“The Prosecution Must Prove its Case”. What does that Actually Mean?
| Author | Tom Kark KC |
| DOI | http://doi.org/10.1177/00220183221136207 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Case Notes |
“The Prosecution Must Prove its
Case”. What does that Actually
Mean?
R v Khan [2022] EWCA Crim 1010
Keywords
Prosecution burden, proof of case, summing up alternate verdicts
On 21 July 2022 the Court of Appeal (Crim. Div.) delivered its reserved judgment in the case of Khan
which had been argued on Friday 8 July. The case revolved around the central issue of what it means
when we say that ‘the prosecution must prove its case’. Is the judge entitled or required to depart
from the prosecution case theory and leave all the possibilities allowed for on the facts, even when
not contended for (and even positively resisted) by the prosecution and defence.
The facts require a little explanation.
Muhammed Suleiman Khan (Sully Khan) was 19 years old at the time of the offence. He was an on/off
partner of J –they had been together for at least 18 months prior to the events of 21st July 2020 but it is
plain that their relationship was volatile. He exercised control over her; he had a coercive relationship
with her and he had, in the past, been violent towards her. J had very recently started seeing a young
man called Panashe Bako (Panashe).
The prosecution suggested Khan was jealous and controlling. As far as J was concerned, she and Khan
had ended their relationship (not for the first time) prior to the few days she chose to spent at the Crowne
Plaza in Birmingham with Panashe. It is clear that Khan did not share that view and was extremely pos-
sessive about her and jealous of any suggestion that J was engaged in a relationship with anybody else.
J and Panashe decided to spend the nights of the 20th and 21st July 2020 in the hotel. Eventually by
means of a series of texts to J, Khan discovered her whereabouts, and in the afternoon of 21st July went to
the hotel and confirmed which room she was in. He then called his friend B (as the prosecution suggested)
as back up. He knew that Panashe was bigger than him and according to Khan had previously threatened
to stab him.
The two men were allowed into the room and, at first, the conversation was reasonably civilized. Khan
became verbally abusive to J and when she attempted to leave and to call for help she was prevented.
Eventually Khan and B agreed to leave but by this stage either Khan or B had taken J’s telephones.
Panashe then became involved in a struggle with Khan and was beating him when, according to the pros-
ecution case, Khan beckoned to B and said –“if you gotta do it, do it”, or words to that effect. At this
point, on the prosecution case, B stepped forward and drove a knife into Panashe’s chest which
proved to be a fatal injury. The knife was then re-sheathed and dropped at the scene
The knife and sheath had the DNA of all three male participants on it. Khan when arrested had the
victim’s blood on his top and trousers. B was not arrested for several months. When first spoken to, J
told her mother that ‘Sully had killed someone’, however she almost immediately changed that to say
that it had been B but that Sully had encouraged him. In her first ABE interview she described how
Sully had looked at B who was standing nearby and uttered the words mentioned above upon which
B attacked Panashe with the knife.
Case Note
The Journal of Criminal Law
2022, Vol. 86(6) 492–495
© The Author(s) 2022
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DOI: 10.1177/00220183221136207
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