Saracoglu, R v [2003] EWCA Crim 2244

Case No 199808033W3[2003] EWCA Crim 2244
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON UPON THAMES
CROWN COURT (BINNING HHJ)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 31 July 2003
Before
LORD JUSTICE POTTERMR JUSTICE CURTISMR JUSTICE GAGE
Between
REGINARespondentHUSNU SARACOGLUAppellant
Mr Richard Sutton QC and Mr Michael Cogan (instructed by Achillea & Co) for appellantMr John Black QC and Miss Jacqueline Hall (instructed by Wood Green Trials Unit) for respondentHearing Hearing date : 26 June 2003
JUDGMENT

Introduction

[1]On 27 November 1998 in the Crown Court at Kingston before His Honour Judge Binning and a jury the appellant was convicted by a majority verdict of 11 to 1 of conspiracy to supply a controlled drug of Class A (heroin). On 8 December 1998 he was sentenced to 14 years imprisonment and recommended for deportation.[2]There were a number of co-accused: Tekoglu, Kahya and Karakas, each of whom was also convicted; Kiprit and Ozver, who were acquitted; and Dogan about whom the jury could not agree, but who was retried and convicted in April 1999. Finally, Isik, who pleaded guilty. The Facts[3]A brief outline of the facts grounding the appellant’s conviction is as follows. On 15 January 1998 he and his co-conspirators were under the observation of police officers in an operation codenamed Hydra. One of the sites being observed was 36 Berwick Road in North London, of which premises Kiprit and the appellant had been tenants for a number of months.[4]Kahya, a much travelled Turkish businessman, not normally resident in the UK, who was a distant relation of the appellant, had entered the UK that day having flown from Istanbul after travelling to various European countries. The day before, Ozver who worked for a transport company based in Turkey and made regular journeys between the UK and Turkey, had arrived at Dover and driven to a lorry park in Walthamstow where his vehicle was unloaded.[5]From midday onwards on 15 January, Kahya and Karakas had been seen to visit 36 Berwick Road at a time when the appellant and Kiprit were present. During that time the appellant went out from and returned to the premises.[6]At about 5pm Karakas had a brief meeting with Kahya, not far from the lorry park. At 5.55pm the appellant and Ozver arrived at 36 Berwick Road, the appellant carrying a plastic bag. Two minutes later a third male, Kiprit, approached from the opposite direction carrying a heavy holdall and entered the premises. Soon afterwards, the appellant left the premises for a few minutes and then came back as did Ozver.[7]Just before 7pm Kahya arrived in a hired Vauxhall Cavalier car, which he parked outside the premises, opening and closing the boot before going inside the house. Kahya and the appellant then emerged from the house and looked under the bonnet of the car. Kahya went back inside. The appellant was joined at the car by Kiprit and Ozver who then went back inside the house together, the vehicle having been immobilised by Ozver.[8]At about 7.20pm the appellant emerged from 36 Berwick Road carrying a holdall which he placed in the boot of the car, locking it afterwards.[9]At 7.40pm Kahya left the premises, looking about as he walked away. Ten Minutes later a man wearing a dark jacket and carrying a heavy carrier bag with a dark square on it left the premises. That man was identified by four officers in the case as the appellant, but he denied that it was him.[10]The man went to the Civic Centre at Wood Green, London, N22 where, shortly after 8pm he met Karakas and Isik who travelled there by car with Dogan. Kahya was watching from nearby. The man gave his carrier bag to Karakas who inspected it and then handed it to Isik. Isik then left and hailed a taxi. The man and Kahya then returned on foot to the premises.[11]Meanwhile Isik went to his home at 2 Kimberley Gardens via a snooker club in Green Lanes. Later he went back to the snooker club meeting Dogan and Tekoglu. Later all three were joined by Karakas. Isik and Tekoglu walked to No. 2 Kimberley Gardens, Tekoglu waiting in the street while Isik went inside. He then emerged carrying a plastic bag and both men were arrested. The bag was found to contain nearly 3 kilos of heroin which the Crown alleged that Isik was just about to hand over to Tekoglu. Following the arrest and a search police found more heroin weighing 2 kilos inside Isik’s house.[12]The police also entered the premises at 36 Berwick Road where they found and arrested the appellant, Kahya, Ozver and Kiprit. Kahya had a small sample of heroin in his pocket. A bag in the hallway of the house contained 495grams of Mannitol in four packages. A gun and ammunition were also found on the premises. A search of the car still parked outside, immobilised, revealed a holdall in the boot containing just over 10 kilos of heroin.[13]The total amount of heroin recovered weighed 14.712 kilos and was valued at £1.5million. The Crown alleged that it had been brought into the country by Ozver on 14 January and that 36 Berwick Road was the distribution centre. The drugs recovered from the person of Kahya and from the car were of 43% purity. The heroin recovered from Isik in the street and his house was of 42% purity. An expert said that the drugs shared sufficient characteristics to have come from the same source.