HMA v Basharat Khan 2020

Mr Khan has had his bid to appeal against his conviction refused at the High Court. The appellant argued that the judge presented a misdirection to the jury which caused him to be wrongly convicted of the offence of rape.

This alleged misdirection was in relation to the adoption of prior statements of witnesses. The appellant stood trial for rape along with a co accused at the High Court in Edinburgh. The appellant was found guilty and sentenced to six years imprisonment in July 2017. The co-accused, a friend of the appellant’s, was acquitted of the rape charge against him. The defence team for the appellant argued at Appeal that the trial judge did not direct the jury property in relation to prior statements. The appellant argued that the female complainer and another crown witness, a male who said he was in the room while the offence took place, did not adopt their prior statements and the judge should have made it clear whether statements had been adopted or not. The argument in essence was what the judge had stated was not legally correct in his charge. The appeal court did agree that what the trial judge had said in relation to adopting prior statements was incorrect and in fact his was also accepted by the crown.

However, the crown argued that what was said was actually in the appellant’s favour. Lord Turnbull concluded: “We agree with the submission that what the trial judge said to the jury was incorrect and constituted a misdirection. Issues as to the potential adoption of statements by the witnesses concerned are not, as the trial judge suggested in her charge, to be resolved by operation of law. They are matters of fact to be left for the jury to determine as part of their evaluation of the whole evidence before them.” However, he went on to say: “Insofar as the references to the statement were concerned the trial judge gave a direction, the effect of which was that the statement had been adopted. Whilst this direction as it applied to this witness and to this passage may have been unnecessary, it cannot be criticised as being unfair to the appellant.” The appeal was therefore refused.