Defendant who represented himself gets new case review hope

https://www.theguardian.com/law/2016/jun/10/defendant-represented-himself-case-review-roger-khan

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A dyslexic defendant who represented himself in a crown court trial – after being handed 790 hours of CCTV footage to review in prison to support his alibi – is challenging his conviction for attempted murder.

The highly complex case involving Roger Khan, who was found guilty of taking part in an attack that shattered the skull of a Newton Abbot restaurant owner, is currently being considered by the Criminal Cases Review Commission (CCRC). Khan, 62, is serving a 30-year sentence.

The victim of the attack was Nasim Ahmed, a restaurant manager who was attacked outside his home with the evening’s takings on 27 October 2010. As he approached his front door, he was assaulted by two men – one armed with a metal pole.

Ahmed was beaten about the head and his face was slashed. None of the cash was taken. A blue baseball cap was recovered from the scene.

Khan’s experience highlights the difficulties the legal system faces when dealing with defendants who do not have a lawyer to argue their case in a criminal court – a predicament that campaigners claim is becoming more common due to cuts in legal aid entitlement.

In Khan’s case, however, he was unrepresented because he had dismissed two sets of lawyers following disagreements over how it should be handled. Khan said the dispute was over the failure to obtain video evidence supporting his alibi. The judge ruled that the trial should, nonetheless, proceed.

The case has been taken up by a new legal charity, the Centre for Criminal Appeals (CCA) in London, which has submitted a second set of submissions in an attempt to persuade the CCRC to refer it to the court of appeal. The CCRC initially indicated there were insufficient new grounds for the case to be reopened but is now re-examining the evidence.

The day after the attack, Ahmed’s brother-in-law, Abdul Ali, was arrested. Khan had travelled down from London with Ali on the day of the attack.

In November that year, Khan, who is Ali’s uncle, was arrested. Both men were charged with attempted murder. Their attack was said to be connected to a family feud involving the victim and Ali.

Ali later admitted meeting two other unidentified men who had been hired to intimidate Ahmed. Both Khan and Ali were eventually convicted.

In their latest submission, the CCA points out: “Before trial, [Khan] was handed 790 hours of [municipal] CCTV footage to review to see if he could find himself on camera. He was not given a map of the town and had only an hour a day in the prison library to review the footage.

“Given these strictures, [Khan] could not raise a formal alibi defence. Instead he suggested that three figures spotted on film could have been him.” The police, it is claimed, had not studied all the municipal CCTV footage and were wrong therefore to leave the jury with the impression that they could not find Khan on it.

Additionally, more useful CCTV evidence from shops and pubs, the CCA says, was never obtained in time by the police or defence and was later recorded over.

DNA traces from the baseball cap were matched to Khan but the hat belonged to Ali. Lawyers from the CCA representing Khan told the court he wore it on the journey down from London but left it in the car. DNA testing shows that another person’s DNA was also on the cap. Khan was unable to obtain expert assistance to examine the evidence.

The trial had several other irregular features: one of the jurors was dismissed three weeks into the trial because it emerged she knew some of the participants’ family. Her presence, it is alleged, had by then significantly contaminated the jury.

Lawyers for Khan at the CCA also point to the fact eyewitness reports said two white men, whose descriptions do not match Ali or Khan, were seen running from the scene of the attack.

Emily Bolton of the CCA, who has worked on death row cases in the United States, said Khan had to carry his case papers “in garbage bags up and down to the cells” during the trial. “As in all English cases, there was no transcript,” she added. “We were eventually given the digital trial recording.” Volunteers spent hours transcribing the tapes.

Bolton said: “Complete trial transcript has been available as a matter of right in the US since 1956. British lawyers have been parachuting into death row cases in Mississippi and bewailing the injustices they see there – but such injustices are only visible when you have an actual transcript of the trial to see what was really going on.

“So how do we know similar casualties of justice are not taking place here in Britain? The Centre for Criminal Appeals, which relies on grants and donations, wants to change this ... by going the extra mile to bring a complete picture of a case to the court of appeal, not just the tip of any particular iceberg.”

In an opinion supporting the reopening of Khan’s case, Francis FitzGibbon QC, who is on the advisory group of the CCA, said that the CCRC had failed to give sufficient importance to the fact that Khan was a “vulnerable defendant”.

He said: “The nature of [Khan’s] vulnerability impeded his decision-making, so that his decision to dismiss his legal representatives was the product of his vulnerability. He was unable to participate effectively in his trial as a litigant in person.

“His remand status would have made it exceptionally difficult for anyone to engage properly with the voluminous documentary material, but it was especially onerous for him. He had limited access to the extensive CCTV material, some of which he was only able to view during the trial. His dyslexia must have made dealing with the case still more difficult.”

Khan only learnt to read at the age of 17, starting off with comic books he found in a borstal. He tried to put his criminal record, for an armed robbery he still denies, before the jury at his trial to demonstrate that he was pursued by the police on the basis of his past. At the time of his arrest he had been out of trouble for 15 years and had settled down with a partner.

In its provisional finding declining to refer the case to the court of appeal, the CCRC said: “Many of the submissions made are on the basis that [a barrister] could have made points more eloquently or more forcefully than was done by Mr Khan. However, such submissions do not constitute either new evidence or new argument.”

The CCRC will now examine the CCA’s further report before making a final decision on Roger Khan’s case.

More and more cases involving unrepresented defendants are coming before the courts because the financial threshold for eligibility for legal aid has been raised, according to Penelope Gibb, director of the charity Transform Justice.

The Ministry of Justice has denied there is a rise in the number of people representing themselves in crown court, saying there has been no increase in the number of self-represented defendants since 2010.

A spokesman for the CCRC said: “We are alert to the issues of [changes to eligibility for] legal aid but have not seen any increase in [claims of miscarriages of justice] as a result so far.”