Jamil, R v [2001] EWCA Crim 1687

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
[2001] EWCA Crim 1687Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
Jamil, R v
Before
Lord Justice JudgeMr Justice HooperMrs Justice HallettDate 17 July 2001
[1]On 25 May 1989 at the Crown Court at Birmingham (HHJ Nicholl) Mohammed Ali Jamil, the appellant, was convicted by a majority of 10 to 2 of unlawful possession of a controlled drug, namely heroin, with intent to supply. At his first trial the jury had been unable to reach a verdict. On the same day he was sentenced to 7 years' imprisonment. For reasons of which we are unaware, no application for leave to appeal against conviction was made. On 9 October 1990 the Court refused an application for leave to appeal against sentence.[2]In July 1989 the West Midlands Police received a letter of complaint from the appellant, in which he made serious allegations against the officers who had given evidence at his trial. That complaint was referred to the Police Complaints Authority which supervised an inquiry. In March 1991 that Authority wrote to the appellant stating that no action was to be taken against the officers the subject of his complaint.[3]On 1 October 1997 an application was made by the appellant to the Criminal Cases Review Commission ("CCRC"). A year later Mohammed Jamil died. His widow, Elizabeth Jamil, took over the application on behalf of her deceased husband. On 1 March 2000 the CCRC referred the conviction to this Court under section 9 of the Criminal Appeal Act 1995. At the outset of the appeal and pursuant to section 44A of the Criminal Appeal Act 1968 we granted Elizabeth Jamil approval to continue the appeal.[4]The principal ground of the appeal concerns the non-disclosure of material in the possession of the police and prosecution before the start of the trial.[5]On 24 October 1987 the appellant and his wife rented a flat at 73 Foley Road, Ward End, Birmingham. On the night of 6-7 February 1988 the flat was burgled and a considerable amount of property was stolen. As a result of the break-in the appellant changed the locks to the flat but did not give his landlord, Mr Alam, a set of the new keys. About a week before the events with which this case was concerned, the appellant installed in the flat new carpet paid for by the landlord. Some of that carpet was laid in the first floor corridor leading from the stairs.[6]On Friday, 1 April 1988 at about 10.30 p.m. the appellant suffered a second burglary at his flat. The police arrived at the flat at 10.36 p.m. a few minutes after receipt of the report and told the appellant that scenes of crimes officers would come to the flat the next day. The appellant's account of the burglary when subsequently interviewed was as follows:
"... I went home, saw the front door open and saw a West Indian chap walking towards my kitchen. I went in and said "
What the hell are you doing?" The Asian bloke was looking under the settee in the middle of the room. He stopped looking, picked up the TV and said "Police .. you are under arrest". I stood to one side by the door and they walked out. I followed them outside ran to the off-licence and asked for a pen off the person who served me. He enquired why and I told him "Just give me the pen and call the police." I ran after the car it reversed down Foley Road into Morris Road and drove off before I could get the reg. no. I thought it was a silver Rover 2-3 series, a new car probably C reg. After that I went back to the off-licence and gave the details to the police over the phone. They arrived within minutes."[7]He was asked how the men had got in and he said that the police had told him that they had forced the front door lock and that he and the police officers had checked every door and window. He said there was a television and two Giros missing. The appellant gave a similar account in evidence, accepting that the door had been forced (see pages 11-12 of the summing-up).[8]Acting on information received, at 6.30 the following morning the police executed a search warrant at the home of a Mr Mohammed Rashid ("Rashid"). The police suspected Rashid of being involved in the burglary at 73 Foley Road and being concerned in the supply of drugs, for which two offences he was arrested. Hidden in a settee were 4 dealer wraps containing heroin. Subsequent analysis showed that the heroin contained "an unusually high proportion of methaqalone, which was of remarkable similarity in composition to the heroin" later to be found at the appellant's flat in two bags under the floorboards and (on the prosecution's case) in the appellant's bus pass (Grounds of Appeal, paragraph 14). The evidence was that all these drugs were likely to have come from the same source. The defence chose not to put this scientific evidence before the jury. We shall explain in due course why this decision was made.