‘Justice too long delayed is justice denied’
Martin Luther King, Letter from Birmingham Jail,1963
Somewhere in the bowels of HMP Whitemoor, Roger Khan is waiting. He has been waiting for a total of four-and-a-half years to be exoner- ated of a crime he maintains he did not commit.
In 2011, Roger was convicted of attempted murder, alongside a co-defendant, Abul Ali. The prosecution had argued that both men were responsible for a brutal attack on Abul Ali’s brother in law in Newton Abbot Devon.
In January, Roger’s appeal lawyers submitted a supplement to his application to the Criminal Cases Review Commission (CCRC), the inde- pendent public body that reviews potential miscarriages of justice. The CCRC is now eval- uating Roger’s case, and will decide whether it can proceed to the Court of Appeal. For wrongfully convicted prisoners, getting their case referred to the Court of Appeal by the CCRC is their only chance of exoneration once a first appeal has failed.
Like so many wrongfully convicted prisoners, Roger simply cannot fathom how he can still be in prison. To him it is blindingly obvious that he should not be there. Soon, he hopes the CCRC will come to the same view.
Three weeks before the police came knocking at his door in November 2010, Roger had accepted an invitation from his nephew Abul to take a ride out of London to Devon, to help with the driving in exchange for a change of scene, some spending money and a train ticket home. Both Roger and Abul have con- sistently stated that Abul simply told Roger that he, Abul, had to see someone in Devon and that he would be staying the night there, which is why Roger would need to get a train back to London
Roger and Abul both recalled that Roger was dropped off near the railway station at Newton Abbot almost two hours before the attack took place. Roger states that he stopped at a pub for a drink, missed the last train home, had another drink and slept in a summerhouse in a nearby park before spending the following day seeing the local sights and finally catching a train back to London.
It appears likely that Abul did have a very par- ticular reason for going to Devon that night, one that Roger says that he had no knowledge of. The evidence suggests that the attack on Nasim Ahmed was the culmination of an ongoing family feud fuelled by allegations of sexual abuse and counter accusations of extortion, in which Abul eventually admitted involvement. Whether Abul engaged in the beating directly, or had local thugs help do it is not yet clear.
The police arrested Roger because they had discovered fingerprints and DNA evidence that showed that Roger had been in the car with Abul on the night of the attack. Witnesses and the victim were clear that the attack was committed by two men, so the police appear to have thought that because they had two men, the case was closed.
Abul eventually stated in court that he had given money to local thugs who had been hired by the victim’s business partner and brother in law to do the beating, a man called Faruk Ali, who lived in Newton Abbot. However the jury that convicted Roger did not hear much about Faruk Ali, though they were suspicious of him, having asked to know about his alibi. In a defence case statement submitted late in the trial, Abul admitted that Faruk had met up with him in his car after Roger was dropped off. DNA testing has shown that Faruk cannot be excluded as the source of some DNA found on Abul’s jacket, which also bore DNA from the blood of the victim.
The evidence being developed for the CCRC Application is suggesting more and more strongly that Roger is not guilty of this crime.
So how did Roger get convicted? Seemingly, for two basic reasons.
First, the police investigation of the crime and its antecedents appears to have been quietly manipulated by Faruk to divert attention from his own role. Faruk appears to have stayed on the side-lines and told the police only as much as he wanted them to hear to keep himself out of the frame.
Once they found DNA evidence showing that Roger had been in the car with Abul, and that Roger had at some point worn Abul’s baseball cap (which was found at the scene at some point after the attack), the police seemed to have thought that they had enough evidence to proceed against these two men.
When Roger was arrested and interviewed by the police, he insisted on his innocence but would not tell them the full story of his trip to Devon because of his bone-deep mistrust of such authorities. Roger has subsequently explained that his DNA was on Abul’s cap as he had worn it in the car to shade his eyes on the trip to Devon.
The detectives investigating the attack in Newton Abbot appear to have taken Roger’s mistrust of the police and unwillingness to talk to them for guilt and were even more certain that they had their man.
Evidence that suggested Roger was not their man was apparently not pursued. This included several DNA components derived from blood on the sleeve of Abul’s jacket that, if it came from one person, could not have come from either the victim nor Abul nor Roger. Blood on Abul’s baseball cap, and on the metal bar used in the attack was also found to contain several DNA components that were not from the victim, but the analyst stated that they were “not suitable for meaningful comparison.”
The prosecution case was that two men carried out the attack. So given Abul’s admission to involvement, and the jury’s finding that Abul was there at the scene, DNA from a third person who could not be Roger strongly suggests that Roger was not one of the two people carrying out the attack.
Roger cannot to this day fathom how this evidence of an alternative perpetrator at the scene was not considered by the Court the first time he appealed, and thus how he can still be in prison.
The second factor leading to Roger’s convic- tion was that Roger faced a trial without a lawyer to help him present his defence. Roger was assigned a duty solicitor on arrest and that firm went on to represent him. However Roger states that his relationship with this firm broke down when he became concerned that they did not act promptly to gather CCTV footage to covering his journey from pub, to pub to park. Time was of the essence as CCTV recordings are typically overwritten. Roger says that he lost faith in their ability to defend him, and told the trial judge that he needed new lawyers. A different firm was assigned, but Roger states that this firm also failed to investigate his alibi. Roger complained again to the judge, but was told he could either have the second set of lawyers assist him or represent himself. Roger felt that he could not trust the lawyers, and so ended up represent- ing himself in court on the very serious charge of attempted murder.
Crucial prosecution paperwork that should have been handed over months before trial was delivered to Roger daily in court, where it accrued in bin-liners next to his desk, as he did not have time to read it.
Of course Roger could no longer prove his alibi as so much of the most relevant CCTV footage had by this time been overwritten. Compounding this was the problem that Roger had not been able to systematically review the 700+ hours of general CCTV town centre footage that was available, in part as he could not identify which camera he might be on as he was completely unfamiliar with Newton Abbot.
Furthermore, without an expert to help him, Roger could not adequately challenge the DNA evidence used against him, despite the fact that it could be shown that DNA compo- nents derived from the blood on the sleeve of Abul’s jacket (which Abul claimed the hired thugs had borrowed from him) generated a partial profile which, if it came from one person, could not be Roger, could not be Abul and could not be the victim.
Moreover, witness statements suggest that the crime scene was not made secure by the police, with the family and other witnesses entering it at will. Roger remains very concerned about the integrity of the crime scene, especially as the baseball cap was not immediately noted in the police records.
There is plenty of other evidence to suggest that Roger’s conviction is unsafe – indeed the Application to the Criminal Cases Review Commission runs to a hundred pages and it’s a catalogue of troubling issues.
But Roger is still waiting for justice.
Roger filed his current application with the CCRC in October 2013. It took approximately 10 months for it to be assigned a Case Review Manager, and a more than six months weeks have passed since then.
Roger believes that the DNA evidence alone should convince the CCRC to send his case to the Court of Appeal.
Behind bars, Roger grinds his teeth and tries to find patience. He cannot understand or accept how the system can be taking so long to acknowledge its many mistakes. “Look at the DNA,” he says, “just look at the DNA.”
Hopefully, some day soon, someone will do just that. As Roger says, “I don’t want sympathy, all I want is a fair hearing. I wasn’t there – so why am I here?”