[14]So far as the appellant’s participation was concerned, he was identified by police witnesses as the man who had emerged from 36 Berwick Road at about 7pm placing the holdall in the boot and locking it and who left the premises on foot carrying a carrier bag distinctively marked with a dark square and wearing a black jacket. One of the officers who followed him to the Civic Centre said that he had a full face view of him near Wood Green Tube Station. On his later arrest indoors, the appellant was wearing a white teeshirt. However he was recognised by officers as the man who had earlier been wearing the black jacket. A piece of newspaper was found in the appellant’s pocket which bore Kahya’s writing and gave limited directions for finding the lorry park. There was a black leather jacket in the premises which the appellant said was his. The police stated that they found his wallet in the pocket, which the appellant denied, saying it had been on the table. An airline ticket in Kiprit’s name was also in the pocket of the jacket. The Defence[15]The appellant was not the subject of a police interview. He gave evidence in his own defence. It was his general case that he was not the person in the black jacket seen apparently carrying drugs to the handover and he knew nothing about the other drugs. He was of previous good character and involved in the travel side of Kahya’s family business. There was an arrangement that when Kahya visited he would bring money from the appellant’s family.[16]He said he first knew of Kahya’s impending visit on 14 January 1998 and stayed in on 15 January rather than going to college (as he normally would have done) in order to wait for Kahya’s arrival. Once Kahya had arrived and given him his money he went off to the bank to pay it in. At that time he was wearing black jeans, a navy teeshirt and a Nike jacket with a hood. He returned from the bank at about 3.15pm and not long after, Karakas who was staying as a visitor left the house. Soon afterwards the appellant left the house with Kiprit and Kahya. Kiprit did not stay with them but the appellant stayed with Kahya who did not know his way around London. They went to a minicab office where the appellant came into possession of the paper with the notes on it for finding Ozver at the lorry park. When they got there, Kahya talked to Ozver while he, the appellant, went off into a betting shop. Afterwards, Ozver was complaining that he had been sacked by the boss of the transport firm because his carnet was not in order. The appellant therefore offered him a bed at 36 Berwick Road and returned there with him while Kahya had business elsewhere.[17]After about half an hour, Kiprit returned to the premises with a small suitcase and the appellant left the house for about 10 minutes to buy some peppers. He was still wearing his Nike top. After he got back, Kahya returned to the address with the car and the appellant and Ozver went outside to look at it at Kahya’s request. It was Ozver who immobilised the car. The appellant denied that he left the house again until he was arrested. He was not the man who emerged at 7.20pm and put the holdall in the car. Nor was he the man in the black coat seen leaving the premises and going to the Civic Centre. He had simply stayed inside and watched television, then a video and had slept at some point.[18]He admitted that the black leather jacket exhibited before the jury and found at the time of his arrest was his. He said it had been bought outside the UK, but it was Kiprit who wore it in the UK. That was why his air ticket was inside. The appellant denied wearing the jacket on 15 January. He said that by the time he was arrested he had removed his navy teeshirt and changed into a white one. He had nothing to do with walking to Wood Green and was not in any way involved with drugs, or the gun found at the premises. He said that his wallet had been on the table at the time of his arrest and not in his black jacket.[19]Kahya also gave evidence. He admitted he had been involved in arrangements to hand over the drugs but said that he had become involved as a result of duress and threats upon his life and that of his family which emanated from a man called Adiguzel in the UK and another in Istanbul. He said he had no previous convictions though he had previously bribed people to obtain false passports and visas. He gave details of how he became involved with Adiguzel, the supply of false passports and the transfer of money from London to the continent. He also gave details of the origins of the drug deal observed by the police and of threats which had induced him to participate and in which he was participating at the time of his arrest. The man in London principally concerned with the handover of the drugs was a man called Tufan who was to travel to London and stay at 36 Berwick Road, Kahya being the go-between and effecting an exchange of drugs for money.