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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Latif [1996] UKHL 16 (18 January 1996)
URL: http://www.bailii.org/uk/cases/UKHL/1996/16.html
Cite as: [1996] UKHL 16, [1996] 2 Cr App R 92, [1996] WLR 104, [1996] Crim LR 92, [1996] 1 All ER 353, [1996] 2 Cr App Rep 92, [1996] 1 WLR 104

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Parliamentary Archives,
    HL/PO/JU/18/256


    Regina v. Latif (Appellant)

    (On Appeal from the Court of Appeal

    (Criminal Division))

    Regina v. Shahzad (Appellant)

    (On Appeal from the Court of Appeal

    (Criminal Division))
    (Conjoined Appeals)


    JUDGMENT

    Die Jovis 18° Januarii 1996

    Upon Report from the Appellate Committee to whom was
    referred the Cause Regina against Latif and Regina against
    Shahzad, That the Committee had heard Counsel as well on Tuesday
    the 24th as on Wednesday the 25th day of October last upon the
    Petitions and Appeals of Khalid Latif, currently detained at Her
    Majesty's Prison Longlartin, and Mohammed Khalid Shahzad,
    currently detained at Her Majesty's Prison Swaleside, praying
    that the matter of the Orders set forth in the Schedules thereto,
    namely Orders of Her Majesty's Court of Appeal (Criminal
    Division) of the 10th day of March 1994, might be reviewed
    before
    Her Majesty the Queen in Her Court of Parliament and that
    the said Orders might be reversed, varied or altered or that the
    Petitioners might have such other relief in the premises as to
    Her Majesty the Queen in Her Court of Parliament might seem meet;
    as upon the case of Her Majesty's Customs and Excise lodged in
    answer to the said Appeals; and due consideration had this day
    of what was offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Orders of Her Majesty's Court of Appeal
    (Criminal Division) of the 10th day of March 1994 complained of
    in the said Appeals be, and the same are hereby, Affirmed and
    that the said Petitions and Appeals be, and the same are hereby,
    dismissed this House.



    Cler: Parliamentor

    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE


    REGINA

    v.

    LATIF

    (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL
    (CRIMINAL DIVISION))

    REGINA

    v.

    SHAHZAD
    (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL
    (CRIMINAL DIVISION))

    (CONJOINED APPEALS)

    ON 18TH JANUARY 1996

    Lord Keith of Kinkel
    Lord Jauncey of Tullichettle
    Lord Mustill
    Lord Steyn
    Lord Hoffmann


    LORD KEITH OF KINKEL

    My Lords,

    For the reasons given in the speech to be delivered by my noble and
    learned friend Lord Steyn. which I have read in draft and with which I agree.
    I would dismiss these appeals.

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend, Lord Steyn. For the reasons which he gives I too
    would dismiss these appeals

    - 1 -

    LORD MUSTILL

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend. Lord Steyn. For the reasons which he gives I would
    dismiss these appeals

    LORD STEYN

    My Lords,

    During February and March 1991. and in the Crown Court at
    Southwark. the two appellants stood trial on two charges. Count 1 charged
    the appellants with the offence of being knowingly concerned in the fraudulent
    evasion of the prohibition on importation of a controlled drug, contrary to
    section 170(2) of the Customs and Excise Management Act 1979. The
    particulars of the offence asserted that the drug was about 20 kilograms of
    diamorphine. and that the appellants committed the offence between
    6 February and 20 May 1990 in London and elsewhere in England and Wales.
    Count 2. which was based on the same events, charged the appellants with the
    offence of attempting to be knowingly concerned in dealing with goods subject
    to a prohibition on importation with intent to evade such prohibition, contrary
    to section 1(1) of the Criminal Attempts Act 1981. After a lengthy trial the
    jury convicted both appellants on count 1. The judge sentenced Latif and
    Shahzad to terms of imprisonment of 16 and 20 years respectively. The judge
    discharged the jury from returning a verdict on count 2.

