Ebcin & Ors v R [2005] EWCA Crim 2006

[2005] EWCA Crim 2006

Case No 2004/01834/B4, 2003/06741/B4 & 2004/000324/B4

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

HIS HONOUR JUDGE GORDON

T 20030024 & T 20030024

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27th July 2005

Before

LORD JUSTICE AULD

MR JUSTICE OWEN

MR JUSTICE DAVID CLARKE

Between

MEHMET EBCINApplicants

ABDURRAHNAN GENCERApplicant

MURAT OZTURKApplicant

REGINARespondent

Mrs Nadine Radford QC and Mr Gerald Mohabir for applicant, Ebcin

Mr Mark Tomassi for applicant Ozturk

Mr Peter Clarke QC for Respondent

Hearing (Hearing date : 8th April 2005, final written submission 20th May 2005).

Judgment

[1]The matter giving rise to these applications for permission to appeal against conviction was the importation into this country in March 2002 of nearly 10 kilogram s of heroin, with an estimated street value of about £900,000. The three applicants, Mehmet Ebcin, Adbdurrahnan Gencer and Murat Ozturk with two others, Selim Duzgun and Vahdettin Aslam, were jointly indicted with being knowingly concerned in dealing with that consignment of heroin with intent to evade the prohibition on its importation, contrary to section 170(1)(b) of the Customs and Excise Management Act 1979. In circumstances that we shall mention, there were, in the event, three separate trials before His Hon Judge Gordon and a jury at the Central Criminal Court in which the three applicants were found guilty of the offence and Duzgun and Aslam were found not guilty. The Judge sentenced Ebcin and Gencer each to 14 years’ imprisonment and Ozturk to 12 years’ imprisonment.

[2]The prosecution case and evidence were that Customs officers followed and watched the five men for a number of days before moving in on them on 20th March 2002, just after the transfer of the consignment of heroin from one vehicle to another in a road in North London. There was also evidence of much mobile telephone traffic between the accused over those days and subsequently. The transfer was made by Aslam and Huseyin Arik (the latter was also jointly indicted with them but absconded before trial) from their vehicle to Ozturk in another, overseen by Selim Duzgun in a third vehicle, and with Ebcin and Gencer nearby in a fourth vehicle. When the Customs officers moved in, Ozturk fled in his vehicle with the drugs. The police arrested the others, but, because Ozturk had driven off with the heroin, leaving no evidence of its temporary presence at the scene, they released them after a short period. However, a little later the officers found Ozturk’s vehicle, abandoned and with the consignment of heroin. All the defendants save Ozturk, were re-arrested on the same or following day. Ozturk was arrested when found two months later.

[3]In interview, Ebcin remained silent, but his defence, like that of Gencer, who did answer questions in interview, was to be that he did not challenge the officers’ evidence of their observations, but knew nothing of the heroin. Duzgun gave a short exculpatory account in interview, in which he too accepted the observation evidence, but implicitly denied knowledge of the heroin. Notably, he gave no indication at that stage of what was to form part of his defence statement, namely that his involvement in all this was as a registered informant for the National Criminal Intelligence Service (“NCIS”). Ozturk denied in interview that he was the man observed at the scene of the hand-over on 20th March 2002. However, at trial he was to acknowledge that he had been there, but said that his behaviour had been misunderstood and he knew nothing of the heroin.

[4]The prosecution, having jointly indicted all the participants, prepared for a joint trial of them at the Central Criminal Court. As part of pre-trial secondary disclosure the prosecution served