[20]When he, Kahya came to the UK he went to No. 36 where Kiprit and the appellant were both present when he arrived. He made telephone arrangements with Tufan who had arrived at the premises with a wheeled suitcase containing drugs at 1.15pm. [Police observations at the premises had not started until about 4pm.]. Tufan also brought a gun and ammunition which he said was for Adiguzel. Kahya said that he had told Kiprit about the drugs after he had appeared and seen what was going on, telling Kiprit that he was involved only in order to save his life. Kiprit had suggested it would be better not to have the bag in the house. He said he did not inform Karakas or the appellant about the drugs. When he, the appellant and Kiprit went off together they intended to meet Ozver who told them he had been sacked. After that Kiprit went on his own way. Kahya met Ozver in a café and the appellant joined them later, inviting Ozver to stay at No. 36. Kahya had tried to put him off but the appellant had taken Ozver back to the house.[21]Kahya said that the appellant was unaware of the drugs. He had asked the appellant to check the oil and water and to disable his car to prevent it being stolen. He told Kiprit to keep 10 kilos in the bag and the rest in a carrier. He was worried about the appellant and Ozver returning and seeing what was going on and he stayed in the living room to head them off. He had set off for the Civic Centre alone just before 7.45pm but turned back and then walked with Kiprit along Lordship Lane. He said that Kiprit was wearing a black coat and jeans.[22]When they got back to the premises he believed that the gun and drugs were still in the oven where he had left them and he was shocked when the police arrested them all at 36 Berwick Road. He said he had never mentioned this account when interviewed because he was frightened and was in a bad situation, tired and wanting to make a telephone call which was not permitted. He only decided to tell the full story after he had been visited by his family. He explained a family connection which he had with the appellant. Ozver, Kiprit and the appellant were all good friends whom he trusted. He said that when they had visited the lorry park the appellant had been wearing his Nike top.[23]Kiprit did not give evidence. It was simply his case that he was not a party to any of what had gone on and he was not the man wearing the black jacket. In that respect, he relied upon the police evidence which identified the appellant as the man in black and also a passage of Ozver’s interview which was before the jury because he told the jury that what he said in his interview was true. In that interview Ozver said he had been picked up in Walthamstow by the appellant who was wearing a black bomber jacket. The Grounds of Appeal[24]The grounds of appeal are somewhat unusual. It is the complaint of the appellant that he was represented by the same firm of solicitors as his co-accused Kiprit with whom there was a clear conflict of interest. He complains that his instructions actively to advance the defence that Kiprit and not the appellant was the man in the black jacket were not followed, he being advised not to do so. It is complained that, when the judge pointed out the possibility of conflict, he was misled by counsel acting for appellant as well as counsel for Kiprit. It is generally asserted that those representing the appellant did not advise him correctly or put forward his defence properly because of the conflict of interest and he therefore did not have a fair trial.[25]As a result of the complaint the applicant was invited to waive privilege and did so. Detailed statements were obtained both from counsel, Mr Fessal, who appeared for the appellant at trial, and from Mr Gooding the appellant’s solicitor. In the light of their explanations, leave to appeal was refused by the single judge. However, leave to appeal was later granted by the full court on 6 April 2000 and upon this appeal we heard evidence from the appellant, Mr Fessal, Mr Gooding and an interpreter Ms Budak in relation to the issues raised. We also heard evidence from Mr Shepherd, counsel who appeared in place of Mr Fessel upon a pre-trial application (see further at paragraphs 28-29 below). The Course of the Proceedings and the Question of Representation[26]Stewart & Co, the solicitors instructed for the appellant under the legal aid scheme had originally acted for four of the defendants; the appellant, Kiprit, Ozver and Kahya. In August 1998 Ozver and Kahya sought and were granted transfer of their legal aid to a different firm (which already represented Tekoglu) on grounds of "loss of confidence". At the hearing of Kahya’s application for change on 19 August 1998, the judge indicated that he would list the case for 28 August 1998 in order to establish the readiness for trial and the state of representation of all defendants.