Azhar Khan [2019] EWCA Crim 1306

R v Azhar Islam Khan [2019] EWCA Crim 1306 concerns a renewed application for an extension of time to appeal convictions for cheating the public revenue and fraudulent evasion of income tax, which the Court of Appeal (Lord Justice Irwin, Mr Justice Kerr and His Honour Judge Patrick Field QC sitting as a judge of the Criminal Appeal Division) refused.

On 31 January 2017 in the Crown Court at Harrow, following a trial before His Honour Judge Anderson and a jury, Mr Khan was convicted of cheating the public revenue (count 1) and two counts of fraudulent evasion of income tax (counts 3 and 4). He was acquitted by direction on a further count of fraudulent evasion of income tax (count 2). On 24 February 2017 he was sentenced to 18 months’ imprisonment on count 1 and 6 months’ imprisonment on each of counts 3 and 4, all concurrent, and was disqualified from acting as a company director for four years under section 2 of the Company Directors Disqualification Act 1986. On 9 May 2017 the sentence on count 1 was quashed on appeal and a sentence of nine months’ imprisonment was substituted (R v Azhar Islam Khan [2017] EWCA C703). Mr Khan had not sought to appeal his convictions at that time. He was represented at trial by Mr Price QC leading Mr Bentwood under a representation order, and on the sentence appeal by Mr Kovalevsky QC. He now applied for an extension of time of 441 days in which to apply for leave to appeal his convictions and for a representation order, both having been refused by the single judge. He renewed his application on 8 February 2019. The matter was heard by Mr Trollope QC, who had been instructed only two days before the hearing. The court refused an adjournment.

Mr Khan had been a solicitor specialising in criminal law. Between 2006 and 2011 he filed personal tax returns which were inaccurate, resulting in a cumulative underpayment of income tax of £60,097.33. The prosecution case was that Mr Khan had cheated the public revenue. The inaccuracies in the tax returns and the additional tax liability were not disputed at trial. The issue was Mr Khan’s knowledge. The trial judge had summarised that the Crown’s case was that over the relevant tax years there was an overall difference of about £180,000 between Mr Khan’s drawings from his business, City Law solicitors, and what he had declared to the Revenue. That fact was not in argument. The issue was whether at the time he submitted his tax returns Mr Khan knew he was understating the amount he had drawn and was intending to evade payment of income tax. Trial junior Mr Bentwood confirmed in a note following waiver of privilege that Mr Khan’s defence was not that there were no errors in his tax returns but rather that he was unaware of any errors and had not acted dishonestly in signing the returns.

Mr Khan advanced what he termed preliminary grounds of appeal. First, he contended that the trial judge had erred in law by directing the jury that they might convict on the basis of one year’s figures or a number of years’ figures. The court rejected this ground, holding that it misrepresented what the court had said in the sentencing judgment. The sentence on count 1 had been reduced because the jury might have convicted on the narrower basis left to them, but there had never been any suggestion that it was improper to leave both the narrower and the broader basis to the jury depending on their decision on the facts. None of the other matters concerning the evidence could found a successful appeal against count 1.

Second, Mr Khan sought to introduce an expert report dated 13 June 2016 from Frenkels, forensic accountants, as fresh evidence. The court found this application misconceived. The evidence confirmed that the report had been available to Mr Khan’s solicitors and leading counsel before trial. There had been a decision not to use it. The report was in any event a curious document, describing Mr Khan as a claimant before the Crown Court and his former accountants as defendants. It itemised suggested failings by Mr Khan’s former accountant. Even if admitted, the court held, this report would not be significant as to the issue upon which Mr Khan was convicted, namely his knowledge.

Third, Mr Khan sought to appeal count 1 by reference to the fact that his wife was not called as a defence witness. Disclosure following waiver of privilege from the trial lawyers made it clear that Mr Khan himself had taken the decision, evidenced in writing, that he would give no evidence at his own trial. It was also clear that the advice he received and apparently followed was that if he did not give evidence then it would be a significant tactical error to call his wife as a witness, no doubt because of the contrast between the two. The court held that this evidence as to the calling of him or his other relatives as witnesses was not fresh, nor was it a credible basis upon which to challenge his conviction.

Fourth, Mr Khan relied on evidence from Mrs Taiba Ahmed, who confirmed in a witness statement that she was the beneficial owner retaining control and management of relevant properties. The court held that precisely the same point arose in relation to this witness as in relation to Mrs Khan. It was Mr Khan’s choice not to call Mrs Ahmed. As the single judge had observed, she was a reluctant witness and could not give evidence relevant to his defence. Whether or not she was a reluctant witness, she was available and was not called.

Fifth, Mr Khan sought to suggest that relevant tenancy agreements for properties generating income were not signed by him and were outside his knowledge. The court held that precisely the same objection arose: he never gave evidence at trial to suggest this nor called any other evidence to do so. His suggestion in the course of his current application that this matter was under investigation was neither here nor there. As the single judge had observed, Mr Khan was a specialist criminal solicitor and must be taken to have been fully alive to the need to produce his case at trial and not to withhold aspects of his case with a view to introducing them later if he chose to do so.

Sixth, Mr Khan suggested that there was a note of a meeting in February 2011 supportive of his case. The court held that for the same reasons this letter, having not been produced at trial, could not possibly constitute fresh evidence nor could it found a successful appeal.

Seventh, Mr Khan advanced arguments pursuant to his Article 8 privacy rights under the European Convention on Human Rights. The court held that even if these arguments were correct, they could not affect the validity of the evidence deployed at his trial. The court indicated that it should not be understood to accept in any way that the investigation of Mr Khan constituted unlawful or over-intrusive investigation or what he had described as coercive law enforcement. Mr Trollope informed the court, and the court accepted for present purposes, that some of the investigation into Mr Khan had led to him being accepted as a core participant in the current enquiry into covert policing. Even if that were so, and even if there was over-intrusive investigation, the critical documents at trial were public documents; they were Mr Khan’s tax returns. The truth of the content was accepted at trial. The intrusive investigation, even if it affected these issues at all, could hardly affect the safety of the convictions.

The court considered the chronology. Following his conviction in 2017, Mr Khan did not seek to appeal his convictions in 2017 when he was before the court on sentence and when he was advised by a fresh legal team including a fresh Queen’s Counsel, nor did he seek to proceed soon after. The court was told of a history of depression, mental health problems and many other problems in Mr Khan’s life in the ensuing period through to May 2018. The court accepted that those would provide at least reason for not pursuing the case during that period. However, by February 2019, five months before the hearing, Mr Khan knew that a renewal hearing was upcoming. He provided no more material, no letter to the court saying he could not be ready, and no more substantive points. The court emphasised that at the heart of the application was his disagreement, as he now put it, with tactical decisions taken by trial counsel with his consent.

In short, the court saw no substance in the application for the grant of leave, dismissed the application, and held that it was not in any way unjust to Mr Khan to do so.

Khan [2017] EWCA Crim 703