R v Waseem Khan & Anor

On 23 November 2021 in the Crown Court at St. Albans, Waseem Khan, Taswir Mohammed and Mohammed Jahangeer were convicted of conspiracy to supply a class A drug, namely cocaine. On 5 January 2022 Waseem Khan was sentenced to 15 years' imprisonment and Taswir Mohammed was sentenced to eight years' imprisonment. Mohammed Jahangeer was sentenced to 11 years' imprisonment for count 1 and received no separate penalty on a separate count.

Waseem Khan appeals against conviction with the leave of the single judge. He also renews his application for leave to appeal against sentence, leave having been refused by the single judge. Taswir Mohammed was refused leave to appeal against conviction and applies for an extension of time to renew his application. Mohammed Jahangeer was also refused leave to appeal against conviction and applies for an extension of time to renew his application. There may or may not be an application to renew leave to appeal against sentence but that matter is not before us today.

The facts in brief are as follows. Between 1 April 2019 and 4 October 2019 Ansar Akram masterminded a complex and large-scale conspiracy to supply high quality cocaine across the country from his base at Thumpers, Hemel Hempstead. He used various couriers to deliver cocaine to customers across the country before arranging for the profits to be delivered to his brother Ajmal Akram who effectively acted as his banker.

There were four trials relating to this conspiracy. At the first trial Ansar Akram pleaded guilty on the second day to conspiracy to supply cocaine and Ajmal Akram was convicted of the offence. At the second trial three of the couriers, one of whom was Raja Khan, pleaded guilty. Three other co-conspirators were convicted at the third trial. Two others, including Ryan Brockley from Leicester, pleaded guilty before their trials. The fourth trial involved Waseem Khan, Taswir Mohammed and Mohammed Jahangeer.

The prosecution case was that Taswir Mohammed and Mohammed Jahangeer were cocaine wholesalers who purchased drugs from Ansar Akram. Waseem Khan was a broker or a middleman, liaising between Ansar Akram and his customers, those customers including Taswir Mohammed and Mohammed Jahangeer.

To prove the existence of a conspiracy the prosecution relied on the previous convictions of the other co-accused in the other trials.

To prove the case against Waseem Khan the prosecution relied on the following evidence. First, the prosecution submitted that Waseem Khan used four "tumblr" phones to contact Ansar Akram and customers before and after drugs were delivered. “Tumblr” phones generate false IMEI numbers, thereby making it difficult to trace a call to a handset. The four phones were used at different periods.

Waseem Khan only accepted the attribution to him of one phone ending in the numbers 6528 and denied any connection with the four tumblr phones. The prosecution relied on the expert evidence of a person experienced in digital media to establish that the four tumblr phones were also attributable to Waseem Khan. That evidence was said to demonstrate that the pattern of use of the four phones, by reference to the masts to which they connected, were similar to the pattern of use of the phone that Waseem Khan accepted was his own phone. Further, there was evidence of a pattern whereby Waseem Khan's accepted 6528 number would call Ansar Akram and then immediately afterwards Ansar Akram would call back on the tumblr phone being used at that time. There was evidence that Waseem Khan's phone and one of the tumblr phones were used at the same time at the same locations. Furthermore, a handset was seized from a drawer in a desk at 40A Kimpton Road where Waseem Khan had an office and where he was arrested. Evidence showed that SIM cards for two of the tumblr phones had at various times been placed in that handset.

Secondly, the prosecution relied on the surveillance evidence showing couriers meeting customers shortly after periods of telephone activity between Waseem Khan, Ansar Akram and the customers. The prosecution submitted that this demonstrated that Waseem Khan was acting as a broker.

Thirdly, the prosecution relied on the fact that Waseem Khan did not give evidence at his trial.

Fourthly, the prosecution relied on text messages and voice recordings from Waseem Khan's own iPhone. The prosecution submitted that the messages and voice recordings showed that Waseem Khan was involved in drug dealing after the conspiracy ended. They submitted that that showed a propensity to deal in illegal drugs and so made it more likely that Waseem Khan was the user of the four tumblr phones.

