Khan & Ors v R.

Material retained by an electoral authority does not become prosecution material merely because the authority identifies suspicious documents and gives selected documents to the police. A joint or delegated criminal investigation is required before the disclosure duties in the Criminal Procedure and Investigations Act 1996 apply.

A conviction is unsafe where the summing-up fails fairly and accurately to present evidence central to the defence, particularly expert evidence or evidence capable of undermining an incriminating inference. A case should not be left to the jury where the prosecution cannot establish the evidential basis necessary for its essential inference.

Four appellants were convicted at Leeds Crown Court of conspiracy to defraud the electoral registration officer of Bradford City Council by causing false postal-vote applications to be submitted during the 2005 general election campaign.

Jamshed Khan challenged disclosure and the fairness of his trial. Reis Khan and Mohammed Sultan complained that the summing-up inadequately and unfairly presented their respective defences. Mohammed Rafiq challenged the sufficiency of the evidence that he was the author of a group of fraudulent applications, and also challenged a direction on adverse inferences from silence.

The central questions were whether undisclosed postal-vote applications were prosecution material, whether the cases against the appellants had been fairly left to the jury, and whether the summing-up fairly presented the evidence.

1. All four appeals were allowed and the convictions quashed.

2. The court rejected Jamshed Khan’s disclosure ground. The electoral registration officer was not a joint or delegated investigator. The authority had acted as a complainant which supplied suspicious applications for police examination. The remaining unexamined applications were therefore not prosecution material under the Criminal Procedure and Investigations Act 1996, and there was no duty to list or disclose them. In any event, no resulting non-disclosure affected the safety of the verdict.

3. The court also rejected Jamshed Khan’s separate fair-trial ground. The tactical choice whether to rely on interview material did not make a fair trial impossible. JAK [1992] Crim LR 30 concerned materially different circumstances. However, the prosecution accepted that its case against Jamshed depended on proving that Mohammed Rafiq wrote Group C applications. Once that case failed, the case against Jamshed also failed.

4. Mohammed Rafiq’s submission of no case to answer should have succeeded. His fingerprints and documents from his home could not establish that he, rather than another household member, was the author of Group C. The evidence also did not distinguish Group C from Group U, while his admitted handling of blank forms explained the fingerprints. The directions given on that issue were contradictory. The section 34 direction was additionally erroneous because no omitted fact relied on at trial had been identified; although unnecessary to the result, it would otherwise have been a fatal misdirection.

5. Reis Khan’s summing-up did not fairly present evidence central to his defence, including the significance of genuine addresses, witnesses who gave or may have given permission, and the effect of the ESDA evidence. The omissions and inaccurate presentation undermined the safety of the verdict.

6. Mohammed Sultan’s summing-up was also unfair. It did not adequately and even-handedly summarise the defence handwriting evidence or his own evidence. The jury were wrongly invited to assess expert handwriting caution against their personal experience, and the computer evidence was treated as incriminating despite its neutral capacity to have come from another family member.

• Court of Appeal (Criminal Division). In [2011] EWCA Crim 2240, the court allowed all four appeals against convictions imposed at Leeds Crown Court on 29 July 2010 and quashed the convictions.
• Leeds Crown Court. HHJ Bartfield and a jury convicted each appellant on 29 July 2010 of conspiracy to defraud the electoral registration officer by dishonestly causing or permitting false postal-vote applications to be submitted.