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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pouladian-Kari v R  EWCA Crim 158 (22 February 2013)
Cite as:  EWCA Crim 158
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ON APPEAL FROM THE CENTRAL CRIMINAL COURT
MR. RECORDER LEWIS QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE WYN WILLIAMS
MR JUSTICE GLOBE
| RAMIN POULADIAN-KARI
|- and -
Mr Andrew Marshall for the Respondent
Hearing date: Thursday 24th January 2013
Crown Copyright ©
Mr Justice Globe:
i) The first relates to the Recorder's refusal to rule as a matter of law that the October letters were incapable of amounting to the relevant notification.
ii) The second relates to alleged inappropriate and prejudicial comments by prosecution counsel in his final speech.
iii) The third relates to the Recorder's refusal to discharge the jury after a juror sent a note to the Recorder asking for guidance as to whether he should remain on the jury.
Statute and Regulations
(1) If any goods are-
a. exported or shipped as stores; or
b. brought to any place in the United Kingdom for the purpose of being exported or shipped as stores,
and the exportation or shipment is or would be contrary to any prohibition or restriction for the time being in force with respect to those goods under or by virtue of any enactment, the goods shall be liable to forfeiture and the exporter or intending exporter of the goods and any agent of his concerned in the exportation or shipment or intended exportation or shipment shall each be liable on summary conviction to a penalty of three times the value of the goods or [level 3 on the standard scale], whichever is the greater.
(2) Any person knowingly concerned in the exportation or shipment as stores, or in the attempted exportation or shipment as stores, of any goods with intent to evade any such prohibition or restriction as is mentioned in subsection (1) above shall be guilty of an offence under this subsection and may be detained.
"1. "Dual-use items" shall mean items, including software and technology, which can be used for both civil and military purposes and shall include all goods that can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices."
"1. An authorisation shall be required for the export of the dual-use items listed in Annex 1."
"2. Pursuant to Article 4 or Article 8, an authorisation may also be required for the export to all or certain destinations of certain dual-use items not listed in Annex 1."
Annex 1 implements internationally agreed dual-use controls and is a 240 page list of "dual-use items" for which authorisation is required for export by Article 3.1. Each item is particularised in generic form. The goods listed in the invoices in this case are not on that list.
"1. An authorisation shall be required for the export of dual-use items not listed in Annex 1 if the exporter has been informed by the competent authorities of the Member State in which he is established that the items in question are or may be intended, in their entirety or in part, for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological, or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons."
"2. An authorisation shall be required for the export of dual-use items not listed in Annex 1 if the purchasing country or country of destination is subject to an arms embargo ..and if the exporter has been informed by the authorities referred to in paragraph 1 that the items in question are or may be intended, in their entirety or in part, for a military end-use .. "
"3. An authorisation shall also be required for the export of dual-use items not listed in Annex 1 if the exporter has been informed by the authorities referred to in paragraph 1 that the items in question are or may be intended, in their entirety or in part, for use as parts or components of military items listed in the national military list that have been exported from the territory of that Member State without authorisation or in violation of an authorisation prescribed by national legislation of that Member State."
"4. If an exporter is aware that dual-use items which he proposes to export, not listed in Annex 1, are intended, in their entirety or in part, for any of the uses referred to in paragraphs 1, 2 and 3, he must notify the authorities referred to in paragraph 1, which will decide whether or not it is expedient to make the export concerned subject to authorisation."
"5. A Member State may adopt or maintain national legislation imposing an authorisation requirement on the export of dual-use items not listed in Annex 1 if the exporter has grounds for suspecting that those items are or may be intended, in their entirety or in part, for any of the uses referred to in paragraph 1."
"6. A Member State which imposes an authorisation requirement, in application of paragraphs 1 to 5, on the export of a dual-use item not listed in Annex 1, shall, where appropriate, inform the other Member States and the Commission. The other Member States shall give all due consideration to this information and shall inform their customs administration and other relevant national authorities."
"7. The provisions of Article 13(1), (2) and (5) to (7) shall apply to cases concerning dual-use items not listed in Annex 1."
"1. The competent authorities of the Member States, acting in accordance with this Regulation, may refuse to grant an export authorisation and may annul, suspend, modify or revoke an export authorisation which they have already granted. Where they refuse, annul, suspend, substantially limit or revoke an export authorisation or when they have determined that the intended export is not to be authorised, they shall notify the competent authorities of the other Member States and the Commission thereof and share the relevant information with them. "
"Thank you for your export licence application of 9th July 2009 I write to inform you that, under the Weapons of Mass Destruction end-use control, an export licence is required for this particular export. This is because there are grounds for believing that the export is or maybe intended, wholly or in part, to be used in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons. Further details on this control can be found on our website.
This assessment has been made taking into account the information given in your application.
We will continue to process your application. However, if there is a clear risk that the goods would be used in connection with activities relating to the proliferation of weapons of mass destruction or missiles capable of delivering such weapons then the application is likely to be refused. We shall inform you of the outcome of your application in due course."
"Having carefully considered your application, an export licence has been refused for the goods listed in the attached schedule. You may appeal against this decision, but you must do so in writing within 28 calendar days of the date of this refusal letter. In doing so you must provide argument or information that was not available to us at the time of refusal and which could materially affect the decision to refuse. Appeal letters should be addressed to ..If your goods have been refused under one of the Consolidated EU and National Arms Export Licensing Criteria a full copy of the criteria can be found at www.berr.gov.uk/.............."
"Unacceptable risk of diversion to a Weapons of Mass Destruction (WMD) programme of concern."
" ..I am writing to inform you under the Weapons of Mass Destruction (WMD) end-use control referred to in the enclosed Note on Current Strategic Export Control Legislation, an export licence is required for this particular export. This is because there are grounds for believing that the export is or may be intended, wholly or in part, to be used in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or the development, production, maintenance or storage of missiles capable of delivering such weapons. Further details on the operation of the WMD End-User Control that you may find helpful can be found at http://www.berr.gov.uk/...............If you decide to apply for a licence for the items referred to in this letter, you should note that receipt of this letter constitutes "being informed" and you are required to answer "yes" in response to this question in the export licence application. If there is a clear risk that the goods would be used in connection with activities to the proliferation of weapons of mass destruction or missiles capable of delivering such weapons then the application is likely to be refused .."
"Weapons of Mass Destruction (WMD): Provision is made in Article 4 of "the Regulation" and Articles 6, 7 and 8 of "the Main Order" to prohibit in certain circumstances the export and transit, without a licence, of dual-use items not listed in Annex 1 of "the Regulation" to a final destination other than an EU Member State and goods other than dual-use items to any destination if the exporter:
i. has been informed by a competent authority of the Member State where he is established that they are or may be intended, in their entirety or in part, to be used in connection with chemical, biological or nuclear weapons or other nuclear explosive devices, or missiles capable of delivering such weapons; or
First Ground of Appeal
"If you have previously had your goods rated by us as "NLR" under the WMD end-use control, please note that this rating only applies for that specific export, and to that specific end-user, and only at the time of the application. A more detailed description of the mechanics of processing end-use ratings enquiries and licence applications is included at Annex B."
"If in a future case for the same or similar goods to the same end-user the exporter does not apply for a rating, but applies directly for an export licence (as he may) and, if advisors continue to take the view that there are no WMD concerns, then the end-use control will not be invoked and the goods will be assessed as being NLR (because they are not on the Control List and the exporter has not been informed). Thus, almost identical applications can result in different ratings (NLR/LR-End licence approved), though the substantive outcomes are the same (export can proceed). This is a feature of the way the law works rather than any inconsistency on the part of ECO."
"In that case the House of Lords held that the word 'insulting' in section 7 of the Race Relations Act 1965 must be given its ordinary meaning and is not a question of law. Conduct which affronts other people and evidences a disrespect for their rights so that it is likely to cause their resentment and give rise to protest from them is not necessarily insulting behaviour within the meaning of the section. It can be noted from that and from the judgment of Lord Reid that what the House was concerned with was the meaning of the single word 'insulting' and not the construction of a phrase or phrases such as are found in the provisions of the Code. We can well understand how the judge came to observe that he did not consider ruling, as he did, that he was being in any way inconsistent with that decision."
Second ground of appeal inappropriate and prejudicial comments by the prosecution
Third ground of appeal wrong decision to dismiss the application to discharge the juror or jury
The reason for this note is that I am afraid my professional endeavours may have an effect in my view of this case.
In my current role as "Europe, Middle East and Africa Head of Structured Trade Finance" at " ", I am confronted more often than not with the supervision of similar transactions to the one covered in this process.
Through the prosecution explanation provided during the past day and a half, there are several details that will entail automatic rejection of the transaction in compliance grounds at my institution.
I am aware it is my duty to judge the case based on the information provided during the court proceedings. Saying that, I found it difficult to forget about specific details of the case that at least in my professional environment are definite red signals.
My second worry is that I may drive the discussions and conclusions of my fellow jury members in my own conclusions right or wrong.
If his Lordship considers that this is of no effect to the fairness of the process for the defendant, I am more than happy to continue engaged in the case as a member of the jury, though it is my belief that the above information should be disclosed in favour of a fair process.
Signed (name of juror)"