf car containing five occupants. Four of the occupants got out. Each was armed with a machete. Mr Lee ran off, but they chased him, caught up with him and attacked him. They attacked him a second time in Waterman Court. In the course of these attacks Mr Lee sustained multiple stab wounds from which he sustained blood loss which turned out to be fatal. The Golf arrived in Waterman Court. The attackers got into it and they were driven away. The car later came to a halt in Stour Close, where all the occupants got out and fled. Four went in one direction and one in another. The Trial By the time of the trial, three individuals, Yakoub Mussa, Khalid Nur and Mohammed Elgamri, had all been convicted of the murder. Mussa had pleaded guilty and the others had been convicted by the jury at a trial in June 2023. The prosecution case was that these were three of the four attackers. Their convictions were before the jury. So was that of another man, Mohammed Abdulle, who had not been present at the attack but had pleaded guilty in August 2023 to helping to plan and implement it. The applicant had left the jurisdiction after the murder and had remained away throughout the first trial. On his return he was arrested and charged. The prosecution case was that the applicant was the fourth attacker – the one who had headed away from the scene alone. That individual was said to be the tallest of the attackers and became known at the trial as "the yellow man". That was due to colour marking used by the prosecution to identify the various individuals shown on the CCTV. The applicant was tried with a single co-defendant, Fras Seedahmed, who was said to have been the driver, identified in the same way as "the blue man". The prosecution alleged that the applicant and Seedahmed had committed the murder as part of a joint enterprise with the others we have named to attack Mr Lee with the intention that he should be caused at least really serious harm. The main features of what took place were not in dispute. It was accepted that the occupants of the car were responsible for the death of Mr Lee. There were two issues for the jury in respect of the applicant. The first and main issue was identification: were they sure that he was "the yellow man"? Secondly, if so, were they sure that he had the intention to kill or at least that really serious bodily harm should be caused? To prove its case, the prosecution advanced what was mainly a circumstantial case in reliance on multiple strands of evidence. The principal focus was CCTV evidence and cell site and phone analysis. The CCTV evidence was adduced via Casper De Wagt, a civilian police staff CCTV investigator; and cell site analysis was presented by two expert witnesses. In more detail, the evidence included the following: (1) Evidence of events and associations before the murder There was evidence that the participants, including the applicant, were part of one group of youths in the area, and that Mr Lee (the victim) was a member of another group. An events schedule was before the jury which was said to show tit-for-tat incidents over the period in the build-up to the attack, coupled with communications between the accused in connection with those incidents. Phone call data not only showed a wealth of contact between the applicant and his co-accused over many months, there was also evidence of continued phone contact and physical association between them in the weeks that preceded the murder. In particular, there was evidence of their connection with a small cul-de-sac car park in Ashmount Crescent where the stolen Volkswagen Golf was parked. The prosecution identified this as a "pre-murder meeting point". The car was identified as the "mission car". CCTV from this location showed a number of visits by the applicant. On 8 September the car, which had been stolen on the 4 th , was seen on CCTV in that car park. The applicant was then seen to leave the car park on foot in the company of Abdulle and Nur. Two days later the car and the same three individuals were observed again in the same location. Phone records from 1 October 2022 (the eve of the murder) and other evidence were said to demonstrate that three of the group, Elgamri, Nur and Abdulle, had arranged to meet up that evening at a chicken shop, from which they made calls to Mussa, Seedahmed and the applicant. Between 6.00 and 6.25 pm, Nur made repeated attempts to call the applicant before getting through. They then had a conversation for over a minute. Shortly after 7 pm, Abdulle, Elgamri and Nur were seen on CCTV to approach the car park on foot and, it was alleged, started to prepare the Golf for use in the attack. At around 7.30 pm, Nur called the applicant who called him back and they spoke for 20 seconds. A further call was made by Nur to the applicant at 7.50 pm, when the two spoke for 34 seconds. These and other calls between the co-accused were said by the prosecution to show "a compelling pattern of calls to and from those about to engage in the attack". At around 10 pm that night, the applicant was seen on CCTV at the Ashmount Crescent car park with Abdulle and Nur. They met up and were seen to shake hands before going their separate ways. The applicant accepted that he was correctly identified in this recording. (2) Comparison CCTV of "the yellow man", as he walked towards the car on