R v Khalifa Mughal & Anor

A submission of no case to answer succeeds where no properly directed jury could convict on the prosecution evidence taken at its height, or where the evidence is too tenuous to leave to the jury. Contradictions in a witness’s account, their explanation and witness reliability are ordinarily jury matters. In a joint enterprise, continuing common purpose may be inferred from the overall course of conduct, even without direct contact after one participant’s remand. A stay based on delay or lost evidence is a last resort. The court must assess the evidence lost, its importance, resulting prejudice and whether judicial directions can secure a fair trial.

Following a joint trial at Bradford Crown Court, Khalifa Mughal was convicted of perverting the course of justice, rape and supplying a controlled drug. Waseem Adalat was convicted of three counts of rape. Both renewed applications for leave to appeal after refusal by a single judge.

Mughal challenged the refusal of no-case submissions concerning the alleged continuing joint enterprise and the evidence of drug supply. Adalat argued that the prosecution’s delay, loss of his passport and failure to make timely travel enquiries made a fair trial impossible and required a stay for abuse of process. Both applicants also sought extensions of time. The central issues were whether the proposed grounds were arguable and whether the proceedings had become unfair.

The court refused both applications for extensions of time and both renewed applications for leave to appeal.

1. On Mughal’s no-case arguments, the court applied the principles in R v Galbraith (1981) 73 Cr.App.R 124 CA. The question was whether a properly directed jury, taking the prosecution evidence at its height, could convict, rather than whether every jury would do so.

2. On the perverting-the-course-of-justice count, the absence of direct contact between Mughal and Islam after Mughal’s remand was relevant but not decisive. The overall course of conduct permitted a properly directed jury to infer that the two men had embarked on a joint effort and that Islam’s subsequent conduct continued that effort, even if Mughal was unaware of its precise details. Evidence of the February 2008 incident was admitted against Islam, not Mughal, subject to appropriate directions. A suitable direction could prevent injustice in a multi-handed trial.

3. On the drug-supply count, the contradiction in the complainant’s evidence and the explanation for it were matters for the jury. The prosecution was not required first to obtain a further explanation from the witness before the count could be left to the jury.

4. In Adalat’s case, the court applied the guidance in D [2013] EWCA Crim 1592. The court had to consider the evidence lost, its importance in the context of the case, the resulting prejudice and whether judicial directions could compensate for it or a fair trial was impossible.

5. The lost passport and delayed travel enquiries might have provided only a partial alibi. Although prejudicial, they were not crucial enough to make a fair trial impossible. Full directions concerning delay, the lost evidence and alibi were sufficient. A stay, being a remedy of last resort, was not justified.

• Court of Appeal (Criminal Division): The renewed applications for extensions of time and leave to appeal were refused: [2023] EWCA Crim 1450. Mughal’s sentence had separately been reduced on appeal, and Adalat’s sentence had separately been increased following an Attorney General’s Reference.
• Bradford Crown Court: Following trial, Mughal was convicted of perverting the course of justice, rape and supplying a controlled drug. Adalat was convicted of three counts of rape.
• Single judge: Refused leave to appeal, leading to the renewed applications.