Khan, R v

On a submission of no case to answer, the court must apply the traditional Galbraith test: taking the prosecution case at its highest, could a reasonable jury, properly directed, infer guilt? Circumstantial evidence does not require an elaborate separate test. The issue remains whether a reasonable jury could draw the adverse inference, while rejecting any competing explanation as a realistic possibility where that is necessary on the facts.

A charge of conspiracy to murder may properly be left to the jury where the whole body of evidence, including planning, the use of a potentially lethal weapon, concealment and relevant threats, permits an inference of an agreement to kill. Evidence that the gunman ultimately shot the victim in the leg does not itself require the court to withdraw that charge.

Five defendants were convicted at Stafford Crown Court of conspiracy to murder following a planned shooting outside the intended victim’s home. The victim suffered serious injuries after a masked gunman fired a sawn-off shotgun at close range.

The prosecution alleged either a conspiracy to kill or a conspiracy to cause grievous bodily harm. At the close of the prosecution case, Holroyde J rejected a submission that the evidence could not support the more serious conspiracy. The defendants appealed solely against that ruling. The central issue was whether the evidence was sufficient to permit a properly directed jury to infer an agreement to murder rather than merely an agreement to cause really serious harm.

1. The appeals were dismissed. Holroyde J was entitled to leave the conspiracy-to-murder count to the jury.

2. The governing question on a submission of no case was the traditional test in Galbraith [1981] 1 WLR 1039: taking the prosecution evidence at its highest, could a reasonable jury, properly directed, infer guilt? The court preferred the approach in R v Anthony Darnley [2012] EWCA Crim 1148. It cautioned against over-analysing the test in a circumstantial case. The inquiry remains whether a reasonable jury could draw the adverse inference, not whether every reasonable jury would do so.

3. On these facts, the jury could properly infer an agreement to kill and reject conspiracy to cause grievous bodily harm as a realistic alternative. The evidence included extensive planning, reconnaissance, a stolen car with false plates, a sawn-off shotgun, an attempted destruction of evidence, and threats specifically to kill the victim in the context of intimidation connected with his sons’ testimony.

4. The fact that the gunman fired towards the victim’s leg did not determine the conspirators’ agreed purpose. It was open to the jury to conclude that the gunman may have changed his mind at the last moment, and it was for the jury rather than the judge to assess that possibility and the competing inferences.

• Court of Appeal (Criminal Division) — dismissed the defendants’ appeals and upheld the ruling that the conspiracy-to-murder count should be left to the jury.
• Stafford Crown Court — Holroyde J rejected a submission of no case to answer on conspiracy to murder. On 29 November 2011, the jury convicted all five defendants of that offence.