R v Haseeb Majid

MR JUSTICE SOOLE: On 4 September 2024 in the Crown Court at Nottingham, the appellant, then aged 22, was convicted of the murder of Mohammed Duraab Khan on 31 January 2024 (Count 1). He was acquitted of the associated offence of having with him on the same date in a public place a bladed article, namely a knife, contrary to s. 139(1) Criminal Justice Act 1988 (Count 2).

On 19 September 2024 the appellant was sentenced to life imprisonment for the murder, with a minimum term of 26 years less 228 days served on remand, namely 25 years and 137 days.

With the leave of the single judge he appeals against the length of the minimum term. He contends that the Judge (1) made findings of fact that were not open to him on the evidence; and/or (2) made findings inconsistent with the jury verdict on Count 2; and/or (3) wrongly identified a statutory starting point of 25 years; and (4) in consequence imposed a minimum term which was manifestly excessive.

On the Count of murder, the appellant admitted stabbing Mohammed Duraab Khan to death with a long knife on the forecourt of a fuel station in Meadow Lane, Nottingham but contended that he had acted in reasonable self-defence, alternatively relied on the defence of loss of self-control so as to reduce the offence from murder to manslaughter.

On Count 2, there was no dispute that he had a large knife with him in a public place. The appellant relied on the statutory defence that he had good reason for carrying the knife. The burden was on the appellant to establish this defence on the civil standard of proof. The agreed legal directions to the defence were as follows: "Carrying a knife anticipating using it to attack another person cannot amount to a good reason – if sure it was carried for that purpose, the defence would not apply, and the D would be guilty. The general carrying of a knife over a period of time in case of attack would not amount to a good reason. Carrying a knife out of self-defence (as above) – in other words, due to fear of an imminent attack - may amount to a good reason. You decide whether the D genuinely thought he was at risk from an imminent attack; if so, how imminent, how likely and how serious did he believe it would be? Decide what the facts are, and what was in the D’s mind, then decide if in your view he has persuaded you that it is more likely than not that that amounts to a good reason."

At the outset of his sentencing remarks in respect of the minimum term to be served for the murder, the Judge made clear that he took into account the jury's verdict on Count 2 but also the fact that the jury had rejected his accounts of self-defence at the time of the killing or of loss of control.

The Judge noted that the background to the case was the appellant's relationship with Malkah Yaseen and her relationship with Duraab Khan. The Judge was satisfied on the evidence as follows. The appellant was controlling and possessive. He demonstrated an arrogant entitlement to see Malkah Yaseen and her family. He believed that he was still in a relationship with her and that she was being unfaithful to him through her association with Duraab Khan. Malkah Yaseen provided information to Duraab Khan about cars loaned out to the appellant from his place of work, so as to enable him to confront the appellant. Duraab Khan had threatened the appellant on a number of occasions by telephone and in person; and he and others had driven around looking for the appellant. He accepted that the appellant was in fear. However the Judge rejected, as invention, the appellant's account that there had been threats with a gun or that he would use a petrol bomb.

On the day in question there was no dispute that the appellant had a knife with him in his car. By their verdict the jury had accepted that it was more likely than not that he had the knife in case of attack in order to defend himself. The Judge continued: "That in itself reflects the evidence that Duraab Khan had threatened you on a number of occasions and that you were in fear of him. But on the basis that you already had the knife in your car, the verdict in my view is not determinative of whether you believed that Duraab Khan was heading to your family home on 31 January, nor is it determinative as to whether that purpose continued into this incident."

The Judge then rejected the appellant's evidence that he believed that Duraab Khan and another man were on their way to his home. The appellant did not believe that they were planning an attack on him. The Judge concluded that, when the appellant saw Duraab Khan and another man, he decided that he would attack them. He was acting as an aggressor, not out of any need to defend himself or his family. He turned round the car and drove forward to see who was with him and who else was on the garage forecourt; and then deliberately reversed out of sight. He then covered his face with a ski mask to hide his identity and armed himself with the knife which he had in his car. This had a blade of 9-12 inches. On the forecourt he approached the other man, trying to take hold of him. The appellant deliberately put him in fear of what he might do. The man escaped. He then approached Khan who responded "understandably in the circumstances" by using a steering lock from his car to strike the appellant, causing an injury to his left wrist.

