Law student who claimed he was ‘denied a fair trial’ in assault case has application for leave to appeal to UK Supreme Court refused

A law student found guilty of assault with intent to rape whose grounds of appeal were rejected by sift judges has had an application for leave to appeal to the UK Supreme Court refused by the Criminal Appeal Court.

Johar Mirza, who was sentenced to three years imprisonment following his conviction at Glasgow Sheriff Court for the assault in July 2013, claimed in his note of appeal that there had been “defective representation” in the preparation and presentation of his defence at trial, including failures to analyse CCTV images, to investigate DNA evidence and to have stains on his clothing tested.

The applicant, who was studying for a law degree at Strathclyde University but had become the subject of extradition proceedings at the instance of the US authorities in respect of high value frauds, also claimed that he had been “denied a fair trial” in terms of the article 6 of the European Convention on Human Rights because the Lord Advocate had “restrained” his access to funds which he would have used to instruct senior defence counsel to carry out the necessary investigative work.

Leave to appeal against his conviction was refused at both the first and second sift, and the applicant sought leave to appeal to the Supreme Court on the basis that the sift judges had themselves determined a “compatibility issue” by refusing leave to appeal and had “erred” in that decision.

However, the Lord Justice Clerk, Lord Carloway - sitting with Lady Smith and Lady Clark of Calton - refused leave to appeal, with Lord Carloway adding that “it will only be in exceptional circumstances that the court will grant leave in a case where the court has already decided at first and second sifts that there are no arguable grounds of appeal which would have permitted the case to proceed to a hearing on its merits”.

In a written note of reasons, the Lord Justice Clerk said: “The first point is that, as a matter of fact, the Lord Advocate did not present any petition for a restraint order. It was specifically the Scottish Ministers that applied for the prohibitory and recovery orders; albeit that the Civil Recovery Unit is based at Crown Office.

“Secondly, the Lord Advocate did not, and cannot, ‘restrain’ the applicant’s property nor prevent the court releasing funds simply by opposing a motion. An order was made by the Court of Session and the court also declined the applicant’s periodic motions to release funds. In these circumstances, there would appear to be no act of the Lord Advocate which might raise a compatibility issue in the form of a breach of article 6.

“Thirdly, if there were such a breach, it was incumbent upon the applicant either to raise the matter in his note of appeal as a challenge to the decision of the sheriff before the first trial (or to have raised it anew before the second trial). As matters stood at sift, there was no indication that a compatibility issue had been raised and decided in the sheriff court. This may explain why this application proceeds upon the basis that the sift judges had themselves decided a compatibility issue.

“Fourthly, there is no vouching for the proposition that the prohibitory order captured the totality of the applicant’s assets.

“Fifthly, in any event, the short point remains that, even if the applicant had had his funds available, it would have made no practical difference in terms of the efficacy of his defence. He had legal aid and sanction for counsel. He obtained sanction for sundry scientific, medical and other investigations. He could have asked for further sanction to do other investigations if that had been advisable.

“There is no basis in fact for the assertion that the existence of additional funds would have made any difference to the evidence led or the verdict returned and, in that regard, that any miscarriage of justice can be seen to have occurred. The evidence against the applicant appears to have been overwhelming.”