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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 >> Mahmood & Anor, R v  EWCA Crim 2356 (17 December 2013)
Cite as:  EWCA Crim 2356,  WLR(D) 96
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ON APPEAL FROM Teesside Crown Court
His Honour Judge Crowson
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE POPPLEWELL/and
HIS HONOUR JUDGE GILBERT
|- and -
|Asad Mahmood and Majid Khan
Mr R Whittam QC (who did not appear in the court below) and Mr R Masters (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 8 November 2013
Crown Copyright ©
Lord Justice Fulford :
i) The judge erred in admitting the recordings of the telephone conversations from prison, which it is suggested were inadmissible under the Regulation of Investigatory Powers Act 2000 ("RIPA"). The core argument in this regard is that since all telephone calls from inmates in HMP Manchester (apart from to the Samaritans and to defence lawyers) were recorded as a result of a general or a blanket policy, they were inadmissible under this statutory provision.
ii) The judge should have upheld the defence submission that he had no case to answer on count 1. The count had been amended to read that the named defendants "between the 1st day of June 2011 and the 11th day of January 2012 conspired together and together with persons as yet unknown, to supply a quantity of Diamorphine, a controlled drug of Class "A" within the Teeside area". The reference to "within the Teeside area" had not formed part of the count as originally drafted. In summary, it is suggested that there was no evidence that the appellant was aware that the drugs were to be supplied to that particular location or that he was part of an agreement which was directed at that particular area.
iii) As to sentence, the 9 year prison term was manifestly excessive and that there is an unjustifiable disparity between the sentence imposed on Mahmood and Imran Bashir.
iv) The judge should have excluded the evidence of the telephone records.
v) The judge wrongly admitted the evidence of the intercepted calls and Mrs Bashir's telephone number once the prosecution had decided not to proceed against her on count 1.
vi) The prosecution failed in its duty of disclosure to a degree that deprived the appellant of a fair trial.
The Respective Cases for the Appellants
The Issues at Trial
The Grounds of Appeal Against Conviction
Asad Mahmood: Ground 1
Asad Mahmood: Ground 2 (renewed)
Majid Khan: Ground 1
Majid Khan: Ground 2 (renewed)
Majid Khan: Ground 3
Asad Mahmood: Ground 1 (the telephone calls)
1 Unlawful interception.
(1) It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of
(b) a public telecommunication system.
(2) It shall be an offence for a person
(a) intentionally and without lawful authority, and
(b) otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection,
to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.
(3) Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either
(a) an interception of that communication in the course of its transmission by means of that private system; or
(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.
(4) Where the United Kingdom is a party to an international agreement which
(a) relates to the provision of mutual assistance in connection with, or in the form of, the interception of communications,
(b) requires the issue of a warrant, order or equivalent instrument in cases in which assistance is given, and
(c) is designated for the purposes of this subsection by an order made by the Secretary of State,
it shall be the duty of the Secretary of State to secure that no request for assistance in accordance with the agreement is made on behalf of a person in the United Kingdom to the competent authorities of a country or territory outside the United Kingdom except with lawful authority.
(5) Conduct has lawful authority for the purposes of this section if, and only if
(a) it is authorised by or under section 3 or 4;
4. Power to provide for lawful interception.
(1) Conduct by any person ("the interceptor") consisting in the interception of a communication in the course of its transmission by means of a telecommunication system is authorised by this section if
(4) Conduct taking place in a prison is authorised by this section if it is conduct in exercise of any power conferred by or under any rules made under section 47 of the Prison Act 1952 [ ].
(1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed
(a) does not interfere with the convention rights of any person; or
(i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are
(c) the prevention, detection, investigation or prosecution of crime;
(d) the interests of public safety;
(e) securing or maintaining prison security or good order and discipline in prison;
(1) The Secretary of State may give directions to any governor concerning the interception in a prison of any communication by any prisoner or class of prisoners if the Secretary of State considers that the directions are
(a) necessary on grounds specified in paragraph (4) below; and
(b) proportionate to what is sought to be achieved.
(2) Subject to any directions given by the Secretary of State, the governor may make arrangements for any communication by a prisoner or class of prisoners to be intercepted in a prison by an officer or an employee of the prison authorised by the governor for the purposes of this rule (referred to in this rule as an "authorised employee") if he considers that the arrangements are -
(a) necessary on grounds specified in paragraph (4) below; and
(b) proportionate to what is sought to be achieved.
