Khan & Ors, R v

A witness anonymity order under the Criminal Evidence (Witness Anonymity) Act 2008 is fair where the statutory conditions are met and the defence can effectively test the witness’s evidence, credibility and impartiality without disclosure of identity. Whether evidence is sole or decisive is a relevant but non-determinative consideration.

The prosecution may decline to call a witness of primary facts where it reasonably considers the witness’s account incapable of belief. A defendant cannot require the selective admission of favourable parts of an uncalled witness’s account while excluding material adverse to the defence. Fairness is assessed holistically and applies to both parties. Sentencing guidelines for provocation manslaughter provide only limited assistance when fixing a minimum term for murder.

Following a feud between two groups in Bradford, Shafiq Khan and Nazeer Khan were convicted at the Crown Court of murder and wounding with intent. Maskeen Khan was acquitted of murder but convicted of manslaughter and wounding with intent. The convictions arose from an attack on a vehicle after its passenger fired shots near the defendants’ home; one occupant was killed and another seriously wounded.

Shafiq and Nazeer appealed against conviction, principally challenging the admission of evidence from an anonymous witness, the Crown’s decision not to call certain surviving or anonymous witnesses, the overall fairness of the trial, and alleged inconsistency in the verdicts. All three appellants also renewed applications to challenge sentence. The central issue was whether the trial process, including the witness anonymity order and treatment of uncalled evidence, rendered the convictions unsafe.

1. Convictions. The court dismissed the appeals against conviction. The trial judge had correctly made the anonymity order under the Criminal Evidence (Witness Anonymity) Act 2008. Condition B, requiring a fair trial, was satisfied. The witness had been investigated for possible bias, her evidence could be tested in cross-examination without revealing her identity, and there was no material suggesting partiality or an improper motive.
2. The statutory considerations were to be applied as explained in Mayers and others [2008] EWCA Crim 2989. The fact that the anonymous evidence might be decisive did not determine the issue. It was not the sole prosecution evidence, and the defence was not unduly disadvantaged in challenging what the witness saw and heard. The court also followed Horncastle and others [2009] UKSC 14 in applying the statutory regime.
3. The Crown acted fairly in declining to call the two surviving occupants of the vehicle. Applying Russell-Jones [1995] 1Cr App R 538, it could properly regard their accounts as incapable of belief because they gave obvious lies about themselves and the deceased. The defence could not insist on placing only favourable passages from those accounts before the jury. The proposed selective hearsay evidence was rightly excluded after applying section 114 of the Criminal Justice Act 2003.
4. The identities of two further uncalled anonymous witnesses did not create unfairness. The contention that disclosure might have led to helpful further witnesses was speculative. Viewed cumulatively, the rulings and the adversarial choices made at trial did not render the proceedings unfair. The murder convictions were not logically inconsistent with Maskeen’s acquittal of murder, because the evidence and the issues of self-control differed between defendants.
5. Sentences. The court allowed all sentence appeals. It reduced Shafiq’s and Nazeer’s minimum terms for murder from 12 years to 10 years, reflecting substantial provocation and the other mitigating features. It reduced Maskeen’s sentence for manslaughter from five years to four years. The remaining orders concerning time spent in custody were unchanged.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 1692, dismissed Shafiq Khan’s and Nazeer Khan’s appeals against conviction, refused leave on the inconsistent-verdict ground, and allowed all three appeals against sentence.
• Crown Court at Bradford: Convicted Shafiq Khan and Nazeer Khan of murder and wounding with intent. Convicted Maskeen Khan of manslaughter and wounding with intent, having acquitted him of murder.