Muhammad Khan v Regina

A criminal trial judge is not bound by the prosecution’s case theory or by the way any party presents the evidence. The judge must leave to the jury any reasonable conclusion supported by the evidence, unless it is wholly incredible or too tenuous for a reasonable jury. That duty is subject to fairness. Where departure from the presented case may cause real prejudice, the judge must adopt case-specific safeguards, including further directions, additional time, narrowing the issues or, exceptionally, discharging the jury. Co-defendant evidence does not automatically require a corroboration-style warning. The need and terms of any caution depend on the evidence and remain matters for the trial judge’s discretion.

The appellant was convicted of manslaughter following a joint trial at Stafford Crown Court. He and his co-defendant, Bello, each claimed that the other had stabbed the deceased. The prosecution’s case was that Bello had stabbed the deceased while encouraged by the appellant.

The trial judge directed the jury that either defendant could be the stabber or the encourager, and gave directions on the evidence of co-defendants. Bello was acquitted of murder and manslaughter, while the appellant was convicted of manslaughter. The appeal concerned whether the judge could depart from the prosecution’s case, whether that caused prejudice, whether further directions were required, and whether the differing verdicts made the conviction unsafe.

Appeal dismissed. The conviction was safe.

1. Departure from the prosecution case. The judge and jury are not bound by the way the prosecution or any other party presents the case. Applying R v Coutts [2006] UKHL 39, and supported by Von Starck v R [2000] 1 W.L.R. 1270 and R v Kinse Adid [2021] EWCA Crim 581, the judge must leave to the jury any reasonable conclusion open on the whole evidence, even if it was not advanced by a party. A possibility may be withheld only where it is wholly incredible or too tenuous for a reasonable jury.
2. Fairness and prejudice. Departing from the prosecution case may cause prejudice, but prejudice means unfairness beyond the ordinary disadvantage of having to answer an unanticipated case. The trial judge must select safeguards appropriate to the particular case. They may include a focused direction, further time, narrowing the jury’s options or, exceptionally, discharge of the jury. The principles illustrated by R v McCormack [1969] 2 QB 442, R v Mason [2012] EWCA Crim 2635, R v Ali [2014] EWCA Crim 948 and R v Acheampong [2017] EWCA Crim 1289 were applied. No material prejudice was established here.
3. Evidence of a co-defendant. There is no automatic requirement for a corroboration-style warning. Under R v Makanjuola [1995] 1 WLR 1348 and R v Stone [2005] EWCA Crim 105, the need, strength and terms of any warning depend on the evidential basis for suspected unreliability, the issues, and the content and quality of the evidence. The neutral direction given here, applying to both defendants, was satisfactory. A warning that Bello’s evidence was false would have been unfair to him.
4. Different verdicts. The jury was entitled to assess each defendant separately and to accept or reject different parts of the evidence. The acquittal of Bello and conviction of the appellant were not logically inconsistent or perverse: R v Dhillon [2010] EWCA Crim 1577 was applied.

The appeal was dismissed.

• Court of Appeal (Criminal Division): The appeal against the manslaughter conviction was dismissed and the conviction held safe: [2022] EWCA Crim 1010.