[9]During the search Rashid was told about the burglary in Foley Road and he replied that he was in the road with a friend, Dervinder Singh Gill, but that he did not go into the house. Rashid was subsequently interviewed in Urdu. He said that at 6.40 on the Friday evening he had gone to see Gill and there was present a Mr "Ejaz" and a West Indian man with him. He said that they were going to make collections for the mosque and did in fact do so. Later that evening he was a front seat passenger in a new silver coloured car which he thought belonged to Mr Ejaz. Gill was driving the car and Ejaz and the West Indian man were in the back. The car stopped in a road the name of which he (now) said he did not know. Ejaz and the West Indian got out and were away for 15-20 minutes. He was asked whether, when they returned, they were carrying anything. He replied that he had not taken any notice. He said that they had said nothing about where they had been. He said that Ejaz was not a friend of his but that he had known him for the last 5-6 months and that he lived in Leicester. He did not know the West Indian man. There were then the following questions and answers translated into and from Urdu:
"Q. Are you aware that a burglary took place at 73 Foley Road on 1 April 1988? A. No, I don't know. Q. A West Indian man and an Asian were disturbed doing burglary; they drove off after being seen in a new silver car, what do you know about it? A. I don't know anything about it. Q. A television was stolen and I believe you helped in the burglary didn't you? A. No I didn't take any part in this burglary, nor did I help in it. Q. We believe the real reason for this burglary at that house was to steal heroin which was hidden there you went to that house with the West Indian and stole the television and heroin didn't you? A. No this is not true it is false."
[10]It was put to him that:
"You together with others, went to that house last night to find the hidden heroin didn't you"
. Rashid answered no. He had no previous convictions. He denied that what the police found was heroin. He later pleaded guilty to simple possession of the four wraps before the appellant's second trial had taken place.[11]We turn back to the events of Saturday morning.[12]Within an hour of the search of Rashid's house, six officers from the West Midlands Police Drug Squad, DI Parish, DS Hopkins, DC Littler, DC Robotham, DC Young and DC Foulston, executed a search warrant at the appellant's flat. The appellant was expecting a finger-print expert and learnt then or shortly thereafter that the officers were from the Drug Squad.[13]Beneath a point where two strips of carpet abutted in the first floor corridor at the top of the stairs, the police discovered two short lengths of floor-board. In the words of the CCRC, it was the prosecution's case (not apparently disputed) that the drugs were concealed "beneath a convenient joint in the carpet". Hidden beneath the floorboards, the police found two polythene bags which contained in all some 89 grammes of powder, including some 14 ½ grammes of heroin. The street value was said to be approximately £10,000 and evidence was given that the heroin found had a higher percentage of heroin than that normally found in street heroin.[14]The powder contained an unusually high level of methaqalone. According to the evidence, methaqalone is a drug sometimes used to dilute illicit heroin, but normally only in small amounts. Methaqalone is expensive and the high concentration of methaqalone rendered "the recipe" less economic than if cheaper agents of dilution had been employed.[15]As to the carpet, it was put to the appellant in interview (page 13) that there was a slit in the carpet which allowed access to the area where the heroin was concealed. He said that he had put down the carpet about a week before, that the carpet had been bought in cut lengths and that "each one that fitted was placed where it was."[16]Having denied that he knew about the heroin under the floor boards, the appellant was taken downstairs. On the prosecution's case he was asked whether there was any more heroin in the house and he replied:
"A bit in me wallet but that's not mine either"
