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England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2002] EWCA Crim 2820

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Neutral Citation Number: [2002] EWCA Crim 2820
Case No: 200200289/X3


Royal Courts of Justice
London, WC2
18th November 2002

B e f o r e :

(Vice President of the Court of Appeal, Criminal Division)




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  1. THE VICE PRESIDENT: For the purpose of considering these renewed applications for the Court of Appeal Criminal Division, and the renewed application for permission to move for judicial review, the Court has constituted itself as a Court of Appeal Criminal Division and as a Divisional Court and the judgment which my Lord, Davis J, will now give reflects the deliberations of the members of this Court in both capacities.
  2. MR JUSTICE DAVIS: On 4th March 2001 the applicant, who was returning from a trip to India, travelling with his daughter, Sarah, was stopped at Manchester Airport. A suitcase belonging to him and which he said at the time he had packed himself was searched. Inside the lining, glued to the bottom of the case, was found a bag with some 3 kilograms of a substance inside it. When subsequently analysed this substance was found to contain approximately 1.5 kilograms of pure heroin. No fingerprints were found on the bag.
  3. The applicant was in due course charged with being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a Class A drug, diamorphine, that is to say heroin.
  4. On 6th December 2001 in the Crown Court at Manchester he was convicted by unanimous verdict of the jury. He was sentenced on that date to 11 years' imprisonment. He now renews his application for leave to appeal against conviction and leave to appeal against sentence, leave having been refused in each case by the Single Judge.
  5. The background facts are these. The applicant, on his evidence, worked as a manager at a car repair firm. He had planned a visit to Bombay for the period 5th to 21st February 2001 and purchased a ticket for that purpose. He advertised for someone to accompany him on the trip. One of the advertisements suggested a single mother with a child. He did not in the event, however, travel out then. Instead, he went later, and on his own, from Heathrow arriving at Bombay on Friday 9th February 2001 and leaving Bombay again for the United Kingdom on Wednesday 14th February 2001.
  6. On 24th February 2001 the applicant, a man then around 51 years of age, flew with his 20 year old daughter, Sarah, from Manchester to Goa. Each took a soft sided suitcase and hand luggage. After he arrived in Goa the applicant then, on 1st March 2001, flew from Goa to Bombay, leaving his daughter in Goa and then some two days later returned to Goa. The applicant did not buy a return ticket for that purpose; rather he bought two single tickets from separate airlines for the trip from Goa to Bombay and then back again.
  7. According to the applicant he travelled to Bombay because he wanted to do some shopping and visit some brothels. He stayed at a hotel, making contact there with a man called Rajeev for whom he had a telephone number. They went together on a tour of local brothels.
  8. On 2nd March they visited a flea market in Bombay. Rajeev went with him as a guide and interpreter. Another person accompanied them carrying clothes which the applicant had purchased during the day. Rajeev suggested that the applicant buy a case for these clothes and, according to him, he did so, paying 500 rupees (which is just under 10) to buy a case. He did not, he said, inspect the case. His clothes were put in it and others took it to a taxi and, in due course, out of the hotel in Bombay when he checked out.
  9. Very soon after his return to Goa, he and Sarah returned to the United Kingdom arriving on 4th March 2001. According to the applicant, he did not touch the suitcase (which he said has been stored at reception) until he was checking out of his hotel in Goa. He opened it and arranged the clothes already in it without at any stage emptying it. Overall, according to him, he touched the suitcase no more than five times and perhaps less.
  10. When he was stopped at Manchester airport he had, he said, no idea that the drugs were in the suitcase. He told the customs officers that he had bought the case at a flea market in Bombay and he had never put the drugs in the case.
  11. The defence case thus was that the applicant was totally ignorant of the presence of the drugs in the suitcase. The drugs, it was said, must have been there when he purchased it or, it may be, at some other time by someone else.
  12. The applicant said that he considered that he had been 'set up'. The suggestion was made at trial that the applicant had been used as a decoy to distract attention from someone else going through customs. It also had been suggested that the customs might have had an informant who might have set up the applicant in order to obtain a reward, although there was no evidential basis laid at the trial for such a suggestion.
  13. The prosecution case, on the other hand, was that the first trip to Bombay was connected with the subsequent trip to bring back drugs into the United Kingdom. It was said that it was extraordinary otherwise why the applicant would make so long a journey, the flight to Bombay being some 16 hours in each direction as well as being expensive in terms of ticket cost, for so short a period. The applicant's response to that in evidence was to the effect that he enjoyed travelling and enjoyed flying.
  14. The prosecution also said that he had advertised for a mother and child to accompany him because he wanted cover and that is why eventually, on the second trip, he went with his daughter Sarah. The prosecution case further was that the applicant's sole reason for going from Goa to Bombay, leaving Sarah behind in Goa, was to collect the drugs. The reason why he had purchased two separate single tickets from separate airlines was, it was said, with a view to concealing on the return trip to Goa from Bombay that he had a suitcase which he had not had with him on the outward trip.
  15. When interviewed after his arrest at Manchester airport the applicant was represented by a solicitor. A prepared statement was read out at the interview, in substance reflecting what his defence was ultimately at trial. Thereafter, he declined to answer questions at the interview. As to the trial at which he was, in due course, convicted that was in fact a retrial, the first trial having had to be abandoned by reason it would appear of a procedural error made by the defence. At various stages in the retrial, reference was made in cross-examination by the applicant's counsel to evidence given by prosecution witnesses at the first trial.
  16. The applicant himself gave evidence at the retrial.
  17. The applicant has prepared his lengthy grounds of appeal himself. He submits that the verdict was unsatisfactory and unsafe, and that he did not receive a fair trial. He invokes the provisions of the European Convention on Human Rights. The applicant initially raised six grounds challenging the safety of his conviction and the fairness of his trial. First, he complains that the judge misdirected the jury that it was reasonable to assume that two "holidays" (as the applicant called them) were connected and the judge should, he said, have directed the jury to ignore the Crown's claim that both trips were connected with drugs runs. This ground does not fairly reflect the summing-up. What the judge was doing was putting before the jury what the Crown said was the purpose of and connection between the two trips. The judge fairly summed-up the applicant's own explanation for the two trips and his evidence that the trips were unconnected. The judge made it clear that it was for the jury to decide what conclusions they drew. Moreover the proximity of the two trips and the circumstances in which they came about were such that the jury were entitled to conclude, if they chose, that the two trips were indeed connected. There is nothing in this ground.
  18. Nor is there any substance in subsequent elaborate further arguments raised by the applicant to the effect that evidence of a first trip was wrongly admitted as similar fact evidence. It was treated as nothing of the kind. Rather, it was, on the prosecution case, evidence directly linked to and part of the conduct leading up to the second trip, a week or so later, when, on the prosecution case, the heroin was collected. The prosecution case was not, it might be added, that the first trip was itself a drugs run.
  19. The second complaint is that the judge directed the jury in law that in the circumstances they should draw no adverse inference from the fact that the applicant had given a no comment interview: because, as the judge indicated, the substance of his defence was contained in the prepared statement read out at the interview. In itself this would seem to favour the applicant; but nevertheless the complaint is that the judge never discussed this with counsel before speeches and thus prosecuting counsel had dwelled on the failure to answer questions in interview during the course of his closing speech to the jury.
  20. We would agree that it might perhaps have been better had the judge dealt with this point before closing speeches. But the judge made it clear, at the outset of the summing-up, that the jury were obliged to follow and accept his directions in law, and he then made clear that he directed the jury in law not to draw any adverse inference from the 'no comment' interview. That being so, there was actually no need for the jury to be discharged, as the applicant now says, and, further, the conviction cannot even arguably be said to be rendered unsafe by prosecution counsel's comments; nor was there any unfairness in the overall trial procedure adopted in this regard.
  21. Thirdly, the applicant then complains that what he alleged was the "non disclosure policy" of the Customs and Excise, with regard to informants, (viz is neither to confirm nor deny the involvement of an informant) was lawful and contrary to the Human Rights Act 1998. He further says that a jury should have been told of the policy of the Customs & Excise in this regard. There is nothing in this point whatsoever. No public interest immunity application had at any stage been made by the prosecution, as prosecution counsel expressly informed defence counsel during the trial. Moreover, it would appear that the policy (so called) is expressed not to extend to matters which are properly the subject of public interest immunity applications. Thus the suggestion of the defence in this regard was nothing more than that - a suggestion. The alleged policy had no bearing on the case, since there was no evidential basis that any such policy had been applied with regard to the applicant. The point was understandably, in such circumstances, barely touched upon by defence counsel. There is nothing in this ground which has any substance in it at all. It is pointless to debate the merits or lack of merits of the alleged policy, as the applicant would wish to do, since they had no bearing on this particular trial.
  22. The fourth ground of appeal is that the judge allegedly gave a misdirection to the jury about asserted inconsistencies in the evidence given by the two customs officers who questioned the applicant at Manchester airport and searched his case, (Mr Edney and Mr Sowood), as compared to the evidence given by those two at the first trial. However, the judge had rightly told the jury not to speculate about the first trial, and also, rightly, had told the jury to bear in mind, in assessing the reliability of those witnesses, the answers given by them at the first trial, in so far as such answers had emerged in the course of cross-examination at the second trial, as showing allegedly inconsistencies. There is nothing in this particular ground.
  23. Fifthly, a further complaint is made about inaccuracies in the summing-up with regard to Mr Sowood's evidence, in particular, relating to the lining of the suitcase and possibly also an alleged inaccuracy as to one particular date, but these are trifling and without any substance at all and indicating that the conviction was arguably unsafe.
  24. Sixthly, the applicant says that individually these points render the verdict unsafe and unsatisfactory or, at all events, collectively they do. He further submits that they render the trial unfair or in breach of his Convention rights.
  25. In the judgment of this Court, the individual points made are of no substance and gain of no greater substance by being taken collectively.
  26. The applicant has also raised additional grounds of appeal. The seventh ground alleges inadequate representation by his trial counsel. The complaints are, in essence, that counsel should have raised with the judge, before speeches, the issue of whether an inference could be drawn by the jury from the no comment interview; counsel should have pressed the customs officers in evidence about whether or not there had been an informant and should also have sought a ruling and direction on the alleged nondisclosure policy concerning informants; counsel should have challenged the prosecution assertion that the two trips were connected runs; counsel should have challenged the alleged irregularities in the summing-up; and counsel should have made a submission of no case to answer.
  27. As to the last point, there plainly was a case to answer, to put it at its lowest. As to the other points they all are variations on themes already raised by the applicant which in themselves are without substance or are founded on pure speculation and no criticism can properly be made of trial counsel in any of the respects now raised.
  28. The applicant then goes on to repeat that the judge was not impartial, that the judge made factual errors in his summing-up and that the judge and both counsel concerned failed to recognise the irregularities. The short answer to all that is that there simply is no basis for the suggestion that the judge failed to be impartial. On the contrary, the summing-up was balanced and fair and properly put the defence case. Nor were there any irregularities requiring correction.
  29. Apart from one possible and trifling slip on the facts, there were no material misdirections on the facts and none are identified by the applicant. To say, as in effect he does: if there was one error there could be more, is useless. Overall, the totality of the evidence given at what was a relatively short trial was for the jury to assess. The further submission that the judge included prosecution submissions in his summing-up as if they were evidence is simply not a fair representation of the summing-up.
  30. There were, therefore, in this Court's judgment, no irregularities in the trial or summing-up as the applicant now seeks to say.
  31. In addition, the applicant has raised a detailed series of questions (initially 34 in number but since supplemented). All of these, initially at least, relate to the various grounds of appeal already advanced. Some then go on to pose questions with regard to permission to appeal to the House of Lords or query the procedures in the Criminal Appeals Office or Administrative Court Office. It is not the function of this Court to answer questions raised in this way. It is the function of this Court, as an appellate court, to consider on these applications whether arguable grounds are shown for saying that the convictions were unsafe or trial unfair. In any event, the questions so raised and the points raised within them add nothing of substance to the grounds already advanced.
  32. Considering the totality of the material deployed at great length and in great detail by the applicant, a detail which it is not appropriate further to replicate here, it is the judgment of this Court that no arguable grounds are shown for saying that the conviction was unsafe or the trial was unfair or conducted in breach of the Convention on Human Rights. The application for permission to appeal against conviction is accordingly refused.
