Glasgow mobile phone shop owner fails to appeal conviction for attempted fire insurance fraud

About this case:

• Citation:
  [2024] HCJAC 14
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Boyd of Duncansby

Sahail Ahmed was indicted alongside his two brothers Kasim and Adum Ahmed, on two charges of attempted fraud and one of wilful fire-raising which was withdrawn in the course of the trial. The appellant and Kasim Ahmed were both sentenced to two years’ imprisonment, while Adum was acquitted.

The appeal was heard by Lord Matthews, Lord Boyd of Duncansby, and Lady Wise. Barr, advocate, appeared for the appellant and Jessop, advocate depute, for the Crown.

Sole responsibility

The evidence at trial showed that all three brothers were in the shop at various times on the day of fire, 16 May 2020. At 4:44pm that day Kasim Ahmed was seen putting petrol into a fuel canister and later coming back to the shop with a heavy carrier bag. At around 5:20pm the appellant rushed out of the shop holding a plastic box, followed shortly after by his brothers, before smoke started billowing from the premises. Fire investigators concluded that the fire was deliberate, with an expert witness, David Burns, giving evidence in support of his conclusion.

On 16 October 2023, Kasim, who did not give evidence at trial, was notified that his own appeal against conviction had been refused at second sift and accordingly he would be required to serve the remainder of his sentence. On 19 October 2023, before being taken into custody, Kasim 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 then allowed to amend his own appeal based on the evidence contained in this affidavit.

It was accepted by the Crown that Kasim Ahmed was not a compellable witness and there was a reasonable explanation why his evidence was not heard at trial. His affidavit stated that the appellant and Adum had arrived at the premises shortly before closing at 5pm, however CCTV evidence showed both brothers at the shop before that. He went on to say that he started pouring petrol all over the premises, but in court only stated he had done so in the office.

For the appellant it was submitted that a reasonable jury would have considered Kasim’s evidence to be credible and reliable. As such, it was likely to have had a material bearing on a critical issue in the trial, and could have had to a different result.

No satisfactory explanation

Lord Boyd of Duncansby, delivering the opinion of the court, said of Kasim’s evidence: “Giving evidence at the appeal hearing, Kasim Ahmed told us that he had been released from prison only the day before. He said that he found the experience traumatic and he has been signed off work with anxiety. We have subsequently been shown a sick note confirming his diagnosis. We take that into account. Nevertheless his evidence was highly unsatisfactory with many and obvious discrepancies in his various accounts and conflicts with other evidence in the case.”

He continued: “The evidence of timings in the affidavit is clearly incorrect. In evidence, Kasim accepted that he was wrong. He had no satisfactory explanation for the discrepancy. A jury would be entitled to conclude that he was attempting to minimise the time the appellant spent at the premises prior to the fire.”

Noting the strength of the Crown case, Lord Boyd said: “In his report to the court the trial judge notes that the case against the appellant was circumstantial. He states that in his opinion the Crown case was highly persuasive. We agree. On the evidence the jury would have been entitled to take the view that it was inconceivable that the appellant was unaware of what Kasim was doing and indeed was part of it.”

He concluded: “The jury would have wondered why the appellant had not noticed Kasim leave the shop; had not questioned where he had gone; had not noticed him return to the shop with a can of petrol; had not noticed petrol being poured in a total of nine separate locations; including every area of the shop premises; had not noticed these being lit and had not smelt petrol fumes. They would be entitled to take the view that the shutters had been closed early by the appellant so that passers-by would not see what was going on in the shop.”

The appeal was therefore refused.