To prove the case against Taswir Mohammed, the prosecution relied on the following. First, they submitted that the telephone evidence showed that between 25 and 26 July 2019 Taswir Mohammed was in contact with Waseem Khan. Following these calls Waseem Khan contacted Akram. It was the prosecution case that Taswir Mohammed was arranging to purchase cocaine from Akram through Waseem Khan.

Secondly, the prosecution relied on cell site evidence. At the same time on 23 July 2019 Taswir Mohammed's phone shared a mast with one of the convicted couriers, Raja Khan's, phone.

Thirdly, the prosecution relied on surveillance evidence from 29 July 2019. Officers observed Raja Khan deliver money to Akram before travelling to an address in Milton Keynes where it was accepted the cocaine was stored. He then went to an address in Aylesbury associated with Taswir Mohammed. It is accepted that he met Taswir Mohammed in Aylesbury. The prosecution case was that Raja Khan went into a property at 12 Oak Green which was connected with Taswir Mohammed. Approximately 10 minutes later Raja Khan left and returned to Milton Keynes. He spoke to Waseem Khan by telephone before returning to the Oak Green area of Aylesbury hours later where he met another unidentified male. Raja Khan then travelled to Leicester where he handed over cocaine to another conspirator, Ryan Brockley. Finally, the prosecution relied upon the failure by Taswir Mohammed to give evidence.

To prove the case against Mohammed Jahangeer, the prosecution ultimately relied on the following. First, there was surveillance evidence and cell site evidence from 30 July 2019. The prosecution submitted that Raja Khan, one of the convicted couriers, travelled to a location near Mohammed Jahangeer's parents' home. Mohammed Jahangeer was not living there at the time. A police officer described seeing a man approach Khan's car and hand him a small bag. Cell site evidence suggested that Mohammed Jahangeer's phone and Raja Khan's phone used masts in the same general area of Sheffield at the same time.

Secondly, and more significantly, the prosecution relied on cell site evidence and in particular fingerprint evidence from 2 October 2019. They submitted that the cell site evidence demonstrated that Ansar Akram used the same cell mast as Mohammed Jahangeer whilst Akram was in Sheffield. Mohammed Jahangeer accepted that they met. Following Ansar Akram's arrest later that day, his house in Hemel Hempstead was searched and a bag containing £54,950 was recovered. The money was in one plastic bag which was placed inside a second plastic bag. Mohammed Jahangeer's fingerprints were found on the outside bag and the outside of the inner bag. Mohammed Jahangeer accepted handling the bag and pleaded guilty to transferring criminal property to reflect this evidence.

Thirdly, Mohammed Jahangeer had a previous conviction for conspiracy to supply a class A drug, heroin, not as in this case cocaine. Fourthly, the prosecution relied on his failure to give evidence.

The jury convicted all three of conspiracy to supply a class A drug.

We deal first with Waseem Khan's appeal against conviction. Waseem Khan had denied being involved in the conspiracy. He had denied owning or using the tumblr phones. He had denied that he was responsible for the text messages or voice messages found on his phone. He did not give evidence at his trial.

In his written and oral submissions, Mr Carse for Waseem Khan submitted that the judge erred in admitting evidence of the text messages. Some of the phone messages had been served on the defence on 13 October 2020. The defence had instructed an expert in May 2021 and he had requested the raw telephone data. A number of requests were made for this raw data between June and August 2021. It seems that the prosecution and the defence agreed that the raw data would be provided in a particular format. On 10 August 2021 the Crown Court ordered that the prosecution must provide a download of the information within seven days. On 17 August 2021 the prosecution provided an Excel and a PDF document of the downloaded texts and messages. The defence expert who had been instructed notified those instructing him that he wished to have the data in an advanced logical or file system format in order to enable him to conduct certain analytical tests. The matter was listed for a hearing on 27 September 2021. It appears that finally on 8 October 2021, that is four days before the trial was due to begin, the prosecution provided the downloaded information in the format required by the defence. By that stage however the defence expert was unavailable to conduct the tests. On 11 October 2021, the day before the trial began, further messages including audio messages were served by the prosecution on the defence.