    With the leave of the single judge the appellants appealed against their
    convictions on the ground of three rulings made by the judge during the
    course of the trial. First, the judge considered a submission that an informer
    and customs officers by subterfuge incited Shahzad to commit the offence and
    then lured Shahzad into the jurisdiction. Counsel for the appellants submitted
    that in those circumstances it was an abuse of process to institute criminal
    proceedings against the appellants and that the proceedings should be stayed.
    Secondly, and relying on essentially the same assertions of fact, counsel for
    the appellants invited the judge to exercise his discretion to exclude the central
    core of prosecution evidence under section 78 of the Police and Criminal
    Evidence Act 1984. Thirdly, counsel for the appellants submitted at the end
    of the prosecution case that on the prosecution evidence the appellants were
    not guilty of the offence charged under count 1, which was by then the only
    count pursued by the prosecution. The judge ruled against the appellants on
    all three submissions. On appeal to the Court of Appeal counsel for the
    appellants challenged each of the judge's rulings. The Court of Appeal
    rejected the three grounds of appeal and dismissed the appeals of both
    appellants.

    - 2 -

    The Court of Appeal refused leave to appeal to your Lordships' House
    but certified that certain questions of law of public importance arose. Those
    questions covered the first and third issues but not the second. The Appeal
    Committee granted leave to appeal. On the hearing of the appeal counsel for
    the appellants challenged the three rulings of the judge, and the conclusions
    of the Court of Appeal on all three matters.

    The Undeniable Facts

    Both appellants gave evidence. In short they testified that they were
    under the impression that they were dealing with an intended importation of
    gold. The jury rejected their explanations. Given the verdict of the jury, I
    need only give a narrative of the essentials of the prosecution case. In 1990
    Honi, a shopkeeper in Lahore, Pakistan, was a paid informer employed by the
    United States Drugs Enforcement Agency. He knew local suppliers of heroin.
    On 6 February 1990 he met two men who wanted to import heroin into the
    United Kingdom. Honi reported this to Mr. Bragg, the British Drugs Liaison
    Officer in Rawalpindi. Mr. Bragg encouraged Honi to foster the connection
    with the two men. Honi acted under the instructions of Mr. Bragg. Honi
    suggested to the two men that he knew an airline pilot who could be used as
    a courier. That was untrue. The two men then introduced the appellant
    Shahzad to Honi. Shahzad made it clear to Honi that he. Shahzad, was ready
    and
    willing to export heroin when the occasion presented itself. At first
    Shahzad proposed to Honi that he could export heroin from Pakistan to
    Holland. Honi rejected this idea. All three men then agreed to supply Honi
    with heroin for exportation to the United Kingdom. That was the historical
    background to the subsequent and critical dealings between Honi and Shahzad.

    A few days later Shahzad alone approached Honi. He proposed an
    export of 20 kilograms of heroin on his own, cutting out the other two men.
    Honi agreed. The arrangement made between them was that Shahzad would
    deliver the heroin to Honi in Pakistan: Honi would arrange for an airline pilot
    to carry it to the United Kingdom: Honi would take delivery of the heroin in
    London: and Shahzad or somebody on his behalf would collect the heroin in
    London and arrange for its distribution in the United Kingdom. On 1 April
    1990 Shahzad delivered 20 kilograms of heroin to Honi. The street value of
    the drugs in England was £3.2 million. In accordance with his instructions
    Honi delivered the drugs to a Drugs Enforcement Agency officer. On
    10 April 1990 Mr. Bolton. a Customs and Excise officer travelled from
    England to Pakistan and collected the packages of heroin and on 13 April
    1990 he brought them to England. The officer did so on the instructions of
    his superiors. But he had no licence to do so. The Pakistani authorities had
    been kept informed of what was going on.

    In May 1990 Honi came to England. Customs and Excise officers
    arranged for Honi to stay in a hotel room under surveillance. The customs
    officers arranged for Honi's telephone calls to be intercepted. Events in his
    room were recorded by video camera. Honi did not, however, have

    - 3 -

    possession of the packages of heroin. Honi then set about trying to persuade
    Shahzad to come to England to take delivery of the drugs. On 19 May 1990
    Shahzad arrived in London. During the next two days Shahzad and Honi
    discussed the details of the delivery of the heroin and payment. On the
    afternoon of 20 May the appellant Latif joined Honi and Shahzad. Shahzad
    and Latif knew each other. Latif said words to Shahzad to the effect that
    Shahzad could tell Islamabad that he (Latif) had arrived. Shahzad and Latif
    continued
    to discuss the proposed delivery of the heroin.

