R.

v Khan (Naseer), 2014 WL 8663516 (2014)

The Queen v Naseer Khan

No Substantial Judicial Treatment

Court
Crown Court (Leeds)

Judgment Date
8 December 2014
T2014 7499

Leeds Crown Court

2014 WL 8663516

HHJ Peter Collier QC The Recorder of Leeds

8th December 2014

Ruling on Application to Dismiss

Judgment

Peter Collier QC

1. The defendant Naseer Khan (NK) is indicted with murder. He has pleaded guilty to
manslaughter but that plea is not acceptable to the prosecution and he is to stand trial for murder.
In relation to the murder he is jointly indicted with one, Abdullah Ullah (AU).

2. The events that give rise to the allegation of murder are that on 8th November 2013 NK and
AU travelled from London to Leeds to meet the brothers Pawel Matras and Zdzislaw Matras in
relation to an agreement to purchase drugs from the Matras brothers. The prosecution case is that
there was an underlying intention to rob the Matrases of any drugs they had. Inside the Matras
home a handgun was produced and four shots were fired resulting in the death of Pawel Matras
and serious injury to Zdzislaw Matras. Immediately thereafter NK and AU fled the scene. NK
returned to London and on 10th November left the UK and travelled to Islamabad in Pakistan.
There is evidence (summarised in Mr Moulson QC's skeleton argument at paragraphs B a to
i) that NK's cousin Azhar Khan (AK) played a significant role in purchasing the ticket for that

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journey. NK eventually returned to the UK voluntarily and was arrested on his arrival at London
Heathrow.

3. The history of the proceedings in relation to this matter is that AU was sent for trial for murder
on 18.11.13. His preliminary hearing was on 09.12.13 and a trial date was fixed for 06.05.14.

4. NK was initially sent to this court on 10.02.14, after his return from Pakistan, charged with
murder. The intention of course was that NK and AU would be tried together.

5. The trial was not able to go ahead as shortly before the trial the prosecution had discovered
that there had been significant telephone traffic to third parties by NK and AU whilst they had
been on remand. The phone calls had been recorded and it was considered that the content of
these calls would assist the prosecution case and so the trial was adjourned for the material that
had been served very shortly before the trial and on the first day of the trial to be considered
by the defence.

6. The trial has been re-fixed for 13.01.15

7. On 11.06.14 NK was again sent to this court, this time charged with conspiring together
with his cousin AK to pervert the course of justice by doing acts to facilitate the removal of
NK from the UK. A preliminary hearing was held on 26.06.14. At that hearing when I asked
NK's advocate what his defence was likely to be I was told that “running away is not perverting
the course of justice”.

8. Subsequently on 24.06.14 AK was also sent to this court similarly charged with conspiracy
to pervert the course of justice; his preliminary hearing was held on 08.07.14.

9. Thereafter the prosecution sought to prefer an indictment alleging that AK and NK between
9–12 November 2013 conspired together to pervert the course of justice in that arrangements
had been made for NK to leave the UK at a time when he was being investigated by the police
for an offence.

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10. Mr Zarif Khan on behalf of NK has applied to dismiss that charge as against NK.

11. Although the original application and skeleton argument raised a number of matters, it
became clear on the hearing of that application that there was only one ground that had any
substance and that was being pursued.

12. The basis of his application is that there is no obligation on a defendant either to remain at
the scene of a crime or indeed to remain within the jurisdiction so that he can be apprehended.

13. Authority for that proposition is to be found in the case of R v Clark [2003] EWCA Crim
991 .

14. In that case a motorist was involved in a fatal road traffic accident with a cyclist. The
prosecution case was that he had been under the influence of alcohol and had driven away from
the scene knowing he had hit the cyclist and that he had alcohol in his blood. He had not reported
the accident until the next morning by when he knew he was not at risk from the breathalyser.
The prosecution argued that by acting in this manner the defendant had deliberately attempted
to conceal the commission of an offence.

15. At the conclusion of the prosecution case the defence submitted that there was no case to
answer. It was argued that some positive act was required. Simply not stopping after an accident
and driving home afterwards was not enough.

16. The judge said it was a matter for the jury who could conclude that the journey home was a
positive act, the purpose of which was to conceal or destroy evidence relevant to an investigation
into how the victim was killed and his own criminal responsibility for that death. Further that
the jury could conclude that he did act or embark upon a course of conduct of a positive nature
which had a tendency to pervert the course of public justice and was intended by the defendant
both in relation to removing the car itself and its damage from the scene and also removing
himself as the driver and removing his body containing an excessive blood alcohol level.