An application was made to exclude the text messages and the voice messages as, given the late service of the raw data, the defence said they were not in a position to check the data and instruct an expert if needed for a proper analysis of the data. The application stated that the prosecution had failed in its duty to disclose fundamental material and so an order was sought excluding any analysis of the messages.

The judge held a voir dire at which an expert witness, Stuart Banks gave evidence on behalf of Waseem Khan. In his ruling the judge described the nature of the text messages. What are described as "non-secret messages" are stored on the cloud and can be accessed from any device but you need a code number which is sent by text to the phone of the account owner. What are called "secret messages" are stored on the device being used, that is in this case stored on Waseem Khan's own phone.

As the judge noted in his ruling, counsel for Waseem Khan had submitted that Waseem Khan had instructed him that the messages were not his. As the judge noted, there was no evidence of this. The expert had given evidence saying that he had carried out a summary or cursory consideration of the Excel and PDF format material and there was nothing, no red flags, to lead him to believe that there was any discrepancy in terms of the information in the schedule being different from the information on the phone. However, he wanted to see the raw data to carry out checks to confirm that that was the case.

As the judge said, it was disappointing that the prosecution were not more efficient in understanding what it was that the defence expert was seeking and providing the material at an early stage. Ultimately, however, the position was that the messages were found on a phone that Waseem Khan accepted was his own phone. There was no evidence that a third party had interfered in some way with his text account. Contrary to the submissions of counsel for Waseem Khan, the defendant Waseem Khan could have a fair trial. The judge ruled that Waseem Khan could give evidence about the messages and explain why he said they were not his. The defence expert could give evidence about how the system worked and how a third party could access the information from a different device. The judge ruled that the messages could be adduced in evidence.

The judge further ruled that the evidence of the text messages was evidence of bad character. It related to a period outside the dates of the alleged conspiracy. He considered that it was relevant to an important issue between the prosecution and the defence, namely whether Waseem Khan was responsible for the tumblr phones and had used them and was a broker or a middleman in a conspiracy to supply class A drugs. He ruled that those messages which related to dealing in class A drugs could be admitted as evidence.

When giving his directions in his summing-up to the jury on this matter, the judge said this:

Some of the messages were audio messages. The judge directed the jury in the following terms:

Later, the judge further directed the jury about the difficulty of relying upon voice messages and in determining whether the voice messages found on Mr Khan's own personal phone were his. The judge emphasised that the prosecution had the burden of making sure that the messages on Mr Khan's phone were to and from Mr Khan. If they were not sure of that they could place no reliance upon them. The judge referred to the difficulties of identification by voice recognition and the difficulties that a lay listener could have in correctly identifying voices and their ability to do so is subject to a number of variable factors. He asked the jury to bear in mind when they came to listen to the police recording and the recordings of the audio messages the limitations he had described and approach the evidence with great care.

The judge also dealt with the delay in providing the raw detail in the appropriate format of the phone messages to the defence. He set out the chronology of the requests and when the material was finally provided. He explained that by the time they were provided it was too late for Waseem Khan's solicitor to instruct an expert who would be able to provide a report.

We turn then to the grounds of appeal. Ground 1 of the grounds of appeal is that due to the late service of the raw data of the downloaded material in an appropriate format the defence team had had no opportunity to verify that the data had been properly extracted. Mr Carse on behalf of Waseem Khan submitted that the judge was wrong to admit this evidence. It should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 because of the unfairness and the prejudice to Waseem Khan.