The Judge continued: "I am satisfied on the evidence that what you did was what you intended to do when getting out of the car and was not a spontaneous reaction brought about by Duraab Khan's actions." Mr Khan was quickly disarmed and defenceless on the floor but the appellant persisted in the attack with the knife, stabbing him 15 times in 13 seconds. His actions were brutal and deadly.

The Judge identified the starting point for the minimum term as falling within paragraph 4(2) of Schedule 21 of the Sentencing Act 2020, and sufficiently serious, to apply a starting point of 25 years. The Judge was satisfied that, in taking the knife from the car, the appellant took the knife to the scene intending to have it available to use as a weapon and then used it in the commission of the murder.

The Judge then identified the following aggravating factors. First, an element of planning or premeditation. The Judge accepted that the appellant was not generally carrying a knife for use in an offensive way; and that he had only seen Mr Khan by chance that day. However the CCTV showed his "deliberate actions in following, observing, hiding your car, covering your face and arming yourself before leaving your own vehicle. Although not a lengthy period of planning or premeditation, this was not a spontaneous act by you and is an aggravating feature."

Secondly, making threats with the knife to the other man before turning on Mr Khan. Thirdly, that the offending had taken place in public, causing significant distress to those who witnessed the act and its aftermath. Fourthly, the appellant's previous conviction for the offence of inflicting grievous bodily harm. The offence was committed when he was aged 13. He had punched and kicked another youth causing a fractured eye socket. The smaller victim was putting up no defence at all. The injury required treatment at a hospital with the insertion of a metal plate. The disposal was a 9-month referral order. Fifthly, the significant efforts he had made to subvert the investigation by disposing of the knife, the clothes he had been wearing and his mobile telephone.

Turning to mitigating factors, the Judge did not accept that the appellant's intent was only to cause really serious harm. The sheer number of wounds and their depth show that his intention was to kill.

The Judge then took account of the following mitigating factors. First, his age of 22. However he did not regard him as immature for that age. Secondly, the limited premeditation involved in the offence. Thirdly, that he had a degree of fear of Mr Khan; and that there had been an element of provocation from the threats he had made to the appellant over the course of several weeks. Fourthly, that he had committed no further offences for 9 years and had displayed positive good character, working hard during his education and in the workplace to contribute to his family. Finally, that in October 2023 he had suffered a serious and lasting disfiguring injury from a firework accident.

Having weighed up these aggravating and mitigating factors, the Judge imposed a minimum term of 26 years less the days served on remand.

On behalf of the appellant, Mr Mark Heywood KC submits that the Judge's finding of fact that the appellant acted with aggressive intent from the time in his car that he saw Duraab Khan was inconsistent with the jury's verdict on Count 2. That Count of having a bladed article in a public place was not confined to the period when the appellant was in his car. There was no dispute that the appellant was at every stage, including on the garage forecourt, in a public place. In the light of the Judge's legal directions, the jury would not have found ‘good reason’ to be established if they had concluded that he was carrying it from the car to the forecourt with the intent of using it aggressively. They must have been satisfied that he had been carrying the knife due to fear of an imminent attack.

For the same essential reasons Mr Heywood submits that the Judge's findings of fact, that the murder involved planning or premeditation and that the appellant acted with the intent to kill, were each inconsistent with the jury's verdict on Count 2.