the day of the murder, was said to show a person of the same build, height and manner of walking as the applicant. The jury were invited to compare this footage with clips which were admitted to be of the applicant and with still photographs of him posing with some of his co-accused. Mr De Wagt gave evidence that he had calculated that the applicant was the tallest of the accused. He based his opinion on measurements taken from immoveable objects such as poles or fences. (3) Evidence of events and associations after the murder There was CCTV of the Golf being abandoned in Stour Close. A figure was seen to open the boot and attempt to fix some cloned number plates to the car, before the various participants fled the scene in the way that we have described. The applicant's fingerprints were later found in the boot of the car. During the evening of 2 October, there were calls from Seedahmed, Abdulle and Nur to the other co-accused. These included calls to and conversations with the applicant which lasted over one minute and 30 seconds. On 3 October, the police issued a press release. The phone records showed frequent calls between the accused that morning. These included many calls between the applicant, Abdulle and Nur. At around lunchtime that day, there was a meeting between these three that became known as the "Salthill Park meeting". Within an hour of that meeting, the applicant and his brother had booked themselves on a one-way flight from Gatwick to Madrid, departing the following evening. Abdulle and Nur then booked one-way flights to Marrakech. Mussa was arrested at Heathrow, attempting to board a flight to Somalia. The others were said to have gone on the run. The prosecution invited the inference that the calls and the meeting represented discussions about the murder and the formulation and execution of a plan to flee the jurisdiction. The summary we have given is selective. It is illustrative of the evidence relied on by the prosecution, but it is far from being a comprehensive account. At the close of the prosecution case, counsel for the applicant submitted to the judge that there was no evidence of a sufficient quality for the jury, properly directed, to convict. There was insufficient evidence to establish that the applicant was "the yellow man". The judge ruled that there was a case to answer. He reminded himself of the test in the well-known case of Galbraith , and that it was not his job to usurp the functions of the jury. The judge concluded that there was a case fit for the jury to consider. He said that they would be directed to reject evidence of which they were unsure. The totality of the evidence needed to be considered, not just one specific item. So far as the quality of the evidence was concerned, the fact that there might be contradictions as to height did not render the totality of the evidence suspect or tenuous. Neither the applicant nor Seedahmed gave evidence. The judge proceeded to sum up the case to the jury. In doing so, he gave them legal directions on, among other things, the way they should approach the Crown's reliance on circumstantial evidence, their approach to the expert evidence, and how the silence of the defendants might or might not be relevant to their deliberations. The Proposed Appeal The applicant challenges the safety of his conviction on two grounds. First, he submits that the judge should have upheld the submission of no case to answer. Secondly, and in the alternative, he argues that the judge's summing up contained a misdirection about the absence of evidence to contradict the Crown's case. The renewed application has been argued before us today by Mr Almeida, who was the applicant's junior counsel at the trial. He has appeared pro bono . He has advanced the applicant's case with vigour and determination, and we are grateful for his assistance. However, he has not persuaded us that there is arguable merit in either of the proposed grounds of appeal. Ground 1: The Ruling that there was a Case to Answer The arguments advanced in support of this proposed ground of appeal are in essence those which the judge rejected. The headline submission focuses on alleged flaws in the quality of the circumstantial evidence relied upon. It is said that the prosecution evidence was so inherently weak or contradictory that there was nothing from which a reasonable jury could infer with certainty that the applicant was "the yellow man". In support of that submission, five main points were made in the written grounds: 1. The CCTV could not be a basis for identifying the applicant as "the yellow man". Mr De Wagt had conceded that it contained nothing identifying him as such. 2. Although the prosecution had obtained a mass of CCTV footage, there was not a single second that showed the applicant in or around any of the locations of interest on the day in question. 3. The evidence of Mr De Wagt that the applicant was the tallest of the suspects was not supported by scientific evidence, or any measurements, and was indeed contradicted by other evidence served by the prosecution which showed the other accused to be of similar or greater height. 4. The mobile phone evidence proved no more than innocent association. It was incapable of establishing the applicant's identity as "the yellow man" or even his presence at the scene at the material times. 