R v Imran Khan

On an appeal against a discretionary ruling admitting bad-character evidence, appellate interference is justified only where the ruling falls outside the legitimate scope of the discretion, including where it is Wednesbury unreasonable. A single uncharged allegation may be admitted where similarities materially assist assessment of propensity or credibility. The jury must be sure that the allegation is true, consider any late-disclosure prejudice, retain focus on the charged offence and avoid convicting wholly or mainly on the additional evidence. Limited evidence and a fair opportunity to meet it may prevent unfair satellite litigation. On sentence, findings by the trial judge and guideline categorisation should be upheld where they were open on the evidence.

The appellant was convicted at Southwark Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and sentenced to 18 months’ imprisonment. He appealed against conviction, principally challenging the admission under section 101(1) (d) of the Criminal Justice Act 2003 of evidence concerning an uncharged sexual-assault allegation by another man. He also challenged the categorisation, aggravating and mitigating factors, and immediate custody. The central issues were whether admission of the evidence made the conviction unsafe and whether the sentence was wrong in principle or manifestly excessive.

Both appeals were dismissed. The conviction was safe and the sentence was upheld.

1. Conviction and bad character evidence. The trial judge had applied the correct legal principles and had exercised a fact-sensitive discretion. The Court of Appeal would interfere only if the decision was Wednesbury unreasonable or outside the legitimate scope of that discretion. The judge was entitled to assess the strength of the prosecution case after hearing the complainant’s evidence and cross-examination.
2. The evidence concerning the second complainant was admissible on both propensity and coincidence grounds. The relevant similarities included the complainants’ relative youth, the short period between the incidents and their first sharing a bedroom with the appellant, the encouragement to take an intoxicant, the fact that both were in bed, and the appellant’s explanation that their conduct reflected anxiety or confusion about sexuality. The differences also had to be considered. The Court accepted the trial judge’s treatment of the coincidence reasoning reflected in Freeman and Crawford [2008] EWCA Crim 1863, McAllister [2008] EWCA Crim 1544 and Hay [2017] EWCA Crim 1863.
3. The jury direction was clear and fair. It required the jury to remain focused on the charged allegation, use the additional evidence only if sure it was true, take account of any disadvantage caused by the late disclosure, disregard it if the encounter may have been consensual, and avoid convicting wholly or mainly on that evidence. The evidence did not produce unfairly prejudicial satellite litigation. The appellant gave evidence, called a witness and made strategic decisions about other available material. The trial was fair.
4. Sentence. The trial judge, having presided over the evidence, was best placed to determine the factual basis for sentence. His findings, including those concerning violence, were open to him. The offence was properly placed in category 2A: the complainant was particularly vulnerable in the context of the relevant guideline, and culpability A was established by the use of alcohol to facilitate the offence. A two-year starting point was therefore available.
5. The judge balanced the aggravating and mitigating factors and reduced the sentence to 18 months. He gave anxious consideration to suspension and took account of personal mitigation, rehabilitation, the appellant’s mother’s care needs and the absence of poor compliance. He was entitled to conclude that the seriousness of the culpability and harm meant appropriate punishment required immediate custody.

1. Court of Appeal (Criminal Division). The Court dismissed the appeals against conviction and sentence: [2022] EWCA Crim 1592.
2. Southwark Crown Court. Following trial before Mr Justice Jeremy Baker and a jury, the appellant was convicted of sexual assault and sentenced to 18 months’ imprisonment.