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17. Giving the judgement of the CACD, Tuckey LJ said at para 10

Perverting the course of justice is a common law offence which covers a

wide variety of situations as a quick look at the first part of chapter 28 of
Archbold shows. It was defined as we have set out in para. 6 in R v Vreones
1891 1 QB 360 . There is no closed list of acts which may give rise to
the offence and it would be wrong to confine it to the specific instances or
categories which have so far appeared in the reported cases. The offence
undoubtedly covers fabricating, concealing or destroying evidence with
intent to influence the outcome of criminal proceedings, which include
criminal investigations. Fabrication and destruction of evidence are likely
to involve positive acts which will obviously fall within the ambit of the
offence. Concealment is more difficult. It may involve a positive act such
as hiding a body or a weapon (as in R v Rafique (1993) QB 843 ) but will
not necessarily do so. There is authority however that some positive act is
required. That is implicit in the definition of the offence with its reference
to doing an act or embarking on a course of conduct but was decided by this
court in R v Headley (1995) Crim. L. R. 738 . In that case the appellant's
brother had been stopped by police and given his name and address as the
driver of the car. The appellant was charged with perverting the course of
justice on the basis that he had failed to respond to the summons against
him arising out of his brother's driving. The court held that the appellant
had not done any act or pursued any course of conduct that could amount
to the actus reus of the offence: inaction was not enough. But, as the late
Professor Sir John Smith's commentary on this case shows, acts of omission
can sometimes just as easily be characterised as acts of commission.

11. In R v Murray 75 Crim. App. R. 58 the appellant had tampered with his
part of a specimen of blood. The court rejected the submission that this act
was incapable of having a tendency to pervert the course of justice because
it was done in private. Lord Lane, said at p. 62:

In the view of this court there must be evidence

that the man has done enough for there to be a
risk without further action by him that injustice will
result. In other words there must be a possibility
that what he has done “without more” might lead to
injustice. It seems to us that he does not himself have
to introduce the evidence into the process of justice
… it is sufficient that what he has done “without

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more” has a tendency to produce that result. To

establish a tendency or a possibility you do not have
to prove that the tendency or the possibility in fact
materialised.

12. There is little doubt that the offence has not so far been extended to
cover facts such as those in this case. That is the collective experience of
this court and was that of the single judge (Gage J.) who granted leave to
appeal.

18. In that case the court declined to extend the law to cover the facts of Clark's conduct. Having
analysed the facts the court concluded:

21. So this analysis leads to the conclusion that the acts or course of conduct
relied on by the Crown did not sustain the offence. It follows that the
judge should have upheld the submission and we must quash the appellant's
conviction.

19. In this case the only action upon which the prosecution rely is the purchase of flight tickets
to Islamabad by AK on behalf of NK to enable NK to leave the country when he knew was
being sought in connection with an investigation into the killing of a man in Leeds. This did not
involve any interference in the investigation, any interference with any evidence, any attempt
to hide the identity of the killer or any attempt to influence any witness. There is no positive
act, which can be said to have a tendency to interfere with or pervert the course of justice.
Apprehending NK is made more difficult, but that is all.

20. I have considered the fact that this is charged as a conspiracy and whether that makes any
difference. Clearly on the basis of the evidence referred to above AK could be prosecuted for
the offence of assisting an offender.

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21. Section 4(1) of the Criminal Law Act 1967 provides that:

Where a person has committed an arrestable offence, any other person who,
knowing or believing him to be guilty of the offence or of some other
arrestable offence, does without lawful authority or reasonable excuse any
act with intent to impede his apprehension or prosecution shall be guilty
of an offence.

22. First, I note that the liability created by this section is liability on someone other than the
principal offender.

23. The intent necessary for this offence is an intent to impede the apprehension or prosecution
of the principal offender. An intent to help someone travel beyond the jurisdiction making it
necessary for the investigating and / or prosecuting authorities to have to make applications to
other jurisdictions to extradite him clearly lays the basis for a jury to conclude there was present
in the mind of AK the specific intent set out in the subsection.

24. The actus reus necessary to accompany such an intention is “any act” so the purchase of
a ticket would appear to be sufficient.

25. There would appear to be a basis in the evidence before the court for such a count to be
laid against AK.

26. I have considered whether that affords any realistic basis for indicting NK as an inciter or
aider and abettor of AK's potential liability for a s 4(1) offence. I note that in Clark it was said
that following Sookoo [2002] EWCA Crim 800 the court has sought to discourage the offence
(of perverting the course of justice) being charged in addition to a substantive offence unless
there were serious aggravating features in the attempt to pervert the course of justice. I am not
persuaded that there would be any proper purpose served by the addition of such a charge in
NK's case. His running away is an aggravating factor in relation to the homicide, which he (at

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least in part at this stage) admits and will be reflected in the sentence he will eventually serve
for that serious offence.

27. I am satisfied that charge of conspiracy to pervert the course of justice in which the only
two conspirators are said to be NK and AK and the only action is buying a ticket to enable NK
to travel to Pakistan is not an allegation that is properly founded in law.

28. I shall therefore dismiss the charge of conspiracy to pervert the course of justice against
NK. As there is no other alleged conspirator it will follow that the charge against AK will also
have to be dismissed.

Crown copyright

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