R v Mohammed Ali Khan

A conviction cannot stand for an offence which had not been created when the alleged driving occurred. Where a defendant has pleaded guilty to such an offence, the Court of Appeal may exercise its statutory power to substitute a conviction for the applicable existing offence.

On resentencing after substitution, the invalid sentence falls away. The court may take account of punishment already substantially served when selecting a lawful and proportionate disposal.

R v Mohammed Ali Khan concerned a collision on 27 May 2022 in which a pedestrian suffered serious injuries. The applicant pleaded guilty in the Crown Court at Birmingham to causing serious injury by careless driving, after the Crown accepted that plea instead of the original count of causing serious injury by dangerous driving.

The parties later identified that the offence to which he pleaded guilty did not exist on the date of the collision. The Registrar referred his applications for a 319-day extension of time and for leave to appeal against the conviction. The central issues were whether the conviction should be corrected by substitution and what sentence should follow.

1. The court granted the extension of time and leave to appeal. It substituted a conviction for careless driving.

2. The conviction for causing serious injury by careless driving could not stand. That offence was created only with effect from 28 June 2022, when section 87 of the Police, Crime, Sentencing and Courts Act 2022 amended section 2C of the Road Traffic Act 1988. The collision occurred before that date.

3. In the agreed circumstances, the court exercised its power under section 3A of the Criminal Appeal Act 1968 to substitute the conviction for careless driving. The sentence imposed for the invalid offence consequently fell away.

4. The applicant had substantially served the suspended sentence order. Although careless driving carried a maximum Level 5 fine, a fine was inappropriate. The court imposed a conditional discharge for one month.

5. Disqualification was discretionary. The court disqualified the applicant until 17 April 2025, reflecting the period already served. It ordered the obligatory endorsement of his licence, but no penalty points, and reinstated the £250 costs order.

• Court of Appeal (Criminal Division) — granted an extension of time and leave to appeal, set aside the conviction for the non-existent offence, substituted a conviction for careless driving under section 3A of the Criminal Appeal Act 1968, and resentenced the applicant: [2025] EWCA Crim 603.
• Crown Court at Birmingham — convicted the applicant on 29 January 2024, following his guilty plea, of causing serious injury by careless driving; sentenced him on 11 March 2024.