    A man, who pretended to have possession of the heroin on behalf of
    Honi, then arrived. He was in fact a customs officer carrying 6 bags of
    Horlicks, got up so as to resemble the original bags of heroin. The customs
    officer delivered the bags to Shahzad who was immediately arrested. Latif
    had
    been arrested a little earlier outside the hotel room.

    The judge's rulings on abuse of process and exclusion of evidence under
    section 78.

    The principles applicable to the court's jurisdiction to stay criminal
    proceedings, and the power to exclude evidence under section 78 of PACE,
    in a case such as the present, are not the same. Nevertheless, there is a
    considerable overlap. It will therefore be convenient to consider the judge's
    findings under these two headings together.

    Before making his rulings at the start of the trial the judge would have
    studied the depositions. Honi gave evidence on the voire dire. Latif and
    Shahzad did not testify at that stage. As to the dealings between Honi and
    Shahzad in Pakistan, the judge summarized the position as follows:

    " . . . this is a case in which, as I find, all the suggestions for the
    crime came from the defendant [Shahzad]. I have to say, having heard
    the detail of how the arrangement was made in Pakistan, according to
    Mr. Honi, I think it would be a misuse of language to say there was
    an incitement by Mr. Honi of the defendant or a soliciting of the
    offence. The defendant voluntarily acted to explain his plan to
    Mr. Honi in Pakistan and Mr. Honi was merely his agent to arrange
    the carriage. Of course, Mr. Honi told him there was the opportunity
    to import these drugs to the United Kingdom by means of this
    carriage. Of course, all that was a deception, but the action all came
    from the defendant and the defendant . . . voluntarily came to the
    United Kingdom to deal in drugs here."

    On appeal to the Court of Appeal Lord Justice Staughton added to the judge's
    observations that the importation, which Shahzad had arranged through Honi,
    would not have taken place when and how it did without the assistance of
    Honi and the customs officers. The trial judge found that the Customs and
    Excise lured Shahzad to the United Kingdom by trickery and deception. He
    also found, however, that he was not brought to England by force: he came

    - 4 -

    voluntarily with a visa he applied for. There was no extradition treaty
    between the United Kingdom and Pakistan. No breach of extradition laws was
    involved. The judge said that

    "what happened here is that every step the defendant [Shahzad] wished
    to take was facilitated by the authorities in order to make sure that they
    could bring a suspected and substantial drugs dealer to book."

    The judge concluded that a stay would not be justified. The gravamen of his
    reasoning appears in the following passage:

    "Though no court will readily approve of trickery and deception being
    used, there are some circumstances in which one has to recognise,
    living
    in the real world, that this is the only way in which some people
    are ever going to be brought to trial, otherwise the courts will not get
    to try this sort of offence against people who are seriously involved in
    it." '

    Dealing with the application to exclude the evidence of Honi and others under
    section 78(1) of PACE the judge concluded:

    "To my mind, there is nothing of substance here which is unfair to the
    defendant in admitting this evidence. The incriminating remarks are
    on tape, so that proof of them does not depend on recollection of
    witnesses. He was not deprived of any rights that he had or sought to
    avail himself of. It is not evident to me that any legislation or rules
    of
    practice designed to protect people from authority, has been
    infringed. Nor is it evident to me that the defendant is in any way
    handicapped from conducting his defence, whatever that may be, to
    this charge."

    The ruling on the submission of no case to answer

    It will be convenient to consider the judge's ruling on the submission
    that the appellants had no case to answer in respect of the first count after I
    have considered the issues on abuse of process and section 78 (1) of PACE.

    The abuse of process issue

    Both in the Court of Appeal and in your Lordships' House the
    argument concentrated virtually exclusively on the position of Shahzad.
    Despite the fact that Latif was separately represented, I will concentrate on the
    position of Shahzad and turn to Latif at the end of my speech.