[27]On 28 August, Mr Fessal was unable to appear and Mr Shepherd of counsel was briefed in his stead to represent the appellant and apply for a change of solicitor under the legal aid scheme. The judge observed that one of the purposes of the hearing was to make sure that everyone was content with their representation and that there was no prospect of being faced with a last-minute request before the trial for a sudden change. The judge informed Mr Shepherd that if a change were sought simply on the basis of "lack of confidence", without adequate and concrete reasoning advanced in support, it would be regarded as insufficient. He adjourned the matter for a period so that Mr Shepherd could take full instructions.[28]Upon Mr Shepherd’s return to court, he informed the judge that the appellant did seek a change of solicitors, the grounds being that he was not happy with their performance in that the Turkish translation of the prosecution material had not been forwarded to him until late and some had not arrived. He had also asked the solicitors to get character witnesses from Turkey, which they had not done. When asked, counsel explained that the translations had been available for some time, and could at once be made available. The judge observed that there was still plenty of time for character witnesses from Turkey to be obtained. No other reason for requiring a change was advanced and the judge ruled that the solicitors should continue to act, it having been made clear earlier that the appellant was satisfied with his representation by Mr Fessal. No question as to any possible conflict of interest with Kiprit was raised.[29]During the course of the trial, on 7 October 1998, a question was put by counsel for Karakas who suggested in terms that it was Kiprit who was the man in the black jacket observed to leave the premises carrying the plastic carrier bag. The judge, in the absence of the jury, raised the question whether there was a conflict of interest between the appellant and Kiprit upon this issue. Mr McKinnon for Kiprit thereupon made clear that it was Kiprit’s case simply that he was indoors at 36 Berwick Road throughout the relevant time and stated:
"When Mr McGrail on behalf of Mr Kahya put specifically that it was Kiprit, that does not emanate, and has not so far in the trial, and as I understand it will not, emanate from Mr Saracoglu."
[30]The judge then turned to Mr Fessal and asked him whether he agreed with what had just been said, to which Mr Fessal replied "Absolutely". The judge then asked "So in fact there is no conflict between you?" and Mr Fessal replied "I agree with everything my friend has said." The judge then stated:
"Well it is important, because I do not want anyone complaining later on, after the trial is over "that I wish I had had different solicitors, because I did not say something, or because I would have said it, if I had had different solicitors."
I am particularly sensitive about it because on 28 August, I know both of them applied to change solicitors, but there was no suggestion at that stage of a conflict. But whilst nothing has been put specifically on each of your behalves, I think all I can do in the circumstances is invite you both to keep a careful eye on the situation, because I want to avoid a situation whereby people might complain after the event that they wished they had had totally independent legal advice. I am not suggesting that either of you are not giving independent legal advice, but they are both instructing the same firm of solicitors when all is said and done. So in the light of what you have told me all I will invite you to do, which I am sure you would do anyway, is to keep an eye on the situation."[31]Both counsel then replied "Absolutely".[32]The matter was then left there. During the course of his evidence, as already indicated, it was the appellant’s case that he too remained indoors at 36 Berwick Road and was not the man in the black jacket who had gone with a carrier bag to the Civic Centre. However, he made no assertion that Kiprit was that man. Nor did he say Kiprit had left 36 Berwick Road at the material time. It was his case that, in a house where a number of people were to-ing and fro-ing he (the appellant) was watching the television or asleep. He told the jury that, although the leather jacket recovered by the police on 15 January was his, he did not wear it at all on that day. Whenever he had been out from the premises he had worn the Nike jacket.[33]When cross-examined by Mr MacKinnon for Kiprit, Mr MacKinnon did not put to the appellant positively that he was wearing the black jacket on that day. However, he did put to him that the ticket found in the pocket of the jacket in the name of Mr Kiprit had been given to the appellant by Mr Kiprit to see if he could get it extended free of charge by speaking to a Polish airline. The appellant said he could not remember exactly. However, when pressed, he said that he had fetched Kiprit from Heathrow Airport on 27 July and that Kiprit was wearing the jacket at that time. It was then put to him that Kiprit had never worn the jacket. The appellant replied that Kiprit had worn it at the airport, as the security cameras would show, if checked. Thus, a pregnant issue was raised as to whether Kiprit or the appellant was the man who wore the jacket later that day.[34]When cross-examined for the prosecution by Mr Black QC, the appellant was then vigorously pursued on the basis that he was endeavouring to distance himself from a jacket which he admitted to be his, and that he was indeed the man identified as wearing it when bearing the carrier bag from 36 Berwick Road to Wood Green Centre. This the appellant denied. He still did not positively assert that it was Kiprit who was the man who went to the Wood Green Centre and/or was wearing the black jacket on that occasion. However, he was obliged to admit that he was wearing the black jacket in a number of photographs taken on earlier occasions and found at 36 Berwick Road. The Evidence on the Appeal[35]The evidence of the appellant before us was to the following effect. When he had received the prosecution papers in prison, he appreciated that he was identified as the man in the black leather jacket who was followed to the Civic Centre. He said he "did not agree" it was him. He asked Kiprit about it in prison and Kiprit confessed that it had been him. Kiprit also assured the appellant that, at trial, he would say he was the man in black.[36]Shortly before the trial, however, Kiprit’s position appeared to change. He ceased talking to the appellant and separated himself from him. The appellant wanted to talk to Kiprit and his barristers, but he could not. As he put it "Contact between us was cancelled," and Kiprit ignored him in prison. In these circumstances, the appellant felt strongly that his solicitors were not defending him as he wished, were giving precedence to the defence of Kiprit, and he therefore wished to change solicitors. However his application to the court was refused.[37]The appellant said he first met Mr Fessal before trial at a time when Kiprit was still in touch with him and saying that he would accept in court that he was the man in the black jacket. The appellant said he told Mr Fessal of his concerns that if this was not so, he (the appellant) would appear to be the man in question. Mr Fessal advised him from the start that it was not in his interests to attack Kiprit and get involved in an argument with him as his co-accused. The appellant said that he did not agree, which was one of the principal reasons why he wished to change his solicitors (though not his counsel). The appellant said that, in those circumstances, once the trial started, he objected to the solicitors being present when he had regular contact with Mr Fessal at conferences in the cells, as he did not wish any information as to the nature of his defence to get back to Kiprit. He said that, having received the advice that he did from Mr Fessal, when he gave evidence he did not positively assert that it was Kiprit who went to the Centre at Wood Green. It was a substantial shock when he was cross-examined by Kiprit’s counsel in an effort to show that it was the appellant who wore the black jacket. Following his evidence, he said that he protested to Mr Fessal at what had happened and was told by Mr Fessal that he would deal with the matter by cross-examining Kiprit when he came to give evidence, as well as in his final speech.[38]Again it was a surprise and shock to him (as well as to Mr Fessal) when, without any prior indication, Kiprit was not called to give evidence, so that the opportunity to cross-examine him was lost.[39]When cross-examined before us, the appellant insisted that he had made clear to Mr Fessal before the trial not simply that he was not the man in the black jacket but that Kiprit was that man and he wished to say so. However, in the light of Mr Fessal’s advice, he did not pursue that course and that was why he did not say so when giving evidence in chief. He accepted, however, that, when cross-examined by Mr Black at trial on the basis that he was the man in black, and aware of the importance of the issue, he had ample opportunity to implicate Kiprit if he wished, but he did not do so. He said that he only learned that Kiprit was not going to give evidence after his own evidence was complete.[40]He said that, after his evidence was complete, he had complained vigorously to Mr Fessal about how he had conducted his case in the presence of Ms Budak, the interpreter.[41]The evidence of Ms Budak may be summarised as follows. She had started to act as interpreter after the trial had started and while the prosecution witnesses were still being called. In the dock she sat between the appellant and Kiprit and realised that there was a problem between them in that they were not speaking to each other. After some days, the appellant told her that, according to his evidence, the person who went to Wood Green Civic Centre was Kiprit because it was Kiprit who was wearing the black leather jacket and not the appellant. The appellant said he was wearing his Nike jacket all that day.[42]She said that she received this information in the 5-10 minute breaks in the dock when talk would take place with the defendants. She said that there was also conversation to that effect between the appellant and Mr Fessal in the cells. She said that Mr Fessal was saying "Okay, okay", by which she plainly meant that he was understanding the point, but she added that Mr Fessal "did not want to hear". She confirmed that, at the conferences in the cells, the appellant did not wish to have a representative of the solicitors present. She said that immediately he objected, the solicitor was thereafter excluded by Mr Fessal.[43]Ms Budak said that she was not there on the first day of the appellant’s evidence, but was there at the time of cross-examination by Kiprit’s counsel. She said that, after his evidence was completed, the appellant was very angry and sad because of the questions which had been put to him by Kiprit’s barrister, which indicated that Kiprit did not accept that he was the man carrying the bag to Wood Green.[44]She said that there were a number of discussions and conferences in the cells at which she was present in which the issue of the holdall and the jacket was discussed. She said that Mr Fessal advised the appellant simply to answer the questions which were put to him when he gave his evidence in chief. She made clear that the appellant never expressed any unease or dissatisfaction about Mr Fessal’s conduct of the case on his behalf either after the appellant had completed his evidence or after Mr Fessal’s closing speech.[45]Mr Fessal told us in evidence that, when first instructed by Stewart & Co, he had full instructions and a proof of evidence (which we have seen) from the defendant. He also had the appellant’s comments on the depositions. It was clear throughout that the appellant’s defence was that he was not the person referred to in the police depositions as "Target 1" who was, inter alia, the man identified as leaving 36 Berwick Road in the black jacket to go to Wood Green. The appellant did not identify to Mr Fessal another person whom he believed to be that man or advance any positive case in that regard. On that basis, Mr Fessal was not aware of any conflict between the appellant and Kiprit. That remained the position until well into the trial.[46]During the course of the trial, there came a stage when counsel for Karakas suggested to a witness that Target 1 was not the appellant but Kiprit. That was not something which had even been suggested to the observing officers at the time they gave evidence and it was that which induced the intervention by the judge to inquire whether or not a conflict existed between the appellant and Kiprit in this respect: see paragraphs 29-31 above. There was an adjournment for clarification of the matter. Mr Fessal went down to the cells and obtained confirmation of the appellant’s instructions that he was making no positive case in that respect and he did not require Mr Fessal so to suggest. Mr Fessal denied that, prior to trial or thereafter, the appellant ever told him that Kiprit had confessed to being the man in black or that he would give evidence to that effect.[47]Mr Fessal confirmed that he only became aware that Kiprit would not give evidence just before his counsel so stated in court. He had not regarded it as appropriate or necessary to advise the appellant to advance a positive case against Kiprit. There had been a number of people present at 36 Berwick Road who were possible candidates for the role of the man in the black jacket and the prospect of a cut-throat defence was not desirable. He stated that he appreciated that, if his instructions had changed, that would have created a conflict of interest situation so far as the solicitors were concerned. However he did not think it created a problem for him as counsel, as he had been solely concerned with the case for the appellant.[48]Mr Fessal said that the appellant appeared to him to be a very capable, intelligent and shrewd individual with whom he discussed the implications arising from the unexpected question put by counsel for Karakas. Mr Fessal advised the appellant of the dangers of a cut-throat defence and asked him whether or not the position as previously stated to his solicitors and Mr Fessal had altered. The appellant confirmed the instructions he had given, and Mr Fessal thus felt able to assure the judge that there was no conflict involved.[49]Thereafter, the appellant gave evidence as described at paragraphs 32-34 above. Following that evidence, there were no reproaches from the appellant as to the position and no suggestion that he had been misadvised by Mr Fessal.[50]Mr Shepherd, counsel also gave evidence before us as to the pre-trial application for a change of solicitor (paragraphs 27-28 above). He stated that he had never been informed by Stewart & Co that there was a conflict of interest between the appellant and Kiprit or that the application was to be made on conflict of interest grounds. He had time for a full and proper discussion with the appellant who made clear that he wished to change his solicitors to the same firm which acted for Kahya, but he limited any complaints made against Stewart & Co to the matters which Mr Shepherd placed before the judge and which the judge plainly thought inadequate ground for a change of solicitor under the legal aid scheme so close to trial.