R v Waseem Khan & Anor

Late disclosure of digital material does not automatically make evidence inadmissible or render a conviction unsafe. Fairness must be assessed in the circumstances, including the nature and provenance of the material, the opportunity to challenge it, and its significance to the prosecution case. Defence requests for digital data should identify the required format and explain why it is needed. If delay risks unfairness, prompt case-management directions should be sought. Messages found on a defendant’s phone may support an inference that the defendant sent or received them. Bad-character evidence may be admitted where relevant to propensity and admission would not be unfair. Voice recordings may be compared with other recordings where the quality is sufficient and the jury receives appropriate caution.

Waseem Khan, Taswir Mohammed and Mohammed Jahangeer were convicted in the Crown Court at St Albans of conspiracy to supply cocaine. Khan appealed against conviction and renewed an application for leave to appeal against sentence. Mohammed and Jahangeer sought extensions of time to renew applications for leave to appeal against conviction.

Khan challenged the admission of text and voice messages, the late provision of raw telephone data, the use of the messages as bad-character evidence, and directions concerning voice identification. Mohammed challenged the refusal of a submission of no case to answer. Jahangeer challenged the refusal to discharge the jury after admission of his previous conviction for conspiracy to supply a class A drug.

Waseem Khan. The appeal against conviction was dismissed and leave to appeal against sentence was refused. The conviction was not unsafe because the central issue concerned whether Khan had used four phones associated with the conspiracy. The jury had been properly directed to focus on that evidence, with the later messages capable of providing only additional support.

1. Late provision of raw telephone data was regrettable. Defence requests should identify precisely what is sought, the required format, and the reasons for the request. If delay threatens fairness, prompt case-management directions should be sought. Failure to take those steps may create a risk that evidence will need to be excluded in another case.
2. Under section 78 of the Police and Criminal Evidence Act 1984, the judge was entitled in principle to admit messages found on a phone Khan accepted was his. Khan and a defence expert could explain possible third-party interference. The messages were relevant to propensity to deal in class A drugs, and their admission was not so unfair that exclusion was required.
3. The judge was entitled to permit comparison of the voice messages with the police interview recording. The recording quality was sufficient, and the jury received adequate warnings about the difficulties of voice identification. That approach was consistent with R v Flynn [2008] 2 Cr.App.R 20.

Taswir Mohammed. The applications for extensions of time and leave to appeal were refused. There was evidence from which a jury could conclude that Mohammed had joined the conspiracy and that it concerned a class A drug.

Mohammed Jahangeer. The applications for extensions of time and leave to appeal were refused. His fingerprints on bags containing more than £54,000, handed to the conspiracy’s organiser, constituted significant evidence. The judge was entitled to leave the case to the jury rather than discharge it.

1. Court of Appeal (Criminal Division): The court dismissed Khan’s appeal against conviction, refused leave to appeal against sentence, and refused extensions of time and leave to appeal against conviction for Mohammed and Jahangeer. The judgment is reported at [2023] EWCA Crim 347.
2. Crown Court at St Albans: On 23 November 2021, the defendants were convicted of conspiracy to supply cocaine. On 5 January 2022, sentences of 15 years, eight years and 11 years’ imprisonment were imposed respectively.