5. Mere association with those convicted in the first trial was not capable of supporting any inference as to the applicant's identity as "the yellow man". It was submitted to us today that there was a high risk of conviction on the basis of mere association. Today, Mr Almeida has added a further point to do with a fingerprint found on the boot of the car. He has submitted that when viewed in its proper context this was a point of no real value from which no safe inference could be drawn. The single judge's assessment was this: "… the judge had the correct legal test in mind – he set out the relevant law … – and, although the prosecution case against you was circumstantial, there was clearly evidence upon which a jury properly directed could convict on the basis that you were the man identified as 'the yellow man' on the CCTV footage. That included evidence of your height, build and manner, the pattern of your telephone calls, other evidence of association with your co-defendants who had been convicted of the murder (including being seen with them at the Ashmount Crescent Car Park on 10 September and 1 October 2022), and evidence of the events following the murder. That evidence was set out succinctly by the judge in his Ruling … and, at greater length, in … the Crown's Response to the Grounds of Appeal. You raise issues concerning various parts of that evidence; but as the judge said, these were submissions on the available evidence that were matters for the jury." We find ourselves in agreement with that reasoning and would only add the following: 1. The foundation for the defence submission was, and remains, the quality of the prosecution evidence. It is a relatively rare case in which the court will find itself obliged to withdraw a case from the jury pursuant to that limb of the Galbraith test. It is normally proper to leave it to the jury to assess the quality and reliability of the evidence adduced. 2. In this case, although there was no direct evidence of identification of the applicant as "the yellow man", there was abundant evidence that connected him closely to several individuals who were known to have taken part in the murder and to the car that was used. 3. In a case where circumstantial evidence is relied on, the question at the halfway stage must always be whether the evidence as a whole is capable of justifying a verdict of guilty. It is commonplace that a conviction based on multiple strands of evidence may be safe, even if none of the strands is sufficient individually to support a conviction. 4. The critique advanced on behalf of the applicant focuses on alleged weaknesses in some of the strands of evidence relied on by the prosecution. Some of these weaknesses were conceded in the course of cross-examination. The critique, however, ignores, for instance, the evidence of the Salthill Park meeting and the way that the co-accused fled the country. 5. The applicant's critique also fails to confront the striking pattern of the phone calls and other associations which could in all the circumstances be reasonably considered to be highly incriminating. 6. The further submissions advanced today about the fingerprint in the boot of the car seem to us to be classic jury points, and nothing more. 7. Looking at the matter in the round, we see considerable force in the submission of the Crown that the evidence that the applicant was "the yellow man" was extremely strong. We are satisfied that the judge was not arguably wrong to dismiss the submission of no case to answer and to leave the case to the jury for their assessment. Ground 2: The Alleged Misdirection The written grounds of appeal submitted as follows: "The learned judge was wrong to state, as part of his directions, that there was no evidence which contradicted the prosecution case. Throughout the prosecution evidence, there were ample challenges to evidence by the defence including the use of the prosecution's own documentary evidence against the live evidence of prosecution witnesses." It was further submitted in the written grounds that the judge's directions to the jury "effectively removed from the jury's mind the defence case that was put robustly to prosecution witnesses." The grounds did not identify the passage (or passages) relied upon in support of this point. It was left to the court to scan the summing up to identify that material. The single judge evidently thought, as did we on reading the papers, that the passage complained of was one that used the word "contradict" – or some variant of it. There are two passages in the summing up that mention the absence of contradictory evidence. The first was contained in the judge's direction about the applicant's silence at trial, where the judge said this: "The silence of the [applicant] is relevant to your consideration for the following reasons: First, the issue for you is whether the [applicant] is guilty based on the evidence adduced by the Crown. Secondly, there is no evidence before you from Fras Seedahmed or Elias Almallah which contradicts, undermines or explains the evidence adduced by the prosecution in support of the case that each is guilty." This direction was in standard form and entirely accurate. Neither defendant had gone into the witness box to give evidence to contradict, or to undermine, or to explain the evidence which the prosecution