In this article, Phoenix Gay Xue Ke considers Walid Habib's application to the CCRC and its refusal to investigate his alleged wrongful conviction and imprisonment. She argues that if the CCRC was serious about alleged wrongful convictions, then, surely, it must call experts to review key evidence. Moreover, that the way that the CCRC is currently structured and operates demonstrates a keen deference to the judge’s indictment, rather than a commitment to justice for alleged innocent victims of wrongful convictions. Her conclusion is stark and damming: 'How then, can we trust this body to uphold principles of justice, if it fails to even take the first step of ascertaining the veracity of evidence?'
Mr Walid Habib, 44, pleaded guilty to possession of a prohibited weapon contrary to S5(1)(b) of the Firearms Act 1968 in the Crown Court of Chelmsford on 28 April 2014. Subsequently on 4 June 2014, Mr Habib was convicted by a jury for, inter alia, possessing controlled drugs of Class A and B contrary to the Misuse of Drugs Act 1971. On 4 July 2014, Mr Habib was sentenced to a total of 15 years’ imprisonment. The alleged criminal incidents occurred in two locations, initially at Danes Road, Romford, and, subsequently, at a unit in Stewarts Farm, Ongar. Mr Habib’s case was joined by six other co-accused and he received the highest imprisonment sentence amongst all. Mr Habib staunchly maintains his innocence for the crimes that he was convicted of. He also believes that procedural miscarriages of justice have led to him receiving an unfair trial.. However, all attempts to make his case heard in both the appellate courts and the Criminal Cases Review Commission (CCRC) were rejected.
Prosecution’s case
In order to fully understand Mr Habib’s appeals, we need to first examine the Prosecution’s case against Mr Habib. This can be broken down into three tranches.
Danes Road
On the first tranche, the Prosecution argued that because the police found Mr Habib and another man working on a stolen car in a unit at Danes Road, Mr Habib was arrested. About four weeks later, the police returned to the unit at Danes Road and found over a dozen stolen and cloned vehicles. Amongst others, these included lock-cutting devices, a glass-breaking device and a radio frequency detector. A month later, on 17 April, one of Mr Habib’s co-accused (Mohammed Nadeem) was arrested as 22 wraps of cocaine was found in his vehicle, Citroen Berlingo M666.
Stewarts Farm
On the second tranche, the Prosecution argued that Mr Habib had rented a unit at Stewarts Farm days after the Danes Road search, alleging that Mr Habib had used various false names to rent units at Danes Road and Stewarts Farm. The Prosecution added that upon a police search made at the Stewarts Farm unit, over a dozen stolen vehicles, 60/70 cannabis plants, 25 grams of cocaine were discovered. Significantly, firearms and ammunition were found in the Citroen Berlingo M666. A month after the search, the Prosecution raised evidence of police officers finding a NATO gas canister in Mr Habib’s home.
The evidence that was used by the prosecution to obtain the conviction is as follows:
One fingerprint on a DVLA document indicating a car which was legally bought by Mr Habib.
Expert evidence of police officers’ on-site investigations and searches.
Eyewitness Testimonies of Nigel Chambers and police officers.
Defence’s case
At trial, Mr Habib claimed that he worked as a vehicle modifier with special expertise in installing sound systems. Notably, Mr Habib argued that he does not deal with paperwork arising from this business since he is dyslexic.
Danes Road
Mr Habib claimed that he had never rented a unit at Danes Road. The space was made available to Mr Habib by a friend (Tony Terry) who also dealt with cars. Mr Habib denied knowledge of any illegal activities that may have been occurring in the unit at Danes Road. To his knowledge, two of Mr Habib’s co-accused (Tony Hames and Kurt Amooty) worked for Tony Terry. Mr Habib also argued that he had allowed Mr Hames to use his address because Mr Hames had no fixed address. However, the information about Mr Habib’s relation to Mr Hames and Mr Terry were not mentioned in his interview, nor was the creation of false documents in the name of Mr Habib addressed. The judge then directed the jury on the significance of weight they could attribute to Mr Habib’s lack of mention in his interview.
Citroen Berlingo M666
Mr Habib claimed that he knew Mr Nadeem from the garages at Danes Road and that Mr Habib had sold the Berlingo M666 to Mr Nadeem in April 2012, although the specific date of sale was not mentioned by Mr Habib.
Stewarts Farm
On Stewarts Farm, Mr Habib claimed that he had, indeed, rented a unit there. However, two or three weeks later, Mr Habib stated that he had agreed to sub-let part of the unit to Mr Hames. Thereafter, Mr Habib made visits to the unit once or twice a fortnight. Mr Habib argued that Mr Hames was likely responsible for the stolen cars, false names, establishment of the cannabis factory and bringing cocaine and guns to the Stewarts Farm unit – all of which were cited by the prosecution in support of Mr Habib’s alleged offences.
Mr Walid had no evidence submitted at trial.
Conviction
In hearing both the Prosecution and Defence’s case, the Crown Court judge was satisfied that Mr Habib was the “principal and mastermind”. For the judge, the scheme at Danes Road was “highly organised” and conceived of Stewarts Farm to be a continuation of Mr Habib’s illegal business when the allegedly illegal activities at Danes Road was discovered by the police. Finally, the judge concluded that cannabis was commercially cultivated at Stewarts Farm and that Stewarts Farm was utilised as storage for weapons, ammunition and class A drugs for street supply.
Mr Habib maintains that this conviction was wrong. He appealed against the judge’s conviction and sentence. However, the judge refused Mr Walid’s application to appeal stating that there was “an overwhelming amount of evidence against you and, in my judgment, your conviction is entirely safe.” Further, the judge added that the points raised by Mr Walid are “at best, peripheral, and do not affect the safety of that conviction.”
The judge continued that Mr Walid’s defence relying on the fact there were no fingerprints or DNA “was hardly determinative of your guilt or innocence”. Finally, the judge reiterated that other points raised by Mr Walid’s defence counsel, including Mr Walid’s limited literacy, were not significant enough to overturn his conviction. And yet, Mr Walid’s case does not just end here.
Conspiracy to pervert the course of justice
On 3 July 2015, Mr Habib was convicted of a conspiracy to pervert the course of justice at Woolwich Crown Court. He was joined with four co-defendants, for intimidation against the landlord of Stewarts Farm. It was alleged that a result of the intimidation, the landlord of Stewarts Farm had not given evidence at the Chelmsford trial which was of special significance to the prosecution’s case because the landlord was the only witness whose evidence directly undermined Mr Habib’s claim that he had infrequently been at Stewarts Farm. This has led to Mr Habib’s overall sentence to be 18 years’ imprisonment, consecutive to the 15 years that has been imposed at Chelmsford Crown Court.
Application to the CCRC
In 2017, Mr Habib made an application to the CCRC for his case to be referred to the Court of Appeal. He did not receive any assistance in his application. The following outlines Mr Habib’s reasons for believing that he was wrongly convicted of the alleged crimes. Mr Habib wrote in a questionnaire submitted to Empowering The Innocent (ETI):
“Essex police fabricated evidence.
Poor legal team (major breakdown in communication) who did not help me.”
There were “several witnesses” as alibis and alleged evidence that proves that Mr Habib has not committed the alleged crime.]
In terms of fresh evidence not adduced at trial, Mr Habib cited “evidence of key witnesses and evidence of mental health conditions (cognitive learning difficulties + autism) which the Court and jury did not know about.”
More specifically, the following provides verbatim requests from Mr Habib to the CCRC in his application and the CCRC responses.
Jury
Submission: You say that the jury were all white, and this gave rise to a perception that they were biased against you.
CCRC response: There is no rule about the ethnic balance of a jury. If a defendant objects to the participation of any particular juror or jurors, the matter can and should be raised at trial. It does not appear to the CCRC that there is any reason to think that submissions about the make-up of the jury could now succeed as a ground of appeal in your case.
Judge
Submission: You say that the judge did not give an adequate answer to a jury question about handwriting.
CCRC response: If counsel thought this issue was significant, it could and should have been raised on appeal.
Submission: You say that the summing-up was biased.
CCRC response: Again, if counsel thought this issue was significant, it could and should have been raised on appeal. The CCRC has not identified any bias in the summing-up.
Defence
Submission: You suggest that the defence should have called an expert in DVLA procedures to explain aspects of the process and how long the process takes. This would have supported your case that you had sold the Citroen Berlingo M666 (in which the weapons and ammunition were found) to Mohammed Nadeem.
CCRC response: Evidence about the ownership and registration of the Berlingo was given at trial. Your representatives did not think it was necessary to adduce expert evidence. We do not consider that a successful ground of appeal could now be founded on this point.
Submission: You suggest that the defence should have called a handwriting expert.
CCRC response: The prosecution called a handwriting expert. The judge reminded the jury that his evidence was not disputed. The expert did not say that you had written any of the documents. There is no reason to think that any further evidence on handwriting would have any bearing on the safety of your conviction.
Literacy and other difficulties giving evidence
Submission: You say that you should have been given more support at trial, such as an intermediary, because of your literacy problems. This was particularly problematic when documents were put to you in cross-examination. You point out that in your trial at Woolwich Crown Court it was in the agreed facts that you could not read or write. You say, further, that because of an accident when you were 19 your speech is slow and impaired and can be hard to understand. The prosecution argued that you were getting angry, but you were in fact just frustrated because you were struggling to make yourself understood. This was not explained to the jury.
CCRC response: The CCRC does not consider that this issue could not establish or contribute to a real possibility of a successful appeal. The issue of your literacy was raised at trial (the judge reminded the jury that is was your case that “because [you] could not read or write [you] got other people to fill in forms for you[you]”. You also agreed, in cross examination, that on a number of occasions when in custody you had told the police that you needed no help with reading and writing. The fact that the issue of your literacy was dealt with differently at Woolwich Crown Court does not amount to a ground of appeal in respect of this conviction. The jury were entitled to assess your evidence and your manner throughout the trial. If counsel had had any significant concerns about your ability to participate in the trial, he could and should have raised it at the time.
Police Conduct
Submission: You say that the prosecution induced your co-defendants to give evidence against you by promising to advise the judge of their assistance.
CCRC response: You have not provided any evidence in support of this submission.
Submission: You say that the prosecution did not call the arresting officer.
CCRC response: It does not appear to the CCRC that this issue could succeed as a ground of appeal. It is a matter for the prosecution to decide which witnesses to call. The prosecution called evidence from a number of police officers.
Letter from Ms Anna Ibrahim, Mr Habib’s partner
In response to the CCRC refusal to investigate Mr Habib’s alleged wrongful conviction and imprisonment, a letter from his partner, Ms Anna Ibrahim, contended that:
“The fact that evidence in Walid's favour was tampered with - this was proven in court e.g. a tenancy agreement that the police had handwritten Walid's phone number on was presented to the jury as evidence that the document was Walid's.
Conflicting police evidence - on scene the police gave different versions of events, one said there was a helicopter and the other said there wasn't. The evidence they gave was not reliable and demonstrated a tendency to make things up.
One police officer said that Walid was working on a car and that his hands were greasy, however that same police officer’s note book confirmed that his hands were clean when he was arrested.”
Plainly, Ms Ibrahim’s account suggests that the whole picture was not properly investigated, and even then, important nuances have been overlooked. The glaring inconsistencies indicates that the amount of weight and significance placed on each piece of evidence goes, at best, unexplained, and at worst, wilfully ignored.
The CCRC’s failure to employ professional experts to investigate these gaps is further cemented by its repeated statement: “This is a point that could and should have been made at trial, if the defence thought it was of any significance” and “if counsel thought this issue was significant, it could and should have been raised on appeal”.
The above statement made by the CCRC operates on the premise that all applicants have adequate legal representation and a capable defence team. But, that is only an ideal and rather entitled position to take. For, there is also a real possibility of a lack of good legal representation. Ms Ibrahim noted:
“Walid had an ineffective legal team, breach of article 6 – Right to fair trial. Walid had a motorbike accident when he was 19 and was in intensive care for a few months. As a result, he suffers from cognitive difficulties and is also Autistic – Which the court or Jury did not know about. This is very import because the prosecution said he was “mastermind” when really he has severe learning difficulties.”
The “real possibility” test
What is the ‘real possibility test’ that the CCRC keep referring to? Lord Bingham, gave a judicial interpretation of the test in R v Criminal Cases Review Commission (ex parte Pearson) as follows:
“The 'real possibility' test […] denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility, but which may be less than a probability or a likelihood or a racing certainty. The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld.”
To date, the ‘real possibility test’ is laced with controversy (such as, the test being void of independence and extremely deferential to the Court of Appeal). But even if we were to accept the existence and definition of this test, it is hard to see how it has been rightly applied here in Mr Habib’s case.
The amount of weight accorded to Mr Habib’s inherent inability to read or write seems unequivocally low. Notwithstanding a lack of explanation as to how Mr Habib’s involvement, not only correlated, but also caused, the whole organisation of the illegal enterprise, no steps were taken to even ascertain or investigate Mr Habib’s capacity to even orchestrate such a sophisticated series of events.
To conceive of a man suffering from cognitive difficulties and autism as a main mastermind of such a highly organised crime is confounding to any reasonable person. Such a stark inconsistency must not have escaped the case worker(s) reviewing Mr Habib’s application to the CCRC, but no efforts to investigate such matters suggests apathy towards the application.
Conclusion
In concluding, a pertinent issue comes to mind. If the CCRC, as a public and (so called) independent body, is serious about reviewing alleged wrongful convictions, then, surely, it must call experts to review key evidence, such as whether a person in fact had normal levels of cognitive abilities and authenticity of evidence.
Unfortunately, the CCRC as it is currently structured and operates demonstrates a keen deference to the judge’s indictment, rather than a commitment to alleged innocent victims of wrongful convictions. Indeed, in response to Mr Habib’s application (and many others that I have researched) it merely explained why the trial was lawful at face value. This takes the notion of ‘guilty until proven innocent’ as the status quo; rather than ‘innocent until proven guilty’ as an operating principle.
How then, can we trust this body to uphold principles of justice, if it fails to even take the first step of ascertaining the veracity of evidence?
Phoenix Gay Xue Ke volunteered with Empowering the Innocent (ETI) as a researcher between October 2019 and July 2022 when she was an undergraduate student in the Law School, University of Bristol.
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