    At first instance and in the Court of Appeal counsel for Shahzad made
    much of the undoubted fact that customs officers by deception arranged for
    Honi to lure Shahzad to this country. Counsel for Shahzad drew your
    Lordships' attention to observations of Lord Griffiths in Somchai

    - 5 -

    Liangsiriprasert v. Government of United States of America and Another
    [1991] 1 A.C. 225. Lord Griffiths said (at pp. 242-243):

    "It is notoriously difficult to apprehend those at the centre of the drug
    trade: it is only their couriers who are usually caught. If the courts
    were to regard the penetration of a drug dealing organisation by the
    agents of a law enforcement agency and a plan to tempt the criminals
    into a jurisdiction from which they could be extradited as an abuse of
    process it would indeed be a red letter day for the drug barons."

    Recognizing the force of Lord Griffiths' observations, counsel for Shahzad
    realistically accepted that there was nothing oppressive about that part of the
    conduct of the customs officers.

    Instead counsel for Shahzad concentrated his argument on two other
    features of this case. First, he submitted that the customs officers encouraged
    Shahzad to commit the offence. Secondly, he argued that the customs officer,
    who brought the drugs to England, himself committed the offence of which
    Shahzad was convicted. It is necessary to examine these arguments. As to
    the first. I approach the matter on the basis that Shahzad took the initiative at
    the critical meeting between him and Honi. He was 37 years of age. He was
    not a vulnerable and unwilling person. He was an organizer in the heroin
    trade. He made clear from the start that he was ready and willing to arrange
    the export of heroin from Pakistan. But I also accept Lord Justice Staughton's
    qualification that the particular importation would not have taken place when
    and how it did without the assistance of Honi and the Customs and Excise.
    The highest that the argument for Shahzad can be put is that Honi gave him
    the opportunity to commit or to attempt to commit the crime of importing
    heroin into the United Kingdom if he was so minded. And he was so minded.
    That is not necessarily a decisive factor, but it is an important point against
    the claim of abuse of process.

    That brings me to the second matter, i.e. the question whether the
    customs officer, who brought the heroin to England, was himself guilty of
    criminal behaviour. Section 50(3) of the Customs and Excise Management
    Act 1979 reads as follows:

    "(3) If any person imports or is concerned in importing any goods
    contrary to any prohibition or restriction for the time being in force
    under or by virtue of any enactment with respect to those goods. . . . .
    and does so with intent to evade the prohibition or restriction, he shall
    be guilty of an offence under this subsection ..."

    It was common ground in argument before your Lordships that the customs
    officer had committed an offence under this statutory provision. Despite the
    requirement of "intent to evade," I incline to the view that this concession was
    rightly made. In the Court of Appeal the prosecution accepted that the

    - 6 -

    customs officer had also committed an offence under section 170(2). That
    provision reads as follows:

    "(2) . . . . if any person is, in relation to any goods, in any way
    knowingly concerned in any fraudulent evasion or attempt at evasion

    1. . . . ;

    2. of any prohibition or restriction for the time being in
      force with respect to the goods under or by virtue of
      any enactment: or

    (c) . . . .

    he shall be guilty of an offence under this section and may be
    detained."

    The Court of Appeal rejected the concession of the prosecution and held that
    the customs officer did not commit an offence under section 170(2) because
    he did not act fraudulently. On the appeal, counsel for the prosecution argued
    that section 170 should be read as if the section provides

    "if any person is ... fraudulently and knowingly concerned in any
    fraudulent evasion . . . "

    In my judgment there is no justification for adding the italicised words as an
    additional ingredient to the offence in section 170(2). Indeed, such a
    construction may cause practical difficulties in other cases. Having said that,
    I am prepared to assume, without deciding, that the customs officer was guilty
    of an offence under section 170(2).