had called. Nor, for good measure, had either of them adduced any other defence evidence. The applicant's counsel are correct to say that they had challenged the prosecution evidence and that to that end they had drawn on the prosecution's own documentary evidence. The judge's legal direction was not at odds with that. Nor can the jury have thought that it was. The jury heard the evidence and the cross-examination over many days. In a careful summing up of the evidence, the judge reminded them in some detail of the defence case and the way that it had been put to the prosecution witnesses, including, but not limited to, the experts. Multiple illustrations of this point could be given. But in the light of what we have said about ground one, it is appropriate to mention one aspect in particular. The judge summed up the evidence of Mr De Wagt. He reminded the jury that he was not put forward as an expert or as an identifying witness. He identified the defence case, namely that this witness' evidence was "of little, if any, assistance as regards the identification". The judge gave details of the defence challenge. He said this: "The garments and footwear are commercially mass-produced items. They are readily available in the market and items which many young people wear. Indeed, the one item produced before you was purchased by the prosecution and there is evidence that another young man was wearing a similar jacket. There is nothing unique, say the defence, about any one item that you have been referred to." The judge went on to give a direction about Mr De Wagt's evidence as to height. He identified the defence case that Mr De Wagt's evidence was not supported, but contradicted by the documentary evidence, and he identified the chart on which the defence relied. The second reference in the summing up to the absence of contradiction came at the very end of the judge's summary of the evidence. He concluded by emphasising that the account he had given was only a summary and that the jury were not constrained to considering matters that he had mentioned, by advising them to keep in mind all the evidence and the submissions of counsel and by reminding them of the burden and standard of proof. Having done that, the judge said this: "The defendants are entitled to make the prosecution prove its case against him and that is what they have done." He went on, according to the transcript, to use these words: "But, of course, there is no evidence which has been adduced by the prosecution which in any way contradicts or explains the evidence relied on by the prosecution from the defendant." On the page, this sentence looks garbled. The sense of it is, however, perfectly clear. It is no more than a repetition of the point that the judge had properly and clearly made in his legal directions. Those legal directions had been reduced to writing and they were taken away by the jury into retirement. There is, therefore, no reasonable basis for supposing that the jury may have been confused or misled by this passage. In the light of these considerations, our conclusion had been that the short answer to this proposed ground of appeal was that the judge never made any statement of the kind complained of, and that it was fanciful to suggest that the judge had effectively removed the defence case from the jury's consideration. This morning, it has emerged that the intended submission was a different one, with reliance being placed on a passage in the summing up relating to the expert evidence. On page 21 of the transcript, the judge said this: "This is, ladies and gentlemen, a trial by jury and not a trial by experts. While you may accept or reject expert opinion evidence, you must not substitute your own opinions for those of the expert. It is a matter for you but you may reject the evidence of an expert even where, as in this case, it is largely unchallenged, but you may feel you need good reason to do so. Where there is a challenge then you must resolve that in the normal way and you decide whether the evidence is reliable or not." Complaint has been made by Mr Almeida about the words "largely unchallenged". They are said to give the impression to the jury that there had been no substantial challenge to the expert evidence, namely the cell site analysis of Mr Robinson, when in fact there had been a substantial and sustained challenge. With respect to counsel, we have been unable to see any reasonable objection to the language chosen by the judge. We note that no objection was raised at the time. Nor, as we have observed, was this a point identified in the proposed grounds of appeal. We mention these points not by way of criticism, but as further indications that support our conclusion that this proposed ground of appeal lacks any substance. Having considered this point in the context of the summing up as a whole the position, as it seems to us, is that the judge gave correct directions as to the approach to be taken to the expert evidence and then summarised the evidence and the challenges to it in an entirely fair manner. In our judgment, this proposed ground of appeal is entirely without merit. Accordingly, and for these reasons, the renewed application for leave to appeal against conviction is refused. __________________________________ BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII