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The disturbing case of Roger Khan – and the cost of cheap justice

How a dyslexic man with no legal knowledge ended up defending himself on a charge of attempted murder

21 November 2015

9:00 AM

21 November 2015

9:00 AM

The defendant, Roger Khan, was on trial for a vicious attack that left a man’s skull shattered and his brain exposed to the elements, but he had no lawyer representing him in court. He was dyslexic and had no legal knowledge, but the judge had told him that, if he fired the legal-aid lawyers he no longer trusted, he would have to defend himself. In fact, the only legal advice he was getting came from the prosecution. Throughout the four-week trial, a junior Crown barrister went down to the cells each morning to advise him on how to conduct his defence — although naturally enough, the prosecution’s aim was to get him convicted and sent to prison.

Even more strangely, some of those in court had been acquainted with each other long before the trial began. For example, one of the jurors knew the victim, the Newton Abbot restaurateur Nasim Ahmed, because she worked for his GP. (The juror was discharged at the end of the trial, but by then had been mixing with her peers for weeks.) She also knew other witnesses including Ahmed’s estranged business partner, Faruk Ali, who has a criminal record for violence and bigamy: according to one witness at the trial, in the weeks before the attack Ali had been threatening to ‘put a hit’ on Ahmed, although this is denied by Ali. Yet this trial did not take place in some backward dictatorship, but in England — before Judge Graham Cottle at Exeter Crown Court in July and August 2011. It ended when Khan, now 62, was convicted with his co-defendant, Faruk Ali’s brother Abul. Khan was sentenced to 30 years — an exceptionally harsh term for attempted murder. He remains in Whitemoor prison in Cambridgeshire.

There is no disputing the savagery of the crime. Ahmed and Ali owned two Indian restaurants, one in Teignmouth, the other in Newton Abbot. A little before midnight on 27 October 2010, Ahmed returned home from work. Two men emerged from the shadows and set upon him. The night’s takings, soaked in his blood, were left untouched.

This month, Khan’s case is being considered by the Criminal Cases Review Commission, the statutory body that investigates miscarriages of justice and has the power to order an appeal. (He tried to appeal two years ago but, once again, had no lawyers. A few days before the hearing, the London solicitor James Saunders agreed to act pro bono. Saunders had almost no time to prepare: the court turned Khan down.)

Acting for Khan now is Emily Bolton, the founder of a new legal charity, the Centre for Criminal Appeals. She previously founded and for four years ran Innocence Project New Orleans, which has freed no fewer than 26 innocent prisoners from the jails of America’s Deep South. ‘I’m stunned by the circumstances of Roger’s conviction,’ she says. ‘British lawyers used to come to volunteer on death-row cases in Louisiana and tell me, “This sort of injustice could never happen in the British system.” They were wrong.’

Cases like Khan’s may well become more common, for its ultimate cause was a lack of funds for his defence. The reason why the judge ordered him to defend himself is that he had complained in pre-trial hearings about his solicitors, claiming they were not doing enough to prove his innocence. The first time he did this, the judge allowed him to switch to a different firm. But the problem persisted. Specifically, Khan said, they would not take the time to obtain or examine the hundreds of hours of CCTV footage shot in Newton Abbot on the night of the attack. Somewhere there, he insisted, were the images that would prove his alibi — that while he had been in Newton Abbot, he had merely gone to the pub, and then, having missed the last train home to London, slept rough in a local park.

He wanted the court to appoint new lawyers who would get hold of the footage. But the judge refused, saying he could either stay with the lawyers he had or represent himself. ‘I had no faith in them,’ Khan told me in the bleak Whitemoor visiting room. ‘I felt I had no choice but to do the job myself.’


As cuts to criminal legal aid have deepened, defence lawyers’ resources have been constrained. ‘Twenty years ago, in the brief I’d get for a serious case, I’d be sent a thick dossier,’ says a leading criminal QC. ‘It would contain numerous witness interviews done by defence solicitors, and all kinds of other goodies — the fruits of hundreds of hours of work. Nowadays, I’ll get asked to defend a murder on the basis of an email with just the prosecution witness statements attached.’

As for Khan, he was eventually sent a package of 89 DVDs in his remand cell at Exeter prison a few weeks before the trial. Here it was at last: the CCTV footage. ‘The only place I could view them was in the prison educational department,’ he told me. ‘Unfortunately I was only allowed there for one or two hours a day. Some of the disks were password protected, so I couldn’t view them at all. Others seemed to have bits missing.’

Recent analysis of the DVDs by Bolton and her colleagues has found two sets of images of men near the area where the attack took place at relevant times, carrying what might be weapons. But they are muddy and indistinct. And these were only the municipal cameras — the disks in the pub cameras, which might have conclusively established Khan’s innocence, had long been overwritten. There is little chance of finding a clear image of him now.

Other evidence that might have proved Khan’s innocence is only now being properly investigated. There was no trace of his DNA on the metal pole used to smash Ahmed’s skull, but there was DNA from someone else who has never been identified. The same goes for a jacket worn by one of the attackers, stained with the victim’s blood.

Khan is not a poster boy — he is not, to adapt a phrase used by criminologists, an ‘ideal victim’ of a miscarriage of justice. He was convicted in 1987 for armed robbery, although he protested his innocence of this crime, too, and the investigative journalist Paul Foot was preparing an article on the case at the time of his death. But if someone was trying to ‘set him up’, Khan’s previous convictions made him more vulnerable, more plausible as a suspect, even though at the time of his arrest he had been straight for 15 years, working as a handyman and settled with a long-term partner.

Khan had never met Ahmed, nor his business partner Faruk. But his co-defendant Abul Ali, to whom he was related by marriage, lived near him in east London, and had asked him to share the driving on a trip to Devon. Unknown to Khan, Abul and his brother Faruk had accused Ahmed of sexually abusing another family member. According to witnesses at the trial, they were trying to extort thousands of pounds from him and force him to take a polygraph test.

Abul supported Khan’s alibi, saying that after they reached Newton Abbot, he gave him the money for his train fare home, and Khan got out of the car. He said that afterwards two white men got in. He gave them £200: their role, apparently, was to ‘persuade’ Ahmed to take the polygraph.

It would have been a challenging case for a skilled QC. Small wonder Khan struggled. At one point he exclaimed: ‘I am not really getting a fair trial, am I your honour? The odds seem to be packing up against me. One minute, one thing happens. The next minute, another thing happens. I have no idea what is happening there. Then something else happens. I am supposed to sit here, take it, and everything is fine with everyone else, but I am the one going, the lamb that is going to the slaughter.’

On the days he gave his own evidence, he was on hunger strike, and was faint from the lack of food. The judge observed his poor condition, but said: ‘I have already expressed my serious anxiety about this declining state of health, but I am not going to let this trial be held to ransom. We will get to the end of this case, one way or another.’

At Whitemoor, Khan described the meetings in the courtroom cells each day. ‘Every morning it was either the police or one of the prosecuting barristers who came to see me. They seemed to want to know what I was going ask the witnesses, and who I was going to call in my defence.’ Sometimes, he claimed, they persuaded him not to challenge their own witnesses’ veracity — warning that if he did, the jury would be told about his own previous convictions.

It has taken three years for Khan to reach the front of the long queue at the Criminal Cases Review Commission: with applications running at 1,500 a year, it has a gigantic backlog. If the commission does refer his case to the Court of Appeal, many more months will pass before it is heard.

‘The human cost of trying to do justice on the cheap is innocent people losing years of their lives in prison,’ Bolton says. ‘In this Magna Carta anniversary year, we need to recognise that this is the modern meaning of an overmighty state.’

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  • WFB56

    Maybe it would help if more lawyers would work for £100 an hour instead of demanding £450 plus?

    • Emily Bolton

      While high rates for lawyers do exist in some spheres of legal representation, that was not the issue in Mr Khan’s case. The work that was needed at trial was by an investigation of the case by solicitors, who were being paid Legal Aid rates.

      The rate for legal aid case preparation work by a solicitor for Mr Khan’s application to the Criminal Cases Review Commission is now £38.69 per hour. This only covers work that the Legal Aid Agency can be convinced to pay for – which is about half of the work that needs to be done to prove the case to the satisfaction of the Commission and the Court of Appeal, in our estimation.

      From this figure the solicitor is also expected to provide all overhead costs, including compliance, insurance, IT, office equipment and space, paralegal assistance, phones, etc. It is not viable for law firms to do too much work at this rate of pay, or they go out of business.

      The differential between what Legal Aid will pay for and the work needed to demonstrate that a miscarriage of justice has occurred is why we have set up the Centre for Criminal Appeals, (www.criminalappeals.org.uk) to promote safe convictions, smart sentencing and open justice by taking appeal cases that show what is going wrong in our system and how to fix it.

      If this case concerns you, please consider supporting the Centre with a donation, so that we can help more people like Roger get back in front of the Court of Appeal in their quest for justice.

    • Emily Bolton

      While high rates for lawyers do exist in some spheres of legal representation, that was not the issue in Mr Khan’s case. The work that was needed at trial was by an investigation of the case by solicitors, who were being paid Legal Aid rates.

      The rate for legal aid case preparation work by a solicitor working on an application to the Criminal Cases Review Commission is now £41 per hour. This only covers work that the Legal Aid Agency can be convinced to pay for – which is about half of the work that needs to be done to prove the case to the satisfaction of the Commission and the Court of Appeal.

      From this figure the solicitor is also expected to provide all overhead costs, including compliance, insurance, IT, office equipment and space, paralegal assistance, phones, etc. It is not viable for law firms to do too much work at this rate of pay, or they go out of business.

      The differential between what Legal Aid will pay for and the work needed to demonstrate that a miscarriage of justice has occurred is why we have set up the Centre for Criminal Appeals, (www.criminalappeals.org.uk) to promote safe convictions, smart sentencing and open justice by taking appeal cases that show what is going wrong in our system and how to fix it.

      If this case concerns you, please consider supporting the Centre with a donation, so that we can help more people like Roger get back in front of the Court of Appeal in their quest for justice.

  • T Gould

    How can we honestly say we have a working criminal justice system when a defendant is forced to examine his own CCTV evidence and verify his own alibi because nobody else in the legal profession will?

  • Malcolm Knott

    I am sure the government would like to bring all defence work ‘in house’ with salaried lawyers shadowing the CPS. But for the moment all they can do is reduce legal aid to the level at which a criminal defence lawyer can no longer cover his outgoings.

    However, there is no doubt that some defendants play the system. Sacking your lawyers and insisting you want a new legal team, then sacking the second team and insisting you want a third team (all at the public expense) is not always done in good faith.

    • smoke me a kipper

      So all must pay the price for a few

  • kuffir

    The UK sounds more Kafkaesque by the day.

    • smoke me a kipper

      Cutting resources available to administer justice, policing and rule of law

      • kuffir

        Well we are 1.5 trillion in debt, remember… Thanks to socialism…

        • smoke me a kipper

          Socialism, that mythical beast? The western world has been managed by free market believers and their puppet governments especially in Britain with the likes of Blair and Thatcher. The public debt is largely a result of bailing out banks and paying for the resultant economic crisis. Nothing to do with socialism which has never been the form of government in the UK.

          Further, you do realise that debt is money? Check your bank note, it has a promise to pay the bearer. It’a an IOU. There can be no money without debt. If the Government reduces it’s debt it risks reducing the money supply and forcing an economic recession. Of course a reduction in Government debt can be compensated by an increase in private sector debt, and that is exactly the Government’s policy as evidenced by rock bottom interest rates, help to buy, student loans, elderly care etc. When much more moderate attempts at similar policies have been tried since WW2 they have always resulted in a recession a few years later. The other aspect of placing individuals in debt is that it transfers wealth from individuals to institutions such as banks, thus exacerbating the wealth divide and further endangering social cohesion

          • kuffir

            Bailing out the the banks was a socialist act. If banks were allowed to fail they would be more responsible about what debt they took on in the first place.

          • smoke me a kipper

            Bailing out the Banks was an act to save capitalism. If the banks had failed, the whole capitalist system could have fallen perhaps to be replaced by real socialism, and not the watered down Keynesian variety favoured by Liberals. No, bailing out the banks was an act of self preservation by the free market believers

          • kuffir

            Erm you mean the free market believers like Gordon Brown?

            Erm you mean the real socialism of Lenin and Stalin? When has socialism ever succeeded, anywhere, pray tell?

          • smoke me a kipper

            Yes Gordon Brown was one of the believers

            No, not like Lenin or Stalin

          • smoke me a kipper

            I’m not an advocate of socialism. But neither am I of free market liberalism. Both suck. Both rely on almost religious belief in particular economic beliefs, ignoring evidence from the real world that does not fit with their prejudices. Both dismiss pragmatic solutions.

  • Gebhard Von Blucher

    In a criminal trial the aim of the Crown is to present the evidence, not to “get a conviction”.

  • sob515

    attention ALLWAYS focused on the offender
    for every pound spent on the offender 3 pence is spent on the victim

    • Mc

      When you understand why a legal system exists and what constitutes a just legal system, please rejoin the conversation.

    • Emily Bolton

      The victim in this case suffered horrendous injuries. He and his family will be forever scarred by what happened that night.

      But the justice system has done them a profound disservice if one of the people in prison for the crime did not commit it. It would mean that a real perpetrator was left free to commit other crimes, and the truth about who is responsible for what happened would remain buried.

      Perhaps, therefore, the Commission’s work on any case should be considered money spent on the victim as well as the person convicted of the crime.

      The truth of this case is complex, and that complexity is what the Commission’s investigation should be able get to the bottom of. It is hoped that anyone who can help with the investigation would get in touch with the Commission to share what they know.

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