R v Khan

Where an accused's interview answers may create a false impression for the purposes of section 101(1)(f) of the Criminal Justice Act 2003, the court must identify the actual express or implied assertion. If editing the interview under section 105(6) can remove a wider and misleading assertion, admitting a previous conviction may be unjustified.

A single earlier conviction for attempting to supply drugs, in markedly different circumstances, did not justify treating the accused as having a propensity to supply drugs. A direction inviting an adverse inference from silence under section 34 of the Criminal Justice and Public Order Act 1994 is a misdirection unless it identifies what later-reliant fact was omitted in interview.

R v Khan was an appeal against convictions in the Crown Court at York for possession of heroin with intent to supply and possession of criminal property. The appellant had admitted possessing the heroin but maintained that it was for personal use.

Before trial, the judge admitted a 2007 conviction for attempting to supply heroin. The prosecution relied on propensity and on correcting an alleged false impression created in police interview. The prosecution also relied at trial on the appellant's later “no comment” answers.

The central issues were whether the previous conviction was admissible and whether the direction on adverse inferences from silence was lawful.

1. Appeal allowed. The convictions on counts 1 and 2 were unsafe and were quashed. The prosecution did not seek a retrial.

2. The appellant was responsible for assertions made in interview for the purposes of section 101(1)(f) of the Criminal Justice Act 2003. However, the relevant assertions had to be read in their context. They principally denied supplying drugs at the hostel and maintained that the heroin was held for personal use.

3. Any wider implication that the appellant was not the sort of person who supplied drugs could have been removed by further editing the lengthy interview record under section 105(6). There was no good reason to admit the previous conviction merely to correct that implication. The court also saw no reason why the conviction would inevitably have emerged if the appellant gave evidence.

4. The previous conviction was not too remote merely by reason of time. Nevertheless, it was a single attempt to supply heroin to the appellant's brother in materially different circumstances. It did not properly establish that he was steeped in the culture of supplying Class A drugs, and therefore did not justify admission on propensity grounds under section 101(1)(d).

5. The summing-up also misdirected the jury on section 34 of the Criminal Justice and Public Order Act 1994. No later statement relied on by the appellant had been identified. It was therefore wrong to suggest that the jury could regard his “no comment” answers as sinister and draw an adverse inference.

6. The circumstantial evidence gave the appellant a case to answer, but the wrongly admitted conviction may have tipped the balance for the prosecution. Taken with the material misdirection, it prevented the convictions from being regarded as safe.

• Court of Appeal (Criminal Division) — allowed the appeal and quashed the convictions on counts 1 and 2: [2020] EWCA Crim 163.
• Crown Court at York — admitted the appellant's previous conviction in a ruling of 8 June 2017; following trial, convicted him of possession with intent to supply and possession of criminal property.