. When a wrap of powder was found in his bus pass wallet within his black leather coat he said, according to the prosecution, that that was not his either but that he was holding it for someone. That heroin was shown to be of the same distinctive type as the heroin contained in the two bags under the floor boards. The wrap, according to the prosecution, was made from the page of a video guide found in the dining room. The page of the video guide had been torn up to make other squares. During a later search of the property conducted by DC Robotham after returning to the property, it was the prosecution's case that traces of heroin were recovered from the dining room table, the heroin matching that found earlier. He also discovered, under the bed, a piece of burnt silver foil with traces of heroin. The bedroom had earlier been searched by DC Young and DC Foulston who had not found the burnt foil, a matter explored before the jury.[17]In interview and at trial the appellant denied all knowledge of the drugs, not only those under the floor boards but the other three items. It was, however, accepted by him that the drugs were found under the floor boards. He denied making the alleged verbal admissions and it was his case that the police officers had both fabricated the admissions and the evidence relating to the finding of the wrap in the wallet, the foil under the bed and the traces on the table.[18]It was an important part of his case that he would not have reported a burglary if there had been, to his knowledge, drugs in the flat.[19]In October 1988 the appellant's solicitor asked by letter a number of questions of the Crown Prosecution Service, which responded by letter on 7 December 1998. The solicitors asked what enquiries had been conducted in relation to the burglary at the appellant's home and what steps were taken against Rashid and "Mr Dervinder Singh Gill". The CPS's reply was that Gill had been arrested and interviewed but was refused charge. No answer was given about Rashid. The CPS were asked what steps had been taken to trace or identify Mr "Ejaz", to which there was no response. Asked on what basis Rashid was arrested on suspicion of burglary at the appellant's home, there was no response.[20]In so far as Rashid was concerned, the details of his arrest, what he said in interview and the scientific evidence linking what was found in his settee with the drugs found at the appellant's flat were all disclosed as unused material before the trial. The police had wanted the two cases to be tried together but the CPS lawyer had decided that there was insufficient nexus between the two cases. The two cases then proceeded down separate paths with those passages in the committal statements relevant only to the other defendant's case remaining legible but with a line through them. Mr Michael Garrett, who represented the respondent before this Court, made an unsuccessful application to consolidate the two indictments. That application was opposed by counsel on behalf of Rashid but not by counsel on behalf of the appellant. Thereafter Mr Garrett conducted the case against Rashid but not against the appellant. Rashid pleaded guilty and was sentenced prior to the start of the second trial. The CPS informed the appellant's solicitors of the result on 11 May 1989. There is no material to suggest that Rashid was approached by those representing the appellant.[21]The appellant's interview contained the following passage which was put before the jury and referred to by the learned Judge in his summing-up. The questions were asked by DS Hopkins. "Q. Do you know a man called Rashid? A. No I've never heard of Rashid until you mentioned it to me. Q. He is in custody here at the moment he admits being one of a number of men who went to your house last night not to steal your TV but to steal the heroin they knew to be concealed in your home. Our information is that you have been dealing in heroin. Any comment? A. No I have not been dealing in heroin I've never seen Mr Rashid or any of the other men in my house. Q. They were unsuccessful in finding the heroin because it was so well hidden I suggest they knew it was there because you have been offering it for sale. A. No I've never had heroin in my possession I've never actually seen or dealt with the stuff in my life."[22]The assertion by DS Hopkins that Rashid had admitted being one of a number of men who went to the house to steal the heroin which they knew to be concealed in the home was an inaccurate representation of what Rashid had said. It was an accurate representation of what the police strongly suspected had happened. It is submitted in Ground C of the appeal that this "misleading account" of what Rashid had said raised doubts about the integrity and credibility of his evidence and of the police evidence generally. If those advising the appellant had wished to take the point during the trial it was open to them to do so. They had the necessary material to show that it was "misleading". It appears that no such attack on the officers' credibility was made. Further the defence could have had the whole passage excluded from the copy of the interview which went to the jury. The defence, so it appears, decided not to do so.[23]During the course of their deliberations the jury asked the following question:
"The burglars seem to consider that drugs were in Mr Jamil's house. Why did he think this?"
They must have asked that question because of what was set out in the passage which we have just cited from the appellant's interview. In response

the Judge replied as follows:

"We do not know. We have not heard the burglar. All we have heard is that in the course of the interview a police officer told Mr Jamil that one of the burglars who had been arrested had said he believed that there were drugs in the house. I said to you that in the course of summing-up that is not evidence. What the burglar believed would be based on something he had been told, presumably on the basis that there are drugs in that house hidden somewhere. Mr Jamil's defence is that he had not hidden the drugs there, someone else had. What the burglars believed does not really touch on that point ... so the short answer to the question is that we do not know why the burglar thought there were drugs there, but even if we did, it would not help very much in deciding the question of guilt or innocence."
[24]In summary the defence did not challenge the "misleading" account nor did the defence have it excluded. Nor were the jury told that the heroin in the four dealer wraps found in Rashid's house were of "remarkable similarity" to the heroin found in the two bags under the floor boards and said to have been found in the bus pass.[25]If the jury had been told about the "remarkable similarity", the overwhelming probability is that the jury would have been invited by the defence to conclude that the four dealer's wraps found in Rashid's settee had been stolen by Rashid (or by the burglar) from the appellant's flat. However taking this course would have presented further difficulties for the defence. Given the forced entry, given that the appellant had found the two burglars on the ground floor and had found one of the two burglars looking under the settee, and given that the drugs under the floor boards had obviously not been discovered by the burglars, the jury would have had no difficulty in concluding that there were drugs in the appellant's flat other than those concealed there. That however would have been quite contrary to the appellant's case that he had no knowledge of any drugs in the flat and that the police had fabricated the evidence against him. That would explain the very sensible forensic decision made by the defence not to let the jury know about what had been found in Rashid's house.[26]At the trial the defence positively alleged that the drugs under the floor boards had been left in the flat by the landlord and the jury was urged to act on that suggestion. Among the difficulties which the defence faced with suggesting that the landlord was the owner of the drugs were the following: the appellant accepted that the landlord had not had any keys to the flat since the burglary of the 6/7 February, the landlord could only obtain access to his drugs by forcing an entry and the landlord had concealed the drugs in a spot where anyone working in that area (e.g. laying a carpet) could easily have found them.[27]On 4 April 1988 a police report was prepared for the benefit of the CPS by Acting Detective Inspector Hopkins who was the officer who had interviewed the appellant (according to the interview notes he was a Detective Sergeant). It seems clear that that report was available to counsel who prosecuted the appellant. The report reads as follows:
"1. At about 10 pm on Friday 1.4.88 the defendant Jamil claims he disturbed several men burgling his rented house at 73 Foley Road, Ward End. He reported the matter to police, claiming the theft of a T.V. set. 2. Information was subsequently received by Drug Sqd officers to the effect that Rashid was one of the men responsible and the burglary was in order to steal from Jamil a large quantity of heroin with which Jamil was dealing. They were disturbed by Jamil but had stolen some heroin. 3. In the early hours of Saturday 2.4.88 officers executed a search warrant at 40 Henley St, Rashid's H/A. Hidden in a settee with some other powder were several dealers wraps containing heroin. He admits being party to the burglary at Foley Road with the intention of stealing the heroin from Jamil. 4. As a result later that day a warrant was executed at 73 Foley Road. From under floorboards, which were carpeted, was recovered approx 9 oz of heroin with a street value in excess of £100,000 [later reduced to £10,000]. From his bus pass wallet was recovered a dealer's `wrap' cont. almost exactly 1 gram of heroin. 5. Jamil denies any knowledge of the heroin at all. He admits being in possession of the only set of keys to premises, he admits having laid the carpet covering the floorboards, on the landing, that concealed the heroin, just one week ago. The carpet is laid in such a manner to give access to the hiding place. He lives alone. It is significant that there are very few carpets fitted in the house, other than that covering the hiding place [this was disputed]. 6. The heroin recovered in Rashid's possession has been chemically identified as from the same `batch' as that recovered from Jamil."
[28]The contents of the Report were not, it appears, disclosed to the defence. However, this is of no significance. The material contained in the report was known to the defence. In particular the contents of paragraph 2 were known, given the circumstances of Rashid's arrest, the questions put to him then and later, the finding of the four wraps as well as the quoted passage from the appellant's interview. The last sentence of paragraph 3 contains the same "misleading" account of what Rashid had admitted and adds nothing.[29]During the course of the review, the CCRC located a police report dated 22 June 1988. That report appears not to have been disclosed to either the CPS or counsel for the prosecution. We have read the whole report and following an ex parte hearing we ordered disclosure of the only information of any possible relevance:
"About 2.00 am Saturday, 2nd April 1988, the informant obtained contact with me through my Divisional Control Room. He stated that the previous night (Friday 1.4.88) he had travelled to Birmingham and spent the evening in the company of HUSSAIN [in fact Rashid], GILL and a third man, a West Indian who he did not wish to give details of. He stated that he drove all three to Foley Road, Birmingham, where two of them entered a house intending to steal drugs from the drugs dealer who occupied the house. On their return to the car the informant states they were in possession of a portable television set. HUSSAIN told him they had not found the drugs but the informant saw him secrete a bag, which he believed to be drugs, inside his jacket. This bag he described as smaller than a bag of sugar."
[30]We shall assume that the contents of that report in some form or another ought to have been disclosed to the defence and we shall further assume that, if asked to do so, the prosecution would have formally admitted that which was implicit on the papers, namely that there was information that the burglars intended "to steal drugs from the drugs dealer who occupied the house." We shall assume further that the prosecution would have admitted that it had information that Rashid had said that he and the other burglar "had not found the drugs" and that Rashid had been seen to secrete a bag with was believed to contain drugs.[31]Assuming that disclosure of this information should have been made, "would the only reasonable and proper verdict been one of guilty" if it had been made? (See Francom and Others [2000] Crim. L.R. 1018.) To answer that question in this case, we have asked ourselves:
"Would the defence have made any use of this material if disclosed?"
. The defence knew that the prosecution's case was that the purpose of the burglary was to steal drugs. The defence chose only to make limited use of that information by allowing before the jury the extract which we have quoted from the defendant's interview. The defence knew that there was a "remarkable similarity" between the drugs found in Rashid's house and those found at the appellant's house, but chose not to use that information. We have no doubt that the prosecution would have readily made an admission if asked, that Rashid had stolen the drugs from the appellant's flat. If the defence had wanted to prove that Rashid was in possession of drugs from the appellant's house, it could easily have done so on the material then available. Understandably the defence chose not to do so. The fact (if it be so) that Rashid had told the informant that they had not "found the drugs" would only have made it even clearer than it already was that the burglars were expecting to find drugs.[32]It was submitted that the report could have led to the obtaining of further information. In some cases that may well be right. In this case the defence appear not to have followed up the sources of information which they already had in their possession. In any event it is inconceivable that any of those involved in the burglary would have helped the defence, quite the contrary. It might have been of interest to know how long the burglars were in the house. However that information was already known to the defence because Rashid had told the police that the two burglars, whom he described as Ejaz and the West Indian, had been away for 15-20 minutes.[33]It is submitted on behalf of the appellant that the defence was disadvantaged by the failure to disclose that the purpose of the burglars was to "steal from the occupier ". That deprived the defence, so it was said, from reinforcing the suggestion that as far as the appellant was concerned "the occupier" was Mr Alam, the landlord. With respect to Mr de Kauwe that begs the question; "Who was the occupier?". In any event the report did not use the word "occupier", but the words "the drugs dealer who occupied the house".