Khan Abdul v R

A conviction is not unsafe merely because disclosure was imperfect. An appellant must identify material capable of affecting the safety of the verdict; the court will not speculate that undisclosed material may exist. Late disclosure causes no unfairness where the defence can use the material and no actual prejudice is shown.

Jury deliberations are confidential. Inquiry into them is permitted only in exceptional circumstances. An equivocal allegation of racial profiling may properly be addressed by firm directions and focused questions requiring each juror to confirm that any verdict will be based solely on the evidence and free from bias. A post-trial complaint about rapid deliberations, juror pressure and ambiguous racial comments does not, without more, justify an investigation into deliberations.

The applicant was convicted at Birmingham Crown Court of assault by penetration and rape of C1, and rape of C2. His case at trial was that the sexual activity with both complainants was consensual.

His application for leave to appeal against conviction was referred to the full court. He alleged material disclosure failures, including late disclosure of a witness statement and video material, and challenged the judge’s response to a juror’s note alleging racial profiling during deliberations. After conviction, the discharged juror wrote to the court expanding her concerns. The applicant sought an investigation by the Criminal Cases Review Commission.

1. Application for leave to appeal refused. The general disclosure complaint was speculative. Although disclosure difficulties had arisen during the trial, the applicant identified no further material which might undermine the prosecution case or assist the defence. The court could not infer that unknown defects in the disclosure process rendered the convictions unsafe.

2. The particular disclosure matters caused no material unfairness. The late statement and video concerning Mr Mujtaba were ultimately disclosed, the defence was able to call him, and no prejudice affecting the safety of the convictions was established. The judge was entitled to refuse to reopen D.C. Powell’s cross-examination: the disclosure exercise had already been extensively explored before the jury. The omission of disclosure evidence from the evidential summing up was also immaterial, since it was collateral to the central consent issues and had been addressed in counsel’s speeches. Section 78 of the Police and Criminal Evidence Act 1984 did not apply to material on which the prosecution did not propose to rely, though the judge retained an inherent jurisdiction to protect trial fairness.

3. The judge dealt properly with the juror’s first note. As explained in R v Essa [2023] EWCA Crim 608, confidentiality of jury deliberations is integral to the jury system and exceptions are narrow. The note’s reference to racial profiling was equivocal and further inquiry risked entering forbidden territory. The judge’s directions and written questions adequately tested whether every juror could decide solely on the evidence and without racial bias. Her approach was at least as protective as that approved in Gregory (1998) 25 EHRR 577. Discharging the juror who could no longer continue did not require discharge of the remaining eleven jurors, who had confirmed their ability to fulfil their oath.

4. No investigation by the Criminal Cases Review Commission was warranted. Under Thompson [2010] 2 Cr App R 27, an inquiry into deliberations may exceptionally be permissible where there is a complete repudiation of the jury’s oath or use of extraneous material. The juror’s post-conviction letter, properly analysed, alleged neither. It provided no basis to conclude that the jurors who convicted the applicant were, or might have been, biased.

• Court of Appeal (Criminal Division): The application for leave to appeal against conviction was referred to the full court and refused.
• Birmingham Crown Court: On 13 April 2023, the applicant was convicted of assault by penetration and rape of C1, and rape of C2.