    It is now necessary to consider the legal framework in which the issue
    of abuse of process must be considered. The starting point is that entrapment
    is not a defence under English law. That is, however, not the end of the
    matter. Given that Shahzad would probably not have committed the particular
    offence of which he was convicted, but for the conduct of Honi and customs
    officers, which included criminal conduct, how should the matter be
    approached? This poses the perennial dilemma: see W. G. Rosser.
    Entrapment:
    Have the Courts Found a Solution to this Fundamental Dilemma
    in the Criminal Justice System?,
    67 Australian Law Journal 722 (October
    1993); and Andrew L.-T. Choo, Halting Criminal Prosecutions: The Abuse
    of Process Doctrine Revisited,
    [1995] Crim. L.R. 864. If the court always
    refuses to stay such proceedings, the perception will be that the court
    condones criminal conduct and malpractice by law enforcement agencies.
    That would undermine public confidence in the criminal justice system and
    bring it into disrepute. On the other hand, if the court were always to stay
    proceedings in such cases, it would incur the reproach that it is failing to
    protect the public from serious crime. The weaknesses of both extreme

    - 7 -

    positions leaves only one principled solution. The court has a discretion: it
    has to perform a balancing exercise. If the court concludes that a fair trial is
    not possible, it will stay the proceedings. That is not what the present case
    is concerned with. It is plain that a fair trial was possible and that such a trial
    took place. In this case the issue is whether, despite the fact that a fair trial
    was possible, the judge ought to have stayed the criminal proceedings on
    broader considerations of the integrity of the criminal justice system. The law
    is settled. Weighing countervailing considerations of policy and justice, it is
    for the judge in the exercise of his discretion to decide whether there has been
    an abuse of process, which amounts to an affront to the public conscience and
    requires the criminal proceedings to be stayed: Reg. v. Horseferry Road
    Magistrates'
    Court, Ex parte Bennett
    [1994] 1 AC 42. Bennett was a case
    where a stay was appropriate because a defendant had been forcibly abducted
    and brought to this country to face trial in disregard of extradition laws. The
    speeches in Bennett conclusively establish that proceedings may be stayed in
    the exercise of the judge's discretion not only where a fair trial is impossible
    but also where it would be contrary to the public interest in the integrity of the
    criminal justice system that a trial should take place. An infinite variety of
    cases could arise. General guidance as to how the discretion should be
    exercised in particular circumstances will not be useful. But it is possible to
    say that in a case such as the present the judge must weigh in the balance the
    public interest in ensuring that those that are charged with grave crimes should
    be tried and the competing public interest in not conveying the impression that
    the court will adopt the approach that the end justifies any means.

    In my view the judge took into consideration the relevant
    considerations
    placed before him. He performed the balancing exercise. He
    was entitled to take the view that Shahzad was an organizer in the heroin
    trade, who took the initiative in proposing the importation. It is true that he
    did not deal with arguments about the criminal behaviour of the customs
    officer. That was understandable since that was not argued before him. If
    such arguments had been put before him, I am satisfied that he would still
    have come to the same conclusion. And I think he would have been right.
    The
    conduct of the customs officer was not so unworthy or shameful that it
    was an affront to the public conscience to allow the prosecution to proceed.
    Realistically, any criminal behaviour of the customs officer was venial
    compared
    to that of Shahzad.

    In these circumstances I would reject the submission that the judge
    erred in refusing to stay the proceedings.

    Section 78 (1) of PACE

    By way of alternative submission, counsel for Shahzad argued that the
    judge erred in not excluding the evidence of Honi and the customs officers
    under section 78(1) of PACE. Exclusion under section 76, which deals with
    confessions, does not arise. Section 78(1) reads as follows:

    -8-

    "In any proceedings the court may refuse to allow evidence on which
    the prosecution proposes to rely to be given if it appears to the court
    that, having regard to all the circumstances, including the
    circumstances in which the evidence was obtained, the admission of
    the evidence would have such an adverse effect on the fairness of the
    proceedings that the court ought not to admit it."

    The judge found as a fact that Shahzad was not in any way prejudiced in the
    presentation of his defence. Counsel found it impossible to challenge that
    finding. Given that conclusion counsel accepted that if his submissions on
    abuse of process failed his separate argument based on section 78(1) of PACE
    must inevitably also fail. I need say no more about this aspect of the case.

