Khan, R v

LADY JUSTICE HALLETT: The five appellants have the leave of the Full Court to argue one ground of appeal, namely whether the evidence against them was sufficient to justify a conviction for conspiracy to murder as opposed to a conspiracy to cause grievous bodily harm. The trial judge, Holroyde J, reached the conclusion that it was and he rejected a submission of no case. On 29th November 2011 a jury at Stafford Crown Court convicted all five men of conspiracy to murder. On 21st December 2011 the three adult men, Maroof, Rashid and Khan were sentenced to 24 years' imprisonment and the two younger men, Saraj and Jabbar, were sentenced to 20 years' detention in a young offender institution.

The facts can be relatively shortly stated. The victim, Mr Afsar, had received threats to his life as result of an incident in which his sons had been badly assaulted. The attackers were prosecuted and the sons had agreed to testify against them. Attempts to dissuade them failed. Their assailants were convicted and sent to prison. The threats to Mr Asaf senior included a threat to kill him and a threat that “things were going to get worse” (presumably worse than the beating his sons had suffered. They were taken seriously. Mr Afsar had CCTV equipment fitted in his home and an alarm connected to the local police station.

At 11 o'clock on Friday 4th June 2010 Mr Afsar left his home intending to drive to his restaurant. He put the keys in the ignition and was about to adjust the driver's seat when he heard a screech of tyres from behind him. The car braked sharply alongside his car. The vehicle was later identified as a stolen Vauxhall Vectra bearing false number plates. Both rear doors opened and two masked men of Pakistani origin ran towards him. He thought they had come to murder him and feared for his life. The first man ran to his open passenger window carrying a mid sized sawn-off shotgun. Mr Afsar leaned back in his seat with his hands raised shouting for help. Mr Middleton, a passer-by, said he saw the gunman open the door and fire. Mr Afsar felt something whistle past his head and lapsed into unconsciousness. Both men ran back to their car. The driver, a third man of Pakistani origin, was forced to do a three point turn because of a lorry in his path but he managed to make good their escape.

Mr Afsar's injuries were extremely serious. They consisted of a shattered fracture of the lower shin bone including damage to tissue, cartilage, arteries and nerves. At the time of trial he had undergone five operations and required more. The Vectra (stolen the previous February) was later found abandoned. It had been set alight but officers found matches and a green plastic petrol container within. Under the driver's seat was a spent shotgun cartridge, most likely from the gun used to shoot Mr Afsar.

The prosecution put their case on two bases: this was either a conspiracy to kill or it was a conspiracy to cause grievous bodily harm. There was ample evidence, it is conceded, of a conspiracy some kind. This included CCTV footage, cell site analysis, fingerprints, burn injuries, documents relating to the purchase of equipment used in the shooting and various journeys made by the accused and vehicles attributed to them. The shooting had been the culmination of several days of careful planning and preparation between 22nd May and 5th June 2010. Not all the appellants were involved throughout the whole of the period but it is clear there had been a series of trips from their homes in Birmingham to the victim's home in Stoke on Trent for the purposes of reconnaissance and preparation.

The prosecution conceded, at trial that given the evidence both of the victim himself and Mr Middleton there was the possibility that at the last minute the gunman may have changed his mind and aimed to maim rather than to kill. But, Mr Howker QC, on behalf of the Crown, never conceded that had been the plan all along. He insisted that the extent of the evidence indicated a much more serious plot to kill.

The defence case was that the appellants were not involved in the shooting, in its planning or in any agreement to shoot or harm the victim. Alternatively, they argued the evidence pointed to a conspiracy to cause grievous bodily harm rather than a conspiracy to kill. They relied upon the evidence which suggested the gunman had aimed at the victim's legs rather than his head or vital organs. Mr Middleton, for example, said in cross-examination, that the shooter was very close to the complainant and could have shot him in the head or chest but pointed the gun downwards as if aiming for his leg. Mr Afsar himself, when first interviewed, said that the gunman had pointed the gun downwards. Forensic examination of the car also suggested that the shot was fired towards the complainant's lower leg by a person standing at the front passenger doorway from a distance of less than 5 feet from the leg.

Khan, Rashid and Jabbar were arrested on 18th June, Saraj on 22nd June and Maroof on 29th October 2010. At the time of his arrest Jabbar was noted to have a burn injury to his hand which it was alleged had been caused when the Vectra had been set fire to. In interview each appellant made no comment but four of them submitted prepared statements denying any involvement. Only Rashid gave evidence at trial, insisting that any involvement with his co-accused, any journeys he had made had been primarily connected to his business, the sale of vehicles.

A submission of no case to answer was made by all defence counsel in relation to count 1. The argument was a simple one: that no reasonable jury, properly directed, could be sure there was a plan to kill rather than maim.