[34]He further submits that the jury may not have convicted had they known that Rashid had burgled the premises and was seen leaving with a bag of powder that was believed to be drugs. He says that, in those circumstances, the jury would have been more likely to accept the possibility of someone else, other than the appellant, being involved. This overlooks the fact that the entry to the house was forced and overlooks the forensic difficulties which the defence would have faced if this line of argument had been adopted (see paragraph 25 above).[35]It is further submitted that the appellant's defence would have been reinforced had it been confirmed that within a short time of the burglary there was information that it was drugs related. Had, so it is submitted, the appellant any reason to believe that the burglary was drug related he would not have reported it or left evidence of drugs for the officers to find. However, as we have shown, that information was available to the defence in the used and unused material and the point was forcefully made before the jury.[36]It is submitted that the information would have provided the defence with a stronger basis for inviting the jury "to infer an explanation for why the heroin found at Rashid's house was of remarkable similarity in composition to that found at the appellant's house." That information was known to the defence and was not used at the trial.[37]It is submitted that the information could have provided further material as to the source of the heroin found in the wrap, on the foil and on the dining room table. This it is submitted would have helped the appellant in his claim that the drugs had been planted. For reasons which we have already set out, it would have done exactly the opposite.[38]We turn to Ground B. In the words of the skeleton argument:
"The reliability of the evidence of the `verbal' admissions and the findings of the small amounts of heroin in the wrap (DP5), the burnt silver foil (KRR2) and the traces on the dining table (KRR2), is now undermined by the subsequent disciplinary findings recorded against Detective Constable Robotham. PARTICULARS B1 Detective Constable Robotham who was a central figure in the search of 40 Henley Street and 73 Foley Road, and gave evidence as to the alleged admissions and the finding of the said exhibits, appears to have been elevated as a thoroughly honest and trustworthy witness, who had been 13 years in the police and never been disciplined - see the Summing Up at page 28. And at page 19 the following was also said:- `But of more importance you may think is this; Mr Robotham was the officer who was to act as exhibits officer. He had brought with him a case containing the tamper proof bags which the Drug Squad, for obvious reasons you may think, do take to the scene of a crime so as soon as something is found it can be put in that bag, if for no other reason than to prevent the sort of allegation being made that has been made in this case.' "
[39]We turn to the disciplinary finding. The officer was found guilty in December 1997 on a charge relating to a search carried out by him in 1997, that is years after the events with which this case is concerned. The evidence against him was that her had, in effect, "misappropriated" two or three "skunk cannabis heads", said by him to be required for training purposes. He was required to resign. Mr Garrett makes the point that at all times Dc Robatham was accompanied by others, including, when he returned, a civilian photographer and that tamper proof exhibit bags were used by the police. Having had the advantage of a thorough analysis of the case we take the view that this finding does not undermine the safety of the conviction.[40]The respondent produced disciplinary material for other officers. That material also does not undermine the safety of the conviction.[41]In Ground D the appellant sought to rely on a statement made by a Mr Tariq Shafi to the CCRC. The CCRC took the view that no "new evidence relevant to the safety of Mr Jamil's conviction arises" from it. We agree.[42]In Ground D counsel made two small points about the summing-up. We see no merit in either.[43]In these circumstances this appeal is dismissed. We add that we are grateful to both counsel for the help which they have given to the Court and, in particular, to Mr Garrett for his careful analysis of the material known to the defence at the time of the trial in 1988.[44]We wish to add a few words about cases in which fresh evidence of the kind contained in the report of 22 June 1988 is uncovered. It should always be considered within the actual context of the case and bearing in mind the material available to the defence at the time, the instructions given by the defendant and the manner in which the defence conducted the trial. To put it simply:
"Having regard to these matters, would the fresh evidence have been used by the defence?"
If the answer to that question is in the negative, then it is very unlikely that the discovery of the fresh evidence will render the conviction unsafe.

Cited in 2 later judgments