[51]Mr Gooding,who was employed by Stewart & Co as a solicitor at the material time, stated that he had prepared the appellant’s case from start to finish and never considered that there was any conflict of interest between him and Kiprit. At the outset he had a meeting with both of them, but later saw them separately and individually in relation to their defences. He said that the appellant never told him that Kiprit was the man in the black jacket or who had moved the drugs, nor did the appellant ever say that Kiprit had so admitted to him in prison. Had he done so, it would have given rise to a conflict of interest between them and Stewart & Co would have ceased to act.[52]Mr Gooding remembered the pre-trial application by the appellant for separate representation, but said that it had not been on the grounds of conflict of interest. He recalled that the appellant had asked for the change on the grounds that there was a conflict of interest, but he had never stated why. When he made clear that he wished to change, Mr Gooding had told counsel to make clear to the court that Stewart & Co were content that there should be a change, although in fact he was not aware of any good reason for such change. He said that, during trial, he became aware as Kiprit’s solicitor that there was pressure upon Kiprit from his co-defendants to accept that he was the man with the bag; however, Kiprit was not prepared to do so and did not change his instructions that he was not that man.[53]In summarising the evidence of the witnesses as set out above, we have confined ourselves to the essentials of the evidence going to the question of conflict of interest. There was considerable evidence going to the peripheral question of whether and how far Mr Gooding and/or other clerks of his firm attended at the conferences between the appellant and Mr Fessal. Also the question of what advice was given to Kiprit by Stewart & Co and Kiprit’s counsel in the light of Kiprit’s complaints of pressure from his co-defendants. We do not think it necessary to resolve those matters because we are quite satisfied that, in conducting the defence, Mr Fessal was assiduous in his attendance upon the appellant at least twice a day during the trial, that, if and when the appellant objected to the attendance of a solicitor’s clerk, Mr Fessal asked her to leave and that in all material respects the appellant looked to Mr Fessal (rather than Stewart & Co), and received from him, advice as to the conduct of the proceedings. We are satisfied that at all times Mr Fessal had regard solely to the interests of the appellant and not Kiprit. We are also satisfied from our own observations of him that the appellant is, and was, as assessed by Mr Fessal, capable, intelligent and shrewd, with a lively appreciation of the issues and well able to discuss them in detail (as he plainly did) as matters proceeded.[54]We now turn to consider whether there is any substance in the grounds of appeal raised. Conclusions[55]Perhaps the first thing to be made clear is that, for the purposes of Article 6 of the European Convention on Human Rights, there can be no suggestion that the appellant did not have a fair trial. No complaint whatever is made as to the conduct of the judge, the evidence admitted, the procedures followed or the careful summing up and it is plain that the appellant was afforded a full opportunity to challenge the prosecution evidence and to advance his own defence.[56]The mere fact that solicitors or counsel may have accepted instructions or continued to act in a situation where a conflict of interest exists between their client and a co-defendant represented by the same solicitor cannot in itself be regarded as a ground of appeal. The question must always be whether that fact or some step taken or omitted as a result of, or influenced by, that fact, has given rise to unfairness in the course of the trial and/or affects the safety of the conviction. In this case, as it seems to us, even if there was (as there may well have been) a potential or actual conflict in the solicitor’s position in continuing to act both for the appellant and Kiprit in circumstances where the development of a ‘cut-throat’ defence should have been foreseen, we are quite satisfied that all the material advice was given and the material decisions taken by Mr Fessal, who was not himself contaminated in any way by knowledge of, or influenced by, Kiprit’s intentions or interests so far as the conduct of the appellant’s case was concerned. That being so, it further seems to us that it is Mr Fessal’s knowledge of matters, the steps which he took and the advice which he gave, which should attract the true focus of the grounds of appeal and the consideration of the court.[57]So far as those matters are concerned, having heard the evidence and considered the attendance notes placed before us, our conclusions are as follows.