Khan (Imran) [2022] EWCA Crim 1592

**R v Khan (Imran) [2022] EWCA Crim 1592** concerns an appeal against conviction and sentence before the President of the King’s Bench Division, Mr Justice Sweeney and Mr Justice Linden, which was dismissed in its entirety.

On 11 April 2022 at Southwark Crown Court before Jeremy Baker J and a jury, the appellant was convicted of sexual assault contrary to section 3 of the Sexual Offences Act 2003, alleged to have been committed in January 2008. On 23 May 2022 he was sentenced to 18 months’ imprisonment. The complainant, C, was 15 years old at the time of the alleged offence; the appellant was then 34.

The case arose from a 21st birthday celebration for the appellant’s friend’s girlfriend in January 2008. The appellant was invited to the family home in Staffordshire. After the party, C’s mother allocated the appellant a spare single bed in the attic bedroom which C, then aged 15 years and 8 months, shared with his 11-year-old brother on bunk beds. C’s ultimate account was that the appellant brought gin and tonic to the room, pushed the glass back into C’s mouth when he declined to drink, suggested C watch pornography on his computer, later dragged him upstairs, threw him onto the spare bed, and told him he was very intelligent and attractive. After C got into his top bunk, the appellant repeatedly reached through the wooden rails and then over them to touch C’s leg, progressing towards his groin. C pushed him away and moved away in the bed, but the appellant persisted for some two minutes. When the appellant got very close to his groin, C jumped out of bed and ran to his parents’ bedroom, telling his mother that “the man tried to touch me”. C was shaking uncontrollably and crying. His parents asked the appellant to leave in the morning. Police were called later that day. DC Burton recorded C’s initial account in her notebook. C and his family decided not to pursue the matter to trial at that time.

C tried to put the matter behind him but recalled it in 2015 during an emotional recall exercise at drama school. When the appellant stood for Parliament and was elected in 2019, C felt he could no longer bury what had happened and contacted police in December 2019. He was ABE interviewed about the offence that month and about the surrounding circumstances in February 2021. The appellant completed a police questionnaire in May 2020 denying sexual assault. He said the only physical contact had been touching C’s elbow to reassure him after C became upset during a conversation about his sexuality which C had instigated. He said he had asked C whether he had ever watched pornography, not suggested that C watch it. After the prosecution commenced in 2021, publicity came to the attention of A, who complained in July 2021 that the appellant had sexually assaulted him in Pakistan in November 2010 when A was 25 and the appellant 37. No prosecution was possible as A was an adult at the time and there was no jurisdiction.

The prosecution applied to admit A’s evidence as bad character under section 101(1)(d) of the Criminal Justice Act 2003 on two bases: first, that it demonstrated propensity to commit sexual offences given similarities between the two allegations; second, that C’s credibility was the central issue and the jury would be assisted by considering the unlikelihood of similar allegations from two unconnected individuals. The defence objected, arguing inter alia that the single allegation from A lacked unusual or striking features to demonstrate propensity, that significant differences existed between the two incidents (C was 15, A was 25; the allegations were nearly three years apart; the defences differed), that it would create prejudicial satellite litigation, that the prosecution case was weak and the evidence was being used to bolster it, and that the appellant was prejudiced by the 11-year delay in A’s allegation preventing effective defence. Jeremy Baker J ruled that the evidence was admissible, reserving his reasons until after he had given his legal directions. In his written judgment he found that the case against the appellant was not weak, that C’s credibility was the central issue, that there were sufficient similarities to show propensity despite only one other complaint, and that the jury would be entitled to consider whether it was beyond mere coincidence that two relatively young males had independently alleged sexual assaults in similar circumstances between 2008 and 2010. He found that the evidence would not create unfairly prejudicial satellite litigation and that the trial would remain fair.

A gave evidence that in November 2010 while working with the appellant in Pakistan, the appellant had on three or four occasions inappropriately tickled him or put his feet across him when watching television and drinking. On a trip to Peshawar where they had to share a bedroom, after a function where alcohol was consumed and possibly cannabis, the appellant offered A a sleeping pill which he took. A went to sleep in the single bed but woke to find the appellant had interfered with his lower clothing and was sucking his penis. A pushed him away and later quit his job. He told colleagues and his parents and reported it to the High Commission but decided not to report it to police given his concern about the appellant’s influence. Confirmatory evidence was given by A’s then colleague, a former colleague who came forward during trial, and his parents. The appellant’s evidence was that the encounter had been consensual. A had walked into his bedroom with whisky after they had returned from drinking, had got undressed and into bed with him, and there had been kissing, cuddling, fumbling, mutual masturbation and oral sex. A had seemed upset, ashamed, angry and regretful in the morning.