    The submission of no case to answer:

    At the end of the prosecution case counsel for Shahzad submitted that
    on count 1 there was no case to answer. The judge ruled to the contrary. He
    said that on the prosecution evidence it was a case of knowing evasion of a
    prohibition rather than attempted evasion. In the Court of Appeal and in your
    Lordships' House, counsel for Shahzad submitted that on the prosecution case.
    Shahzad had not committed an offence under section 170(2) of the Customs
    and Excise Management Act 1979. For convenience I again quote the
    relevant part of this provision. It reads as follows:

    "(2) ... if any person is, in relation to any goods, in any way
    knowingly concerned in any fraudulent evasion or attempt at
    evasion -

    1. . . .;

    2. of any prohibition or restriction for the time being in
      force with respect to the goods under or by virtue of
      any enactment: or

    (c) . . . ,

    he shall be guilty of an offence under this section and may be
    arrested."

    Section 3 of the Misuse of Drugs Act 1971 provides that, with certain
    exceptions, the importation of a controlled drug (and heroin is a controlled
    drug) is prohibited. This section creates no offence and imposes no sanction.
    The relevant offence under section 170(2) of the Customs and Management
    Act 1979 is created by a combination of section 170(2) and section 3 of the
    Misuse of Drugs Act 1971.

    - 9 -

    The ingredients of that offence are as follows:

    1. the goods in question are subject to a prohibition on importation under
      statutory provision: and

    2. a fraudulent evasion or attempted evasion of a prohibition has taken
      place in relation to those goods: and

    (c) the accused was concerned in that fraudulent evasion or attempted
    evasion: and

    (d) the accused was concerned in that fraudulent evasion or attempted
    evasion "knowingly".

    It is inherent in the concept of an evasion of a prohibition on importation that
    an importation has taken place. If no importation has taken place no evasion
    has taken place. On the other hand, if no importation has taken place, there
    may still be an attempted evasion of a prohibition.

    Given this statutory framework, counsel for Shahzad argued before the
    Court of Appeal and again before your Lordships' House, that Shahzad had
    not been concerned in the importation carried out by the customs officers.
    Counsel for Shahzad emphasized that in full knowledge of the content of the
    packages, and of the prohibition of the importation of heroin without a
    licence, the officer arranged an importation. The prosecution argued that
    despite the fact that the customs officer and Shahzad did not act in concert
    there had been an evasion in which Shahzad was concerned. In the alternative
    the prosecution submitted in the Court of Appeal that

    "... if the full offence had not been committed, then the alternative
    offence of being knowingly concerned in an attempted evasion of the
    prohibition was committed."

    That was not a reference to count 2, viz an attempt contrary to section 1(1)
    of the Criminal Attempts Act 1981. By the end of the prosecution case count
    2 had been withdrawn. The prosecution expressly stated in the Court of
    Appeal that they were referring to an attempted evasion under section 170(2).

    Giving the judgment of the court, Lord Justice Staughton observed:

    "At first sight one might have thought that there had to be some
    fraudulent person bringing the goods into this country and deceiving
    the Customs and Excise in the process. If that be right there was no
    completed offence in this case, for even without a licence Mr. Bolton
    was not fraudulent and did not deceive anybody. His superiors knew
    what he was doing. Mr. Shahzad and Mr. Latif would not be guilty
    of the complete offence, but it is arguable they would be guilty of an
    attempt.

    - 10 -

    "Such a construction of section 170 (2) is not, in our judgment,
    correct. It would not catch the man who organises an importation by
    an innocent courier. There would be no fraudulent evasion by
    anybody in such a case, and the organiser could not therefore be
    knowingly concerned in the fraudulent evasion. Mr. Bloom submitted
    that the organiser would be liable as the principal of the courier who
    acted as his agent. We do not find that suggestion of vicarious liability
    plausible.

    "In our judgment the words 'fraudulent evasion' include a good deal
    more than merely entering the United Kingdom with goods concealed
    and no intention of declaring them. They extend to any conduct which
    is directed and intended to lead to the importation of goods covertly in
    breach of a prohibition on import."