Grounds 2 and 3 are that the judge was wrong to direct the jury to compare the audio messages with the police interview recording as the recording of the police interview was of such low quality and that the defence was prevented by late service of the audio messages for instructing an expert in auditory analysis to compare the recordings to see if they established that the voice was Waseem Khan's. In ground 4, Mr Carse submits that the judge erred in finding that the messages in any event demonstrated a propensity to deal in class A drugs.

The issue for this court is whether the conviction is unsafe. Whatever the position in relation to the text messages, we are satisfied that the conviction for conspiracy to supply class A drugs is not unsafe. The central issue in this case concerned the four tumblr phones used at different periods. There is no doubt that those phones were the means of communication between Akram who ran the conspiracy and a middleman, and between the middleman and the customers. The central issue was whether the four tumbler phones were used by Waseem Khan. The judge properly directed the jury on the evidence relating to the phones: that is the pattern of usage and the fact that SIM cards for two of the phones had been in a handset in a drawer in a desk at Waseem Khan's office where Waseem Khan was arrested. The jury must have been sure that the tumblr phones were used by Waseem Khan or they would not have convicted him. As the judge said to the jury, they should focus their attention on the evidence of this conspiracy, not the messages relating to the other conspiracy. If they felt it appropriate to do so they could treat the messages as some additional support for the prosecution. In any event, we do not consider that the judge erred in deciding to admit the evidence of the text messages. The starting point is that the text messages were found on Waseem Khan's phone, that is, on a phone that he admitted was his own phone. It is regrettable that the prosecution did not provide the raw data at an earlier stage in the format requested. This was a case where the request for data should have been dealt with by the prosecution earlier and if appropriate an application made for an order which would unequivocally have resulted in the provision of the information sought in the format needed at an earlier stage, thereby enabling the defence to carry out the tests they wished to carry out. Where disclosure of this kind of material is sought the preferable course of action is for the defence to serve on the prosecution a properly focused request, giving details of, amongst other things, the precise format in which material is sought and outlining the basis for that request. This will enable the prosecution, and if necessary the court, to understand with clarity what is required and why it is required. That would help ensure that there was no mistake or misunderstanding and would help ensure that any delay in the provision of disclosing material is minimised. If there is a risk of delay the defence can make an application to the court so that the matter can be listed for a hearing and appropriate directions given. If these steps are not taken, there is a real risk in other cases that such evidence might have to be excluded in order to avoid unfairness in those other cases. The importance of providing data following legitimate requests for that data and the importance of case management has been emphasised by this Court in R v Boardman [2015] 1 Cr.App.R 33.

Nevertheless, in this particular case the position was this. The messages were found on Waseem Khan's own phone. The prosecution were entitled to invite the jury to infer that the messages were therefore ones sent or received by Waseem Khan, the owner of that phone. Waseem Khan could have given evidence if he had wished to do so that even though the messages were found on his phone they were not in fact his messages. A defence expert could have given evidence explaining how the system operated and the circumstances in which a third party could have interfered with the system so that messages which were on a person's phone were not in some way actually his messages. In any event, the judge was entitled in principle on the facts of this case to decide to admit the text messages.

So far as the issue of bad character is concerned, the judge was entitled to find that the messages could establish a propensity to conspire to deal in class A drugs and so to make it more likely that Waseem Khan had used the tumbler phones as part of the conspiracy in this case. He was further entitled to conclude that admitting this evidence would not be so unfair that the evidence should not be admitted. In his summing-up the judge properly directed the jury as to the use to which they could put the evidence of bad character.

Finally, so far as comparison of the voice messages with the police interview recording is concerned, the position is this. The prosecution were inviting the jury to infer that the audio messages were Waseem Khan's as the messages were found on his phone. In addition, the judge directed that they could compare the audio messages with the recording of the police interview. The judge was satisfied that the quality of the recording was sufficient for that purpose. That approach was consistent with the decision of this court in R v Flynn [2008] 2 Cr.App.R 20. The judge did give an adequate direction about the care that needed to be taken with voice identification.