In a carefully crafted and reasoned ruling, Holroyde J accepted that defence counsel had advanced cogent submissions of no case. Nevertheless, having reviewed the evidence in total, he concluded that the points they made were all for the jury to consider. They were not grounds for withdrawing the case from them. He accepted the Crown’s submission that the evidence of planning and preparation, of carrying and using a firearm and the attempt to burn the Vectra after the shooting were consistent with a plan to kill. Finally and crucially, there was the unchallenged evidence from the complainant, Mr Afsar, that he had been threatened with death and told his position could get “worse”. The threats to kill were linked to a trial which had concluded only a month before the shooting and the trial appeared to be the only explanation or motive for the shooting. On that basis Holroyde J decided a reasonable jury, properly directed, would be entitled to conclude there was a plan to kill, notwithstanding the fact that the gunman may have changed his mind at the last minute.

The single ground of appeal common to all applicants is that the judge should have allowed a submission of no case to answer in relation to count 1. It remains common ground that there was sufficient evidence to leave to the jury of an agreement to cause really serious harm.

Mr Blaxland QC, who was not trial counsel, has advanced the arguments on behalf of all the appellants with his customary skill and brevity. He accepted that the test, as ever, on a submission of no case was the well-known test taken from the decision in Galbraith [1981] 1 WLR 1039: could a reasonable jury, properly directed, properly convict of the offence of conspiracy to murder?

However, he submitted the test required something of a gloss in that the evidence was circumstantial and the jury was invited to draw inferences from primary facts as to what the conspirators had agreed. Where a jury is invited to convict on the basis of inferences, he argued, they should be directed that they may only draw an inference of guilt if no other inference is realistically possible.

He drew to our attention a number of decisions of this court in which the court has considered the test to be applied when a judge is confronted by a submission of no case in such circumstances. He placed reliance upon the judgment n R v Goddard & Fallick [2012] EWCA Crim 1756. Aikens LJ having reviewed several of the authorities (including R v Anthony Darnley [2012] EWCA Crim 1148) drew the strands together at paragraph 36:

Mr Howker preferred to rely on passages in the judgment of Darnley in particular paragraph 21 of Elias LJ’s judgment. He said this:

We too prefer the approach suggested by Elias LJ in Darnley. In our judgment, there is a danger of over analysing the test to be applied. It is essential to focus on the traditional question whether or not there is evidence (taking the prosecution case at its highest) upon which a reasonable jury, properly directed, could infer guilt. If any elaboration is required, about which we have our doubts, the question on the facts here would be: taking the prosecution case at its highest, was there evidence upon which a reasonable jury, properly directed, could properly infer a conspiracy to kill and reject a conspiracy to cause grievous bodily harm as a realistic possibility? This is in effect the question Holroyde J posed for himself.

Having posed the question, we consider the answer. Mr Blaxland invited us to approach the evidence in this way: this was a carefully planned attack on the victim. Nothing was left to chance, including preparations for escaping from the scene and destruction of the evidence. The nature of such a well planned enterprise can be inferred from what actually occurred. The victim was shot in the lower leg. There was nothing to prevent the gunman shooting Mr Asfar in the head or chest. The only reasonable inference, therefore, is that the planned intention was to injure and not to kill. To put it colloquially: ‘the proof of the pudding was in the eating’.

Mr Blaxland invited the court to reject the prosecution submission, adopted by the judge, that there was a real possibility for the jury to consider that the gunman had lost his nerve at the last moment. He criticised what he saw as an over reliance on the evidence that Mr Afsar had previously received threats to kill. There was no evidence that the applicants were responsible for those threats, and, whoever made them, it did not follow there was any intention to put them into effect let alone an agreement to do so. Accordingly, it was his contention that the fact that there had been previous threats to kill did not, standing alone, provide a sufficiently sound basis for rejecting the realistic possibility that what actually occurred is what was meant to have occurred. The plan was to injure and not to kill.

If there was a plan to kill Mr Afsar, Mr Blaxland submitted that those responsible were unlikely to have announced their intentions in advance or put them in to effect in daylight hours outside Mr Afsar's home address. The prosecution case that the applicants participated in a plan to kill as opposed to cause serious injury was no more than “an improbable theory”.

Despite Mr Blaxland’s eloquence we are forced to disagree. This was a classic case fit for consideration by a jury. Had Holroyde J withdrawn the conspiracy to murder charge from the jury, he would have been usurping their function. Each of the arguments put before us is an argument for a jury to consider. As Holroyde J observed, this was an extraordinarily well-planned enterprise, if the conspirators intended simply harm or to cause fear. Secret meetings took place, plans were laid, and a car used which had been stolen previously and fitted with false number plates. One gunman was armed with a sawn-off shotgun: a potentially lethal weapon wherever the shot is aimed. After the shooting attempts were made to destroy the evidence.

All this must be set against a background of threats and intimidation of the victim which included not merely a threat to harm but specifically threats to kill. Mr Afsar's sons had already suffered a serious beating and Mr Asfar had been warned things could get worse if they testified. They did testify. The planning of the shooting followed not long after. There was no other motive for an attack as serious as this. It was open to the jury to infer the timing of the plot was not coincidental and the threats were not idle.

For all those reasons, therefore, we are satisfied that there was sufficient evidence to leave to a jury. A reasonable jury, properly directed, would have been entitled, properly, to reject conspiracy to cause grievous bodily harm as a realistic possibility. For those reasons the appeals of all five men must be dismissed.

We understand that any applications as far as sentence is concerned have now become redundant.