For the purposes of this rule "interception" -
in relation to a communication by means of a telecommunications system, means of any action taken in relation to the system or its operation so as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication; and the contents of a communication are to be taken to be made available to a person while being transmitted where the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently; [ ]
"3. In 1995, Home Office Ministers decided that the existing prisoner cardphone system for prisoner telephone communications did not afford victims and witnesses of crime sufficient protection from unwarranted attention by prisoners. At the same time, the technology used for cardphones was becoming obsolete, which led to the development of the prison PIN phone system. All establishments now have the PIN system (or similar) in place and governors have introduced security regimes appropriate to the security concerns of the establishment. [ ]
4. The PIN system intercepts and records all telephone calls made by prisoners, although those subject to legal professional privilege cannot be listened to routinely." (emphasis added)
"28. In the present case, adopting (a) greater intensity of review [ ], it seems clear that the objective of the Governor's decision made under the Rules is the restriction of prisoner telephonic communication with the community at large in a manner that would be calculated to encourage or promote illegal drug use in prison and communication with the outside community in areas that would foster crime in other outside circumstances. The measures adopted here are clearly and rationally connected with that objective. It cannot reasonably be gainsaid that the ability of the prison management to control telephone communication can facilitate the prevention of undesirable communications calculated to lead to the consequences of increased drug abuse in prison and criminal activity outside it."
"52. [ ] the PIN system, introduced in 2001, records all calls. Measures were in place, however to ensure that any listening which took place was justifiable and proportionate, having regard to the rules [ ]. In our judgment both the PIN system and the arrangements made for listening to the calls were [ ] a proportionate response to balancing security and privacy. There is certainly ample evidence that thought was given to both those aspects of the matter and there is certainly no evidence to the contrary with which to challenge the proportionate approach of the Secretary of state and the Prison Service.
53. We accept (the) submission that there are many legitimate reasons for listening to calls which satisfy rule 35A, as, for example, in the case of prisoners organising the trafficking of drugs in prison or planning an escape or, indeed, a false alibi. We also accept (the) submission that the rule 35A criteria are wide and that they are in the public domain and this available to prisoners and others [ ]."
"First, I see no basis for concluding that in drafting the rules, the phrase 'any prisoner' or 'class of prisoner' was intended to exclude the situation in which a Secretary of State might give directions to a Governor which applied to the entire population of that prison as a class of prisoner. If it is lawful to make such a direction for any prisoner, it must therefore be lawful to give the direction for all prisoners.
Further, since the Secretary of State has control over all prisons, the approach taken to give directions on a prison by prison basis may be seen as giving directions in relation to a class of prisoner on each occasions, that is to say the class of prison(er)s occupying Her Majesty's Prison Strangeways for example.
I see no reason to interpret 35A (1) as preventing the Secretary of State from directing that the regime should apply to the entire population of a prison. I am satisfied that the proper interpretation of the rules compatible with the convention rights and the Human Rights Act is to read Rule 34, which allows restrictions and conditions to be applied to the general population, as providing that same breadth of application when making directions under rule 35A, and that the wording in rule 35A(1) which speaks of a prisoner or class of prisoner is not intended to restrict that power but rather informs the Secretary of State that he may restrict the operation of his direction to a class, which may include the entire population of prison or to a smaller group within a prison perhaps with a qualifying conviction or alternatively to apply the rule to a named prisoner or prisoners."
"Classification of prisoners
Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.
Prisoners committed or attached for contempt of court, or for failing to do or abstain from doing anything required to be done or left undone:
shall be treated as a separate class for the purposes of this rule;
Asad Mahmood: Ground 2 (the submission of no case to answer)
"The jury would be entitled to conclude on the evidence that Asad Mahmood was willingly recruited as Imran Bashir's representative and that in that role it is inevitable that he would have sufficient knowledge of the illegal trade to appreciate that a supply of this nature was not an isolated event but part of a business. He would therefore be aware that his role was part of a wider supply chain so that in taking the role that he did he was involving himself in a wider drugs supply including with people the identity of which he may not and need not know."
i) Majid Khan (the man at the centre of the "Middlesbrough group" for the purposes of this drugs conspiracy) was in contact with Imran Bashir in prison, in circumstances that led to the proper inference from the telephone evidence that arrangements were made for heroin to be collected from Oldham and delivered to Middlesbrough on 22 July 2011. The plan was that Urfan Hussain's taxi would travel from Middlesbrough to Oldham in order for the passenger, Asif Hussain, to pick up the heroin and then return with it to Middlesbrough. The prosecution case was that Bashir arranged for Mahmood and his delegate, Karl Waterfield, to handle the supply in Oldham. The appellant is a tall man and he is Majid Khan's maternal cousin (as set out above, "Masair" means maternal cousin) and he was in contact with Majid Khan on a number of occasions during the events immediately surrounding the round trip from Middlesbrough to Oldham and back.