[58]The appellant was not in any way a reliable witness before us. In a number of respects his evidence was plainly incorrect and governed by hindsight. In particular, his recollection that he raised his complaint of conflict of interest with both Mr Fessal and Mr Shepherd before trial as a ground for a change in his solicitors is plainly in error. Neither counsel had any reason to misstate the position or do other than bring the matter before the judge, had the appellant mentioned it. The absence of any articulated ‘conflict of interest’ objection to Stewart & Co continuing to act, as opposed to a generalised grumble about their assiduity, is amply confirmed by the transcript of the pre-trial proceedings. We also reject the appellant’s evidence (contrary to that of Ms Budak) that he remonstrated with Mr Fessal to the effect that he had misadvised the appellant or mishandled the defence.[59]There were no doubt early discussions between the appellant and Mr Fessal as to the effect and implications of the evidence served, which plainly identified the appellant as the man in the black coat. However, we are satisfied that the instructions of the appellant were that, whereas he was obliged to accept the black coat found at 36 Berwick Road was his, he was not that man and could not say who was. Equally, we consider that, in the circumstances, Mr Fessal could properly take the view that no conflict existed so long as those remained his instructions. We are unable to make any finding whether, as the appellant told us, Kiprit had "confessed" to him in prison and stated that he would admit to being the man in the black jacket. We simply observe that, if it is true, we are surprised that the appellant did not so inform Mr Fessal of that fact at the time, as we are satisfied he did not. We are also satisfied that that remained the position until well into the trial.[60]We are not satisfied that Ms Budak’s recollection was accurate when she said that the appellant told her that "according to his evidence" it was Kiprit who carried the bag to Wood Green. We have little doubt that, in ongoing discussions with Mr Fessal, it was recognised that would be the likely effect of the appellant’s evidence that he was not that man, bearing in mind the presence in the jacket of Kiprit’s air ticket. However, we do not accept that the appellant made clear that he could, let alone would, so state, his defence being that he was sleeping and watching television at 36 Berwick Road at the relevant time. If he had made the position clear, there was, as Mr Fessal pointed out, no reason why he should not advance the case in accordance with his instructions. Furthermore, Ms Budak confirmed that, at no time, even after the conflict had surfaced in court and the appellant was frustrated and upset at that development, did he complain of the way Mr Fessal had dealt with the case.[61]We have no doubt that the conduct and implications of the defence were discussed between Mr Fessal and the appellant throughout and that the appellant was not at any stage misadvised by Mr Fessal. We are satisfied that the appellant’s decision not to implicate Kiprit directly (if he was in a position to do so) was his own decision, being freely reached and based upon reasonable advice as to the risks involved in a ‘cut-throat’ defence.[62]We also have little doubt that the appellant throughout hoped that Kiprit would say nothing to implicate him directly and believed that, if he did so, the position would be able to be rectified by Mr Fessal in cross-examination of Kiprit, an expectation which proved misguided when Kiprit was not called to give evidence.[63]In those circumstances we reject the complaint of the appellant that he was misadvised by Mr Fessal or that his case was mishandled as alleged in the grounds of appeal. In so far as there may have been any conflict of interest involved by reason of Stewart & Co continuing to act, we do not think that it had any operative adverse effect upon the conduct of the appellant’s defence which effectively resided in the hands of Mr Fessal and the appellant himself.[64]We would only add this. If we are in any way mistaken in our findings; if Mr Fessal did (as alleged) effectively ignore the appellant’s instructions that he could identify Kiprit as the man in the black jacket; and if Mr Fessal’s advice dissuaded the defendant from so asserting in evidence, we would still be of the view that the conviction was safe.[65]We consider that the evidence of the appellant’s participation was overwhelming. He was a co-tenant of the premises from which the distribution of a major consignment of drugs occurred on a day when he was present (rather than at college), and, on any view, he was closely involved in the comings and goings to and from his own home. He was also a relation of Kahya who admitted his own part in the conspiracy (under duress as he alleged) and whom the appellant had accompanied to Walthamstow. He had been identified by four police officers as the man in the black jacket, which was admittedly his own, and which contained his wallet in one of the pockets. Photographs on the premises also identified him as the habitual wearer of the jacket contrary to his assertion that it was Kiprit who wore it in the UK. Finally, although the appellant did not assert in terms that Kiprit was the man wearing the coat, it was accepted in the final speeches of counsel that inferentially that was what the appellant was saying and it was on those battle lines that the jury reached its verdicts.[66]For the reasons above stated, this appeal is dismissed.