For all of those reasons we would dismiss grounds 1, 2, 3 and 4 of the appeal. Ground 5 is no longer pursued. Ground 6 alleges a misdirection or a failure properly to direct the jury in a number of respects. We have considered each of the alleged misdirections or failure to direct the jury carefully and we have considered carefully the transcript of the judge's summing-up. We are satisfied that the judge did not misdirect and did not fail properly to direct the jury.

For those reasons we are satisfied that the conviction of Waseem Khan is safe and we would dismiss this appeal against conviction.

In relation to sentence, the sentencing judge noted that Ansar Akram had received a sentence of 15 years' imprisonment following his guilty plea and his brother Ajmal Akram had received a sentence of 14 years. The judge took that into account as a benchmark. The judge described in detail the role played by Waseem Khan. He was a leading player in the conspiracy, acting as the broker or middleman between Ansar Akram and his regional customers, including in particular those in Milton Keynes, Luton, Aylesbury and Leicester. The operation was sophisticated. He considered that Waseem Khan performed a leading role in quantities that would have taken the case above Category 1 in the definitive guidelines issued by the Sentencing Council. The judge decided however to place the sentence within Category 1. For the substantive offence the guidelines indicate a starting point of 14 years with a range of 12 to 16 years' custody. The judge regarded Waseem Khan's role to be secondary to Ansar Akram but above that of his brother. He imposed a sentence of 15 years' custody.

In his written submissions, Mr Carse sought to renew the application for leave on three grounds, namely that the judge was wrong to place Waseem Khan in a role above that of Ajmal Akram; secondly, that the judge did not take into account the particular transactions in which Waseem Khan was involved; and thirdly, the judge should have recognised that Waseem Khan was involved to a lesser extent.

We do not consider that those grounds are arguable. The judge who had conducted the trial and heard the evidence was well-placed to assess the significance of the role played by Waseem Khan. He was entitled to describe him as performing a leading role in the conspiracy. He was entitled to place him at a level above the brother. He set out fully the extent of Waseem Khan's involvement and his sentence reflected the role that he found Waseem Khan performed in the conspiracy. We would therefore refuse leave to appeal against sentence.

We turn next to Taswir Mohammed's application. He seeks leave out of time to renew his application for leave to appeal against conviction. This application is based on the judge's decision to reject a submission that there was no case for Taswir Mohammed to answer.

Dealing first with the judge's ruling, as he noted this was a count of conspiracy to supply class A drugs. The conspiracy was proven. The prosecution had to prove that Taswir Mohammed had entered into that conspiracy intending that it be carried out. In that regard the judge analysed evidence of telephone contacts between Taswir Mohammed and the tumblr phone ending in the numbers 4735. That was the phone said to be used by the middleman who liaised between customers and Ansar Akram. Dealing with 23 July, for example, that phone was used to contact Ansar Akram on that day. There was a 20 minute call starting at 12.15 and, shortly after that ended, a call from the same number to Taswir Mohammed. There were further calls between Taswir Mohammed and that number and that number and Ansar Akram. On 29 July there were further telephone calls using those numbers and there was surveillance evidence of one of the convicted couriers first meeting Ansar Akram, then going to Milton Keynes where he stored and packed cocaine, then travelling to Aylesbury where he is seen meeting Taswir Mohammed. The judge concluded that there was evidence from which the jury could conclude that Taswir Mohammed had entered into a conspiracy. Further, if they concluded that, they could conclude from the wider evidence and the nature of the conspiracy that it was a conspiracy to supply a class A drug. In essence Mr Newton submits that the judge erred in rejecting Taswir Mohammed's submission that there was no case to answer applying the decision in Galbraith. Mr Newton relies on the detailed submissions drafted by Mr Smith in this case as to the many points where he submits that the judge erred. Mr Newton submitted that there was a number of strands that the prosecution relied on which were not sufficient to show a case to answer in relation to conspiracy and in particular conspiracy involving class A drugs. Whilst it was said that Taswir Mohammed was a customer, there was no evidence to connect Taswir Mohammed with the supply of drugs at any stage. Whilst there was evidence that Taswir Mohammed had on one occasion met a convicted courier at or near property with which Taswir Mohammed was connected and that the person had gone into that house, there was nothing taken in or out of the house, as one can see from the surveillance video, which is in contrast to the evidence of the way in which the conspiracy was carried out. In particular there was nothing to show that any conspiracy related to class A drugs.