ii) On 21 July 2011 the intercepted telephone evidence revealed that Majid Khan was not intending to visit Bashir as expected and that "Asad" (Asad Mahmood) would be the only visitor. Indeed, later the same day the appellant visited Bashir. That evening Bashir spoke with a man who, given the sequence of events and the overall context, it was open to the jury to conclude was Majid Khan, and he was told that "my Masair will be ringing you" ("the tall one") and "he will give you something". Thereafter, Khan and the appellant's telephones were in contact with each other for in excess of 4 minutes. Given particularly what occurred thereafter, this provided clear evidence on which the jury would have been entitled to conclude that Khan and the appellant were arranging one of the supplies of heroin with this conspiracy was concerned and that the appellant would inevitably have known the destination of the supply, given it was Majid Khan with whom he was making the arrangements.
iii) On 22 July 2011 Mrs Bashir spoke with Majid Khan and was told that he had spoken with Bashir's cousin. Majid Khan was in telephone contact with Urfan Hussain and Asif Hussain as they prepared to leave for Oldham from Middlesbrough and he was in contact with Asad Mohammed immediately after they had left. There was further telephone contact between Khan and the appellant, and between the latter and Karl Waterfield. Thereafter, the passenger, Asif Hussain, contacted the appellant as the taxi approached Oldham.
iv) Urfan Hussain's taxi arrived in Oldham in the late afternoon of 22 July 2011 and was met by the appellant who was in a Ford Focus in Brewerton Road. The two vehicles then left at the same time, with the taxi following the Focus. There was then a 22-minute break in the surveillance before the taxi then was seen on the M62 returning to Middlesbrough.
v) In due course, the Urfan Hussain's taxi was intercepted on 22 July 2011 driven by Urfan Hussain as it approached Middlesbrough from the south. Asif Hussain fled, throwing away a bag that contained nearly 1 kilo of heroin.
vi) Thereafter, there was a wave of telephone calls that included contact between Majid Khan and the appellant after midnight.
Majid Khan: Ground 1 (the telephone records)
i) On 5 September 2011 Detective Superintendent Sellers signed a request (PAS4) directed as HMP Manchester for the interception, recording and retention of all calls relating to Imran Bashir between 21 July 2011 and 20 October 2011. This application was granted on 21 September 2011.
ii) On 21 December 2011 HMP Manchester approved a separate application (PAS4E) for the use of identified prison service Pin telephone intelligence for the period between 21 July 2011 and 20 October 2011.
iii) On 12 September 2011 Detective Superintendent Sellers signed a request (PAS4) directed as HMP Full Sutton for the interception, recording and retention of all calls relating to Imran Bashir between 21 July 2011 and 20 October 2011. This application was granted on 26 September 2011.
iv) On 14 December 2011 HMP Full Sutton approved a separate application (PAS4E) for the use of identified prison service Pin telephone intelligence for the period between 21 July 2011 and 22 November 2011.
Majid Khan: Ground 2 (the telephone calls and Mrs Bashir)
Majid Khan: Ground 3 (disclosure)
The Renewed Applications for leave to Appeal against Sentence
The Sentencing Remarks
The Grounds of Appeal
The Decision of the Single Judge
Your application for leave to appeal sentence was lodged 2 weeks out of time and you have provided no grounds justifying the necessary extension of time.
Further and in any event, you have no arguable grounds for appealing the sentence of 9 years. You were convicted of conspiring to supply heroin in the Teeside area. The sentencing judge presided over the trial and was very well placed to assess your role in the conspiracy and hence your level of culpability. It was his judgement that your role was a significant one, in that not only were you involved in meeting Asif Hussain and directing him to a restaurant where a transaction for 985 grams of drugs was facilitated but you were also involved through being party to the conspiracy in a wider trade of drugs.
The contention made on your behalf that there is an objectionable disparity between your sentence and that imposed on your cousin, Imran Bashir, is unsustainable. The judge reduced the sentence he would otherwise have imposed on Bashir because the sentence was one that was to be served after Bashir had completed the sentence he was serving when he joined the conspiracy charged in count 1.
It follows that the 9 years to which you were sentenced is not arguably manifestly excessive or wrong in principle.
Your application for leave to appeal sentence was lodged 2 months out of time and you have provided no grounds justifying the necessary extension of time.
Further and in any event, you have no arguable grounds for contesting the sentence of 15 years imposed on count 1. You were at the heart of a widespread conspiracy between 24 June and 19 October 2011 to supply heroin into the Teeside area sourced from Qldham and Bedford. Over this period you used at least 10 different telephone numbers and 6 difference handsets. A kilo of heroin was seized by the police on 22 July 2011 and a further kilo was seized on 27 August 2011 and, as the judge found (as he was entitled to) the implementation of the conspiracy was not limited to these significant quantities."