  33. So far as sentence is concerned, the applicant was convicted of the importation of Class A drugs comprising some 1.5 kilograms of heroin assessed by purity weight. The applicant gained no discount for a plea of guilty since, as of course was his right, he contested the matter at trial. His record includes a 9 year prison sentence imposed in 1992, for among other things kidnapping and possession of a firearm with intent. The judge's sentence was, accepting that he regarded the applicant as a courier, well within the range properly open to him and is comparable to other sentences passed in such cases. Indeed, some judges might perhaps have imposed a more severe sentence. It is at all events not arguable that this sentence of 11 years' imprisonment is manifestly excessive. The renewed application for leave to appeal against sentence is therefore also refused.
  34. It should be added that the applicant has, by claim form issued on 4th March 2002, to which HM Customs & Excise is named as the defendant, sought permission to apply for judicial review, relating to what is said to be the policy of the Commissioners of Customs and Excise on public interest grounds neither to confirm or deny the existence of an informant. The Claim Form does seek a "mandatory order to disclose all information withheld at the claimant's trial and not covered by any PII application". It can be seen that this is, in substance, a reassertion of one of the points raised in the grounds of appeal against conviction as part of the argument that the conviction was unsafe and, as has already been indicated, there is no merit or substance in that point at all.
  35. In any case, given that an alternative remedy was available to the applicant and that the Court of Appeal Criminal Division was the appropriate forum for dealing with that, the application for permission to apply for judicial review was, unsurprisingly, refused by Turner J, sitting in the Administrative Court on 10th April 2002. Turner J also directed that, if that application was renewed, it was to be listed with the renewed applications seeking leave to appeal against conviction and sentence in the Court of Appeal, Criminal Division. It has been so listed before us today, and, as has already been indicated, this Court has also been constituted as a Divisional Court for that purpose. That renewed application for permission to apply for judicial review is also refused. The matter plainly, as Turner J pointed out, relates to a trial on indictment. There is no substance in the applicant's submissions to the contrary contained in a recent communications to this Court and received on 14th November 2002. Indeed, the issues so raised, in so far as they relate to and are relevant to the applicant's conviction, have been dealt with by us substantively on the application for permission to appeal against conviction. The applicant is, in short, not entitled to raise this particular point in the Administrative Court, having regard to the provisions of section 29(3) of the Supreme Court Act 1981.
  36. Likewise, the applicant's attempt to challenge (by way of Judicial Review (by a claim form which names the Criminal Appeals Office as the defendant) the decision of the Single Judge in refusing leave to appeal against conviction and sentence is also misconceived; and is refused. The proper and only route to challenge such a refusal by the Single Judge is by way of renewed application to the full Appeal court in the Criminal Division pursuant to section 31(3) of the Criminal Appeal Act 1968 and the Practice Direction issued by the Registrar of Criminal Appeals. The applicant has, as will have been gathered from the foregoing, in fact taken that very route.
  37. On previous occasions the applicant has also sought an order for his production at the hearing of these applications today and an order for the obtaining of transcripts or audiotapes of the trial. Those applications have previously been refused by this Court by direction of Rose LJ, Vice-President of Court of Appeal Criminal Division, as notified to the applicant by letter dated 11th November 2002. In addition, the applicant applied for bail pending appeal which application was refused although he has sought to renew such application.
  38. The applicant has further written to request that his various applications should not cause an adjournment of the hearing today of his applications for permission to appeal against conviction and sentence and that such other applications should be (in his words) "held in abeyance" until after the hearing today. There has been no need for any adjournment today. But the applicant should clearly understand that, in consequence of this Court's decision today, there are no further applications, as previously issued or indicated by him in this Court, or renewed before this Court or as made in the Administrative Court, now remaining to be dealt with; nor are any to be regarded as currently in abeyance. For all of them have been, by decision of this Court today, refused. In that regard it is confirmed that this Court has in addition to sitting as a constitution of the Court of Appeal Criminal Division also constituted itself as a Divisional Court, to the extent to which it may have been necessary in dealing with all the applications or claims made by the applicant.
  39. THE VICE PRESIDENT: For the avoidance of any doubt, we confirm that in relation to all the applications made by the applicant of any kind, we have sat either as the Court of Appeal Criminal Division or as a Divisional Court, as was and is appropriate.

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