R v Ehsan Khan & Anor

A case should not be treated as depending on weak identification merely because the identification has features capable of criticism. The evidence must be assessed as a whole. Bad-character evidence is not inadmissible where the identification is not inherently weak and is materially supported by other evidence. For dangerous offenders, the court must first consider whether a discretionary life sentence is justified and consider an extended sentence only if it is not. A clearer warning that life imprisonment is under consideration is desirable, but its absence will not necessarily require relief where the issue was apparent and there was a full opportunity to make submissions. Youth and immaturity are significant, but may be outweighed by grave offending and a high imminent risk of serious harm.

On 16 July 2024, the applicants were convicted at the Crown Court at Luton of attempted murder and possession of a bladed article. On 3 September 2024 they received life sentences with minimum terms of 10 years and 344 days.

Khan sought an extension of time and renewed applications for leave to appeal against conviction and sentence. He challenged the admission of a previous bladed-article conviction as bad-character evidence and the rejection of his submission of no case to answer. Hussain renewed his application for leave to appeal against sentence. Both applicants challenged the discretionary life sentences and the adequacy of the warning that such sentences were under consideration.

Disposition. The extension of time sought by Khan was granted. His renewed application for leave to appeal against conviction was refused. Both applicants were refused leave to appeal against sentence.

1. Conviction. The court rejected the argument that the previous conviction had been admitted merely to bolster a weak identification case. The complainant had been in close conversation with the assailants for nearly two minutes, had looked directly at them, and knew Khan from school. Although the circumstances created difficulties for identification, the evidence was not inherently weak. It was also supported by substantial circumstantial evidence, including the weapon, the distinctive bag, telephone contact, cell-site evidence, Khan’s travel arrangements and the motive for the attack. The principle associated with R v Hanson [2005] EWCA Crim 824 therefore did not prevent admission of the bad-character evidence.
2. The same evidential assessment disposed of the submission of no case to answer. The identification evidence did not stand alone and, taken with the other evidence, was capable of supporting the prosecution case. The failure to hold an identification parade had been addressed by an appropriate jury direction, and no complaint was made about that direction.
3. Sentence. A clearer statement that a discretionary life sentence was under consideration would have been desirable. However, the pre-sentence reports addressed dangerousness, the representatives ought to have appreciated that life imprisonment was an available option, and both applicants had a full opportunity to make submissions on appeal. The procedural complaint therefore did not justify relief.
4. Following Attorney General’s Reference No 27 of 2013 (Burinskas) [2023] EWCA Crim 336, the sentencing court had first to consider whether life imprisonment was justified and, only if it was not, whether an extended sentence should be imposed. Life sentences were justified by the revenge motive, the public and violent attack, the repeated stabbing, permanent physical and psychological harm, the previous bladed-article convictions, lack of remorse and the high, imminent risk of serious harm on release. Youth and relative immaturity were significant mitigating factors, but did not outweigh those considerations. The trial judge was well placed to assess the risk and the appropriate means of addressing it.

1. Court of Appeal (Criminal Division): In R v Ehsan Khan & Anor, [2026] EWCA Crim 180, Khan's extension of time was granted, but leave to appeal against conviction and sentence was refused. Hussain's application for leave to appeal against sentence was refused.
2. Crown Court at Luton: HHJ Walden-Smith convicted both applicants on 16 July 2024 and sentenced them on 3 September 2024 to life imprisonment with minimum terms of 10 years and 344 days.