The appellant’s evidence about C was that C had asked him about his sexuality at the party, that C had tried to engage him in conversation about it after he went to the bedroom, that standing by the bunk bed he had told C not to worry as everything would sort itself out, and that in an attempt to close down the conversation he had asked C whether he had watched porn as that would be a good indicator of his sexuality. C became tearful and jumped down, and the appellant placed his hand on C’s elbow and told him not to worry, whereupon C bolted. He denied touching C’s legs or going anywhere near his groin. The appellant called character evidence and a witness M who said via poor quality video link that the appellant and A had separate rooms in Peshawar and he had never seen the appellant smoke cannabis.

On appeal Ms Gudrun Young KC argued that the judge erred in admitting the bad character evidence, that it was insufficiently relevant or probative, used to bolster a weak case given variations in C’s accounts and lack of corroboration, that the ruling conflicted with the jury directions, that the similarities were insufficient to justify admission, and that it resulted in unfairly prejudicial satellite litigation. She argued there were significant differences in C’s accounts over the years, that the judge failed to engage with internal contradictions in C’s account, that the single incident from A could not show propensity under authorities such as Hanson, that the circumstances were insufficiently similar (C was 15, A was 25; C’s allegation involved brief touching of legs through clothing, A’s involved non-consensual oral sex; the incidents were nearly three years apart; the defences differed), that admission of A’s evidence was particularly prejudicial because no official complaint record had been found, there had been no investigation, key witnesses had not been spoken to and records had not been seized or gathered, the appellant could not introduce evidence of professional rivalries between himself and A without being able to prove allegations of malpractice were unfounded, and thus he was significantly disadvantaged. She argued that categories of missing evidence represented a significant chance of demonstrating A was wrong about room allocation and had motives to make a false allegation.

Mr Sean Larkin KC for the Respondent argued the bad character evidence was properly admitted, the judge had regard to all appropriate authorities and correctly exercised his discretion. C’s credibility and reliability were at the core of the case and the evidence was relevant both to C’s credibility and to the appellant’s propensity. The facts were sufficiently similar and unusual for propensity purposes. While the evidence was of a single unproven incident, Parliament had envisioned admission of such bad character evidence under the Criminal Justice Act 2003 and the jury were properly directed they could not rely on it unless sure it was true. The appellant sought to intoxicate the complainant in both cases and his failure with C was irrelevant. The appellant was able to deal with the evidence: he gave evidence about the incident, called supporting evidence on the issue of room allocation, the evidence about professional concerns was set out in detailed contemporaneous email correspondence which was not admitted, the appellant’s decision not to cross-examine A about professional rivalries was tactical, the complaint about not being able to obtain further evidence was common in historic cases and not an automatic bar, the appellant could have asked for more time to make enquiries, and if A invented the allegation shortly after the 2010 incident in order to complain in 2021 that would be relevant. One prosecution witness was called and the appellant gave evidence and called a witness, which did not distract from the evidence relating to C. The judge correctly found the prosecution case was not weak; C had given a consistent account, his evidence had been thoroughly tested, inconsistencies had been explored and explained by factors such as his age, the shock sustained, the passage of time and the absence of DC Burton’s note at the time of his 2019 ABE interview. There was supporting evidence from C’s younger brother, parents and others who heard C’s account and observed his demeanour. C’s 2015 note was consistent with his evidence. The appellant’s 2019 voicemail showed his concern about the 2008 incident.

The Court of Appeal held that the judge was directed to and applied the correct legal principles and that the decision to admit the bad character evidence was made in the exercise of his discretion such that for the appeal to succeed the appellant had to show it was Wednesbury unreasonable. The judge was clearly right to defer consideration until after the prosecution evidence was complete and thus had the advantage of having seen C give evidence and be cross-examined. The judge was plainly entitled to conclude that the prosecution case was not weak. Within a short time of the appellant starting to share the bedroom, C fled in great distress, went straight to his parents and immediately complained that the appellant had kept trying to feel him or had molested him. C also told his mother to get his younger brother out of the bedroom. C cried all night. The appellant was asked to leave in the morning and was given to understand that it was alleged he had attempted to interfere with C. Police were informed that day. Although C did not wish to pursue a prosecution at that stage, he wanted the police to speak with the appellant and the account he gave police was consistent with his trial evidence. C was cross-examined in detail and explained differences in his accounts over the years. The judge was entitled to conclude C had given clear and credible evidence of sexual assault. The younger brother’s evidence was supportive. The wider family evidence supported C’s distress and recent complaint. C’s 2015 note was consistent. The appellant’s 2019 voicemail showed his concern about what had happened in 2008.

The judge’s bad character ruling showed he was on top of the relevant issues and there was no conflict between the ruling and the direction. The application was advanced on two bases and although the judge admitted the evidence on both, he recognised that the unlikelihood of coincidence basis was likelier to be of assistance given the centrality of C’s credibility. Thus confining the direction to that basis was entirely appropriate. The direction was crystal clear and fair to both sides. There were similarities and differences between the complaints of C and A. The principal similarities were the relative youth of both complainants compared with the appellant, both incidents happening within a short time of sharing a bedroom with the appellant for the first time, mutual encouragement to take intoxicants prior to the alleged assault, both complainants being in bed at the time of the assaults, and the appellant seeking to explain their conduct afterwards as caused by anxiety or confusion about their sexuality. The judge rightly took account of both similarities and differences. While some judges might have exercised discretion differently, the conclusion that the similarities were sufficient for admission was not outwith the legitimate scope of discretion on these particular facts. The admission did not lead to unfairly prejudicial satellite litigation. A was the only witness called by the prosecution on this incident, the appellant gave evidence, was able to call a witness, and made strategic decisions not to use other available material. The judge’s bad character direction explained why the jury had heard the evidence, its potential relevance, the defence submissions as to why it had no relevance, that their main focus should remain on C’s allegation, that they could only take A’s allegation into account if sure it was true, that if they concluded the appellant may have been disadvantaged by late revelation they should bear that in mind, that if they decided the encounter may have been consensual they should disregard the prosecution evidence about A, that even if A’s evidence was truthful they could not convict wholly or mainly on that basis, and the competing submissions on whether even if non-consensual it supported C’s credibility. Against that overall background the appellant’s trial was fair and his conviction was safe.

On sentence, the maximum for sexual assault is ten years’ imprisonment. Ms Young argued that the judge made unreasonable findings of fact regarding violence not supported by evidence, determined too high a category on the Sentencing Guidelines, placed too much emphasis on aggravating factors and gave insufficient regard to mitigating factors, and erred in declining to suspend the sentence. The Respondent had submitted at sentencing that there was some evidence of violence (dragging or pulling upstairs, throwing the cat, pushing C onto the spare bed) which was a Category 1 element and two Category 2 elements (sustained incident and vulnerable victim). As to culpability, the Respondent submitted that use or attempted use of alcohol to facilitate the offence and abuse of trust (applying Forbes) were present, placing the offence in Category 2A with a starting point of two years’ custody and a range of one to four years. The defence argued that on some versions of C’s account reference was made to elements of violence but the evidence was unclear, inconsistent and not supported such that it would not be safe to sentence on that basis. The touching was over clothing and sleeping bag until the very end when the appellant got his hand inside the sleeping bag and was touching over pyjamas at or near the genital area. The episode lasted some two minutes and was neither prolonged nor sustained. C was not particularly vulnerable such as to put the offence into Category 2 harm. Use of alcohol to facilitate was arguably present but given the small amount C consumed it was questioned whether the matter fell into Culpability A. There was insufficient evidence to find breach of trust, especially applying the full guidance in Forbes and R v TF. Category 3A carries a starting point of 26 weeks’ custody with a range from a high level community order to one year; Category 3B carries a starting point of a high level community order with a range from a medium level community order to 26 weeks. As to mitigation, the appellant had no previous convictions, was of positive good character, it would be wrong to deprive him of either as a result of the unproven allegation by A, some 12 years had passed since events relating to A with no wrongdoing since, the time gap between the offence against C and sentence meant custody would be particularly harsh, the appellant suffered from health conditions, was registered carer for his mother who suffered from health conditions, and he deeply regretted the upset felt by C. It was submitted that the court could properly suspend any

Robert Halliday [2019] EWCA Crim 1457
TF [2019] EWCA Crim 1785
Hanson, Gilmore and Pickstone [2005] EWCA Crim 824, [2005] 2 Cr App R 21, [2005] 169 JP 250, [2005] 1 WLR 3169
DM [2008] EWCA Crim 1544
Freeman [2008] EWCA Crim 1863
McKenzie [2008] EWCA Crim 758
Forbes and Others [2016] EWCA Crim 1388; [2016] 2 Cr App R (S) 44, [2017] 1 WLR 53
Francis [2017] EWCA Crim 1863