Khatun v R.

A judge need not leave provocation to a jury where the factual alternatives and directions leave no conceivable basis for a finding that the defendant lost self-control through provocation. Where conviction depends on a finding of a deliberate, unlawful and pre-planned killing, but the defendant’s account, if possibly true, requires acquittal, there is no evidential basis for manslaughter based on absence of intent.

Expert cultural evidence about a defendant’s lies or omissions may be excluded as irrelevant where the jury can assess credibility without expert assistance on the evidence before it.

The appellant was convicted at the Central Criminal Court, by a 10–1 majority, of murdering her husband. The prosecution alleged a sophisticated and premeditated killing. The appellant accepted that she caused the death but alleged an accidental stabbing while defending herself during an assault.

She appealed against conviction, contending that the judge should have left lack of intent and provocation to the jury, and should have admitted expert evidence about the cultural reasons for her earlier lies and omissions. She also renewed an application for leave to challenge a minimum term of 17 years less time spent on remand.

1. Appeal dismissed. The conviction was safe. The renewed application for leave to appeal the minimum term also failed.
2. There was evidence which would normally have required provocation to be left to the jury. However, the way in which the factual issues were put meant that there was no room for that issue. The jury could acquit if the appellant’s account of an attack, panic and accidental stabbing was or might be true. They could convict only if sure that she had carried out a sophisticated plan to kill. Although planning and provocation are not invariably inconsistent, the evidence of planning in this case left no conceivable basis for a finding of loss of self-control through provocation.
3. The failure to leave manslaughter for lack of intent did not render the conviction unsafe. The jury were repeatedly directed that conviction required a deliberate, unlawful and pre-planned act. If the appellant’s account could be true, she had to be acquitted. If it was false, the jury’s necessary finding of a deliberate pre-planned killing left no room for manslaughter. It was murder or acquittal.
4. The judge’s failure to return expressly to self-defence, and his treatment of accident and self-defence as substantially overlapping, caused no unfairness on the facts. The prosecution did not contend that taking up the knife would have been unreasonable on the appellant’s account, and conviction required the jury to reject that account.
5. The proposed cultural expert evidence was properly excluded as irrelevant. The jury could assess the reasons for the appellant’s lies, silence and omission of alleged sexual abuse without expert assistance, particularly given the evidence from witnesses familiar with her background.
6. The 17-year minimum term, less 459 days on remand, was not manifestly excessive. The court regarded the murder as shocking and planned, with premeditation and the taking of the knife to the matrimonial home as aggravating features.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and refused the renewed application for leave to appeal sentence: [2010] EWCA Crim 138.
• Central Criminal Court — convicted the appellant of murder by a 10–1 majority and imposed a minimum term of 17 years less 459 days on remand.