Mr Heywood further submits that the Judge's conclusion as to the starting point is at odds with the evidence from the jury's verdict. He contends that there was no reasonable basis on which to find that the appellant took the knife to the scene, intending to use it as a weapon. Consistently with the jury's verdict on Count 2, he had no such intent until the moment when Duraab Khan struck him with two heavy blows of his steering lock. Accordingly the starting point should have been 15 years, not 25 years. He duly acknowledged that, with a starting point of 15 years, the use of a knife was a seriously aggravating factor

On behalf of the Crown, Mr Michael Burrows KC submits that the Judge's findings of fact and the starting point are consistent with the jury's verdict. As to the starting point, the fact that the appellant got out of the car with his knife supports an intent to have it ‘available to use as a weapon’. As to an intent to kill which was formed when he got out of the car, he points in particular to the evidence that he covered his face to conceal his identity; kept his knife hidden from those present until the last moment; produced and brandished it at the other man; opened the driver's door of Duraab Khan's car (with Mr Khan in the passenger seat) but did not stop there; and, when Mr Khan got out of the car, quickly overpowered and disarmed him, took him to the ground and repeatedly stabbed him with brutal and lethal force.

We acknowledge at once the very heavy weight which must be given to a trial judge's findings of fact for the purpose of sentence. Having conducted the trial and heard all the evidence the trial judge is of course in much the best position to make those findings; and this Court must be inherently slow to intervene.

However, the position is different if any finding of fact is in conflict with the verdict of the jury. In our judgment, and with respect, the Judge's finding that the appellant was an aggressor from the moment in his car when he saw Duraab Khan cannot wholly be reconciled with the jury's verdict on Count 2. Analysis of the position is made difficult by the lack of clarity on the ambit of that Count. On the face of it, there can have been no defence to Count 2 once the murderous intent to attack Mr Khan had been formed. However those distinctions were not put before the jury. There was no dispute that the appellant was at every stage, including on the garage forecourt, in a public place.

In our judgment, and having regard to the legal directions, the jury would not have found ‘good reason’ if they had concluded that the appellant had formed his aggressive intent from the moment he first saw Mr Khan. However, we consider that the jury's verdict is consistent with the conclusion that the appellant had an aggressive intent from the time that he got out of his car with a knife.

All that said, it does not follow that the Judge was wrong to conclude that the statutory starting point fell within paragraph 4(2) of Schedule 21. In concluding that it did, the Judge did not find that the appellant had taken it to the scene intending to commit an offence, i.e. within limb (a) of the paragraph. Rather, the Judge found that the appellant had done so intending to ‘have it available for use as a weapon’, i.e. within limb (b). That finding was consistent with the jury's verdict on Count 2.

Further, we are satisfied that the appellant's act of taking the knife with him from his car and towards the car in which Duraab Khan was sitting constitutes taking a weapon to the scene within the meaning of paragraph 4(2).

We conclude that the Judge was right to take a starting point of 25 years as the minimum term. However, given the relatively short duration of the period in which the knife was taken to the scene, there would be scope for downward adjustment from that figure.

By contrast, we consider that the Judge's finding of an aggravating factor of planning or premeditation is also inconsistent with the jury's verdict on Count 2 and cannot be sustained. In our judgment, the interval between getting out of the car with the aggressive intent and the commission of the offence does not justify a finding of ‘significant planning or premeditation’ within the statutory language.

We accept that the other identified aggravating factors were present, but consider that the weight to be given to the altercation with the other man and to the previous conviction for a violent offence when aged 13 merited strictly limited weight. The Judge to an extent recognised the latter when taking account of the appellant’s good conduct over the subsequent 9 years as a mitigating factor.

Turning to the potential mitigating factors, we see no basis for interfering with the Judge's finding of an intent to kill. However, in the light of our other conclusions, this must be an intent formed at the time of the direct confrontation. All the mitigating factors were properly identified.

In the light of our conclusions on the Judge's findings of fact and the appropriate aggravating and mitigating factors, we conclude that the adjustment from the starting point resulted in a minimum term which was significantly too high. In our judgment, the mitigating factors substantially outweighed the aggravating factors and the minimum term should not have exceeded 23 years less the 228 days served on remand. This results in a minimum term of 22 years and 137 days. We reduce the term and allow the appeal to that extent.