Khan, R. v

Fresh evidence founded on electronic screenshots must be capable of belief and reliable enough to afford a ground of appeal. Screenshots with no verifiable provenance, account details, device or other means of authenticating their alleged author cannot satisfy that requirement. An adjournment or investigation under the Criminal Appeal Act 1968 is not justified where the missing information makes a meaningful investigation impossible.

In sentencing a young offender, youth may mitigate. Vague cultural pressure does not. Mitigation on that basis requires evidence of tangible and substantial pressure exerted by identified family members or older associates.

The appellant had been convicted at Snaresbrook Crown Court of the attempted murder of Ismail Khan and sentenced to 15 years’ detention in a Young Offender Institution. He sought leave to appeal against conviction solely on alleged fresh evidence: screenshots said to record social-media communications by a prosecution witness which allegedly showed that the witness had falsely implicated him.

After an earlier adjournment for investigation, the appellant could provide neither the relevant device nor sufficient account information to authenticate the screenshots. He sought a further adjournment, including for an investigation by the Criminal Cases Review Commission. He also appealed his sentence as manifestly excessive, relying on his youth and alleged cultural pressure.

1. Application for leave to appeal against conviction refused; sentence appeal dismissed. The court declined a further adjournment and refused leave because the proposed fresh evidence could not be shown to be reliable.

2. Under section 23 of the Criminal Appeal Act 1968, fresh evidence must be capable of belief and appear capable of affording a ground of appeal. The screenshots were unsupported by the relevant BlackBerry device, account details, dates, passwords or other information capable of identifying their author. They could not therefore be admitted as second-hand evidence from the prosecution witness. Their content did not appear reliable for the purposes of section 23.

3. The court also doubted whether Jane’s evidence was capable of belief, given the circumstances in which it emerged and the lack of detail. It was unnecessary finally to resolve that question because the absence of authenticating material was decisive. No further adjournment was justified: a referral under section 23A, further Crown inquiries, or publicly funded inquiries could not produce a meaningful investigation on the information available.

4. The conviction application could not proceed without an adjournment. The court nevertheless noted that the messages, even if genuine, did not clearly support the alleged false implication, and that the Crown’s case was strong independently of the witness’s evidence.

5. The 15-year sentence for attempted murder was not manifestly excessive. The judge had correctly applied the attempted-murder Definitive Guideline and placed the offence within the appropriate category. The appellant’s youth attracted a significant discount. There was no evidence that he had acted under tangible and substantial pressure from identified family members or older associates; a general assertion of cultural pressure could add no mitigation.

• Court of Appeal (Criminal Division): The court refused leave to appeal against conviction and dismissed the appeal against the 15-year detention sentence.
• Crown Court at Snaresbrook: On 14 March 2014 the appellant was convicted of attempted murder. On 17 April 2014, His Honour Judge Radford imposed 15 years’ detention in a Young Offender Institution.