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IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT GUILDFORD (RECORDER CAPT J BAYLISS) (T20100014) CASE NO:202402774 B2 NCN:[2026] EWCA Crim 131 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LADY JUSTICE ANDREWS
MR JUSTICE PICKEN
RECORDER OF CARDIFF
(Her Honour Judge Tracey Lloyd-Clarke)
REX
v
MANSOOR KHAN
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Computer Aided Transcript of Epiq Europe Ltd,
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_________
Non-counsel application
_________
JUDGMENT
MR JUSTICE PICKEN:
This is a renewed application for leave to appeal against conviction, together with applications to introduce fresh evidence and for a time extension amounting to 5,146 days.
On 1 June 2010, in the Crown Court at Guildford, the applicant pleaded guilty to putting a person in fear of violence by harassment, contrary to section 4(1) of the Protection from Harassment Act 1997, and was sentenced to pay a fine of £2,015 and £1,000 towards the costs of the prosecution. The court also made a restraining order for an indefinite period.
The facts are straightforward. They involve the applicant's now ex-wife, whom he married in July 2008. There were difficulties in their relationship, the complainant making allegations of physical abuse and violence by the applicant. However, the offence of harassment came in the form of verbal threats over the telephone and persistent sending of text messages which were of a threatening nature. Thus, during the relevant period (between 30 May 2009 and 30 September 2009) the complainant received 73 unwanted text messages from the applicant. These included a message from the applicant which read:
"If you cheat on me, I will kill you, I will pour acid on your face."
She also received numerous telephone calls from the applicant which were threatening and abusive in nature.
The applicant is not legally represented but his present wife, who is his legal deputy pursuant to an order made by the Court of Protection, has been given permission to pursue the present applications on his behalf.
Two grounds are sought to be raised.
The first is that the applicant lacked mental capacity at the time as he was suffering from a mental illness, yet this was not made known to the court as part of his defence because his then legal representatives failed to enquire into his mental health or to instruct a medical professional to undertake an assessment in relation to him.
The second is that the applicant was unfit to plead — a proposition which entails reliance on a psychiatric report prepared by Dr Andrew Forrester and dated 17 February 2015 in the context of certain other proceedings involving offences of a rather different nature, namely, so it appears, involvement in a conspiracy to defraud. Dr Forrester, in particular, concluded that the applicant had an underlying mental health illness dating back a number of years.
We have read all that has been stated on the applicant's behalf. We have also read the contents of the Respondent's Notice, which sets out the relevant background in some considerable detail.
The applicant has more recently been rendered incapable, both mentally and physically, hence the Court of Protection involvement in August 2022 and specifically the Court of Protection having accepted that the applicant lacks capacity, resulting in his now wife's appointment as his legal deputy.
Having read everything that we have described, we find ourselves in complete agreement with the single judge when he said this:
I do not consider that such evidence shows that the 2010 conviction was arguably unsafe or that (as is asserted) the applicant's then lawyers failed in their duties. There are two aspects (1) did the applicant lack the mental capacity to commit the offence of harassment in 2009 as charged?; (2) did he lack the capacity to plead guilty in 2010 to such [a] charge?
Harassment is of course of a very different nature to conspiracy to defraud. The applicant would have been interviewed in the presence of a solicitor. The case was then committed from the Magistrates Court. As the court log shows, there were then 4 preliminary hearings in the Crown Court before he pleaded guilty on the day of trial (1 June 2010) to a lesser offence (harassment) to that charged. He thus had appeared before the Crown Court on 5 occasions, twice being represented by an experienced solicitor advocate and three times by counsel. I cannot conceive, if there were reasons to think at the time that the applicant lacked capacity, that those would throughout have been overlooked both by the two advocates and by the court.
I also note that Dr Forrester had stated that, within the overall course of the applicant's general decline, it would not be inconsistent for there to have been periods when his condition was relatively worse and periods when it was relatively better. It is in fact to be observed that Dr Forrester has expressed no opinion that the applicant in 2009/2010 lacked capacity to commit the offence of harassment or to plead guilty.
In such circumstances, it cannot be concluded that the applicant lacked capacity to commit the offence of harassment in 2009 or lacked capacity to plead in 2010 to such offence (for which he was sentenced to a fine); and it cannot be concluded that his legal advisers failed in their duties.
It is also to be observed that in 1997 and (separately) in 1998 (that is, after the onset of his mental health issues) the applicant had pleaded guilty to, and been sentenced for, various offences of dishonesty; yet no challenge to those convictions has been made ..."
For these reasons, we refuse the time extension application, which, besides relating to a very substantial period of delay, concerns the renewed application for leave to appeal against conviction which we consider to be unarguable and which we refuse. We also refuse the application to adduce fresh evidence.
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