Imran Khan [2019] EWCA Crim 1044
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**Imran Khan [2019] EWCA Crim 1044** concerned an appeal against a sentence of eighteen months’ imprisonment imposed in the Crown Court at Chelmsford for possessing a bladed article contrary to section 139(1) of the Criminal Justice Act 1988, following conviction in the magistrates’ court.
Mr Khan, aged 37, was convicted on 13 December 2018 after trial of possessing a small lock-knife with a two and a quarter inch blade. He was committed for sentence and on 17 January 2019 His Honour Judge Morgan sentenced him to eighteen months’ imprisonment. Mr Khan appealed by leave of the single judge.
The offence arose on 17 October 2018 when police were called to an incident in Harlow, Essex, where Mr Khan had visited his partner at work. An argument ensued involving another man, and Mr Khan was charged with assault and a public order offence (of which he was later acquitted) in addition to the knife offence. Police initially arrested Mr Khan but had to de-arrest him owing to a mistaken description. Minutes later, after the description was corrected, officers located him at Harlow Mill railway station. As an officer grabbed his arm, Mr Khan promptly handed over a small silver lock-knife, the inference being that it was readily available in his pocket if not already in his hand. In interview Mr Khan claimed he normally carried the knife on his keyring for legitimate purposes and that it had become detached when he dropped his keys while running to the station. The magistrates rejected any defence of lawful authority or good reason. Section 139 permits folding pocket-knives with blades under three inches, but a lock-knife does not fall within that exemption, as established in R v Deegan [1998] 2 Cr App R 121.
Mr Khan’s previous convictions were extensive and alarming. In May 1999, aged 16, he received two years’ detention for robbery, assault and possessing a prohibited weapon, reflecting offences committed at age 15 involving possession of an unspecified weapon on 26 November 1997 and a prohibited weapon under the Firearms Act 1968 on 9 July 1998. In March 2001, aged 17, he was sentenced to 33 months’ detention for criminal damage, possessing an offensive weapon contrary to the Prevention of Crime Act 1953, and possessing an imitation firearm with intent to cause fear of violence. The 2000 offensive weapon conviction was conceded to be a relevant previous conviction within section 139AZA of the Criminal Justice Act 1988, triggering a mandatory minimum sentence of six months’ custody unless it would be unjust. Most significantly, in October 2003 at the Central Criminal Court Mr Khan was sentenced to life imprisonment for murder with a minimum term of fourteen years. The murder apparently involved use of a bladed instrument, albeit a screwdriver. He was released on licence in August 2017, approximately fourteen months before committing the present offence, and was recalled to prison following his arrest.
In passing sentence Judge Morgan set out the background to the arrest, explaining that he did so for the benefit of the Parole Board, which would have to assess whether it was safe to release Mr Khan on licence again. The judge emphasised that he remained loyal to the acquittals in the magistrates’ court and acknowledged that at no stage during the earlier incident had the knife been produced or threatened. Nevertheless the judge observed that a lock-knife could easily be held within the hand unseen once the blade was extracted and could have life-threatening consequences if used. The judge considered the offence serious in light of Mr Khan’s record and noted that the previous weapon offences aggravated the present offence. He accepted that the gravity was reduced by the fact that the knife had not been used at all. The judge concluded that the appropriate sentence was eighteen months’ imprisonment and gave no credit for plea, as the matter had been contested at trial.
On appeal Mr Dunn advanced two grounds. The first, which did not find favour with the single judge but was renewed, contended that the judge erred by describing the events leading up to the arrest in his sentencing remarks and should have disregarded that evidence entirely, confining himself to the handing over of the knife on the platform. The Court of Appeal rejected this ground, noting that the judge had made clear why he set out the background and that he remained loyal to the acquittals.
The second and more substantial ground, on which leave was granted, was that eighteen months was manifestly excessive having regard to the Sentencing Council guideline for possession of a bladed article, which came into force on 1 June 2018. It was regrettable that neither counsel nor the judge referred to the guideline in their remarks, and the court did not know whether the judge had it in mind. Mr Dunn conceded level A culpability because the article was bladed, and that no category 1 harm factors applied, making this a category 2A offence with a starting point of six months and a range of three to twelve months’ custody. He accepted that the statutory minimum of six months applied by reason of the previous relevant conviction, but submitted that eighteen months, 50 per cent above the top of the guideline range, was manifestly excessive. He argued there were no aggravating factors surrounding the offence itself and that Mr Khan’s co-operation in handing over the knife was mitigating.
The court considered these submissions carefully but was unable to accept them. The grossly aggravating feature was Mr Khan’s record. On four separate occasions before his murder conviction he had been found in possession of an offensive weapon or firearm in public, and the murder itself apparently involved a bladed instrument. Within little more than a year of release on licence he was again carrying an offensive weapon in public. The court noted it seemed unlikely the knife could have been on the keyring when Mr Khan had it at the station, given how promptly he handed it over; if the defence at the magistrates’ court concerned the circumstances in which the knife came to be detached from the keyring, that account may well have been rejected in any event. On any view the inference was that he had it loose in his pocket at the station. Furthermore, although the offence was possessing the knife at the station, the reality was that Mr Khan must have had it in his possession at the time of the earlier incident; he had gone out that evening with this very dangerous lock-knife in his pocket, thereby committing the offence while on licence for murder. The guideline stated in terms that the presence of aggravating factors may make it appropriate to move outside the identified category range, and this was just such a case. The judge had given credit for the fact that the knife had not been used at all and that no threat had been made with it. The court had seen a photograph of the knife and considered it a vicious-looking weapon whose potential for causing serious injury was rightly identified by the judge. This was a very serious offence of its kind because of Mr Khan’s background and record.
In short, the court was quite unable to say that the sentence was manifestly excessive and dismissed the appeal, describing the sentence as properly and necessarily severe.