Refusing leave to appeal, the single judge said this:

We agree. As we do not consider that the appeal is arguable we would refuse leave to appeal and in those circumstances there is no purpose served in granting an extension of time to renew the application for leave. We refuse both applications.

In relation to Mohammed Jahangeer, the judge had, during the course of the prosecution evidence, admitted evidence of bad character, namely the fact that Mohammed Jahangeer had a previous conviction for conspiracy to supply class A drugs, in that case heroin.

At the end of the prosecution case, Mohammed Jahangeer submitted that there was no case to answer. The judge rejected that submission. First, there was surveillance evidence that on 30 July a car was parked outside an address in Sheffield which was his parents' home. That car had been driven by one of the convicted couriers. Secondly, on 2 October, Ansar Akram travelled to Sheffield and returned to Hemel Hempstead where he was arrested. The police found carrier bags containing approximately £54,000, equivalent to about two kilos of cocaine. The money was in one carrier bag which was inside a second carrier bag. Mohammed Jahangeer's fingerprints were on the outside of each of those bags. The judge considered that there was evidence upon which the jury could find that Mohammed Jahangeer had joined this conspiracy.

After that ruling counsel for Mohammed Jahangeer applied to discharge the jury on the basis that the evidence was now so weak against Mohammed Jahangeer that the previous conviction was being used to bolster a weak case. The judge did not accede to the submission that the jury should be discharged. He did not consider that the case against Mohammed Jahangeer was weak and he did not consider that the admission of the evidence of the previous conviction was being used to bolster a weak case.

Mr Worsley took us through the difficulties with the prosecution evidence, in particular in relation to the surveillance evidence. The convicted courier had parked in a car park which was close to Mohammed Jahangeer's parents' home but was also close to a business, a fish and chip shop, run by a different person who was investigated and prosecuted for drug dealing. The person who approached the car was a man of a different ethnicity from Mr Jahangeer.

In his written and oral submissions Mr Worsley submitted that the judge was wrong to refuse to discharge the jury and that it was unfair to allow them to proceed with the case on the basis of having been told about Mohammed Jahangeer's previous conviction. He submitted that the evidence against Mohammed Jahangeer properly analysed was minimal apart from the previous conviction. Therefore the judge erred in refusing to discharge the jury and he submitted the consequence was that the jury were left with minimum evidence propped up by the previous conviction and that rendered the convictions unsafe.

The fact is that the evidence relating to Mohammed Jahangeer included, critically, the fact that his fingerprints were on the two bags in which money (over £54,000) was contained. Those bags had been handed to Akram, the mastermind of the drugs conspiracy, in Sheffield and then taken by him to his home in Hemel Hempstead. In those circumstances the previous conviction was relevant when considering the evidence and the criminality to which that money related. The judge was entitled, indeed we would say correct, not to discharge the jury but to leave the matters to the jury.

For that reason, we do not consider that Mohammed Jahangeer's appeal is arguable and we would refuse leave to appeal. In those circumstances there is no purpose served in granting an extension of time to renew the application for leave. We refuse both applications.

For those reasons, we dismiss Waseem Khan's appeal against conviction and we refuse leave to appeal against sentence. We refuse an extension of time and we refuse leave to appeal against conviction in the cases of Taswir Mohammed and Mohammed Jahangeer.