    On appeal to your Lordships' House the prosecution did not try to support this
    reasoning. It is established law that the offence charged can be committed
    through an innocent agent, e.g. an innocent but duped courier. The
    foundation of the reasoning of the Court of Appeal was therefore wrong. In
    any event, in ruling that the offence of evading the prohibition (as opposed to
    attempting to evade the prohibition) can be committed by any conduct which
    is directed or intended to lead to the importation of the goods the Court of
    Appeal went too far. It gave no effect to the fact that an evasion (as opposed
    to an attempted evasion) necessarily involves an importation. Moreover, this
    reasoning does not allow for the fact that section 170(2) in so far as it is
    directed at an attempted evasion already covers certain pre-importation acts.
    The reasoning of the Court of Appeal seems to allow little or no scope for an
    attempted evasion for which section 170(2) provides: see a note on the
    judgment of the Court of Appeal: Professor Sir John Smith. [1994] Crim.
    L.R. 751-752. For these reasons I am unable to accept the reasoning of the
    Court of Appeal.

    Counsel for the prosecution attempted to support the conviction on a
    different basis. He submitted that there was in truth a criminal evasion
    because Shahzad delivered the heroin intending that it should be imported into
    the United Kingdom; it was imported into the United Kingdom: and Shahzad
    sought to take delivery in England of the heroin. Counsel emphasized the
    continuing nature of the offence. He said it did not matter that the customs
    officers acted for their own purpose. The problem, as Sir John Smith pointed
    out in the note in the Criminal Law Review, is one of causation. The general
    principle is that the free, deliberate and informed intervention of a second
    person, who intends to exploit the situation created by the first, but is not
    acting in concert with him, is held to relieve the first actor of criminal
    responsibility: see Hart and Honore, Causation in Law, 2nd ed., 326 et seq.;
    Blackstone's Criminal Practice, 1995, 13-15. For example, if a thief had
    stolen the heroin after Shahzad delivered it to Honi, and imported it into the
    United Kingdom, the chain of causation would plainly have been broken. The
    general principle must also be applicable to the role of the customs officers

    - 11 -

    in this case. They acted in full knowledge of the content of the packages.
    They did not act in concert with Shahzad. They acted deliberately for their
    own purposes whatever those might have been. In my view consistency and
    legal principle do not permit us to create an exception to the general principle
    of causation to take care of the particular problem thrown up by this case. In
    my view the prosecution's argument elides the real problem of causation and
    provides no way of solving it.

    That is, however, not the end of the matter. There is another
    principled solution to be considered, namely the alternative argument of the
    prosecution in the Court of Appeal, viz that Shahzad was guilty of an
    attempted evasion under section 170(2). Initially, counsel for the prosecution
    did not on the hearing before your Lordships rely on this alternative argument.
    After your Lordships raised the question counsel for the prosecution did
    advance this alternative argument. On this question your Lordships heard oral
    submissions and subsequently received further written submissions.

    Shahzad delivered the heroin to Honi in Pakistan for the purpose of
    exportation to the United Kingdom and subsequently Shahzad tried to collect
    [he heroin from Honi for distribution in the United Kingdom. In these
    circumstances the guilt of Shahzad of an offence under that part of section
    170(2) which creates the offence of an attempt at the evasion of a prohibition
    is plain. Counsel for Shahzad suggested that the jury might have viewed
    Shahzad's
    conduct as mere preparatory steps falling short of an attempted
    evasion. In my view that would have been a wholly unrealistic suggestion.
    In common sense and law there was only one possible answer: Shahzad
    committed attempts at evasion in Pakistan and in England. Indeed I am
    confident that counsel would not have devalued his speech to the jury with a
    suggestion that on the prosecution case there was no attempt at evasion. For
    my part I have no doubt that this case must be approached on the basis that
    the guilt of Shahzad of an attempt at evasion under section 170(2) cannot
    seriously be disputed.

    Counsel for Shahzad also argued that if the movement of the heroin
    from Pakistan to England was not a fraudulent evasion it was impossible for
    Shahzad to be guilty of an offence of attempt at evasion. It will be recalled
    that
    I accepted that the customs officer, who brought the heroin to England,
    committed an offence under section 50(3) of the Customs and Excise
    Management Act 1979 and further that I assumed that the customs officer also
    committed an offence under section 170(2) of the same Act. In these
    circumstances the argument apparently falls away. In any event, Shahzad
    committed the attempt at evasion in Pakistan and nothing that the customs
    officer subsequently did could deprive Shahzad's conduct of its criminal
    character. And Shahzad's attempt at evasion by distribution of heroin in
    England was an offence. It was sufficient to prove that Shahzad intended to
    commit the full offence and was guilty of acts which were more than merely
    preparatory to the commission of the full offence.

    - 12 -

    Counsel for Shahzad further submitted that in the circumstances of this
    case an English court would not have had jurisdiction to try an offence of an
    attempt at evasion under section 170(2) in England. The attempted evasion
    in Pakistan, as well as the attempted evasion in England, were respectively
    directed
    at importation into the United Kingdom and associated with an
    importation into the United Kingdom. In these circumstances counsel's
    submission in regard to the attempt at evasion, which Shahzad committed in
    Pakistan, is destroyed by the decision of the House of Lords in D.P.P. v.
    Stonehouse
    [1978] A.C. 55. The English courts have jurisdiction over such
    criminal attempts even though the overt acts take place abroad. The rationale
    is
    that the effect of the criminal attempt is directed at this country. Moreover,
    as Lord Griffiths explained in the Somchai case, supra, at 250E-F, as a matter
    of policy jurisdiction over criminal attempts ought to rest with the country
    where it was intended that the full offence should take place: see also A. T.
    H. Smith, Property Offences, The Protection of Property through the Criminal
    Law,
    1994, 23. In any event, in the present case Shahzad also committed an
    attempt at evasion in England. I have no doubt that counsel's submission is
    misconceived.

    It is true, of course, that the indictment in the first count charge an
    actual evasion rather than an attempted evasion. That means that the
    prosecution charged more than was necessary. It is clear that if the
    prosecution had pinned their colours to an attempt at evasion under section
    170 (2) exactly the same evidence would have been led, and the speeches
    would have been the same. I would reject the submission of counsel that the
    defence of Shahzad might have been conducted differently if the indictment
    had charged an attempt at evasion under section 170(2). The fact is that
    Shahzad did testify. And, as the judge observed, in this case "the factual
    basis of the prosecution case against these defendants is exactly the same"
    whether the full offence or an attempt is considered. Moreover, the
    prosecution submitted in the alternative before the Court of Appeal that
    Shahzad was at least guilty of an attempt at evasion under section 170(2).
    Given that there was no prejudice to Shahzad, the Court of Appeal could have
    upheld that submission. The Court of Appeal found it unnecessary to consider
    that aspect. It is now open to your Lordships to reconsider that issue. In a
    more formalistic age counsel's complaint that that was not how the
    prosecution presented the case at first instance might have had a greater
    appeal. Nowadays, the view of a criminal trial as a sporting contest is a thing
    of the past. The concentration is on substance rather than form. Given the
    undeniable guilt of Shahzad of an attempt at evasion under section 170(2), and
    absence of any prejudice to him, there is no reason why a technical mistake
    by the prosecution should allow him to go free.

    That leaves the question of what order should be made. One possibility is that
    section 170 (2) contains two separate offences. On this supposition it would
    be permissible to substitute a verdict on the basis that Shahzad was guilty of
    an offence of an attempt at evasion under section 170(2). In my view this is
    not the correct view. In my view there is one offence under section 170(2),

    - 13 -

    which can be committed in one of two different ways, namely by evasion or
    an attempt at evasion. Shahzad has correctly been found guilty of an offence
    under section 170(2). Such misdescription as is contained in the indictment
    can be ignored.

    I would dismiss Shahzad's appeal. Given the terms of this judgment
    it is unnecessary to deal directly with the certified questions of law.

    Latif

    Counsel for Latif adopted the submissions of counsel for Shahzad. He
    further sought to argue that on the facts Latif s role was insufficient to
    constitute an offence under section 170 (2). I have already described Latif s
    role on 20 May 1990 when he and Shahzad attempted to take possession of the
    drug for distribution in the United Kingdom. In the light of these facts the
    submissions made on behalf of Latif are without substance. I would dismiss
    these submissions.

    I would dismiss the appeal of Latif against conviction.

    LORD HOFFMANN

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend, Lord Steyn. For the reasons which he has given.
    I too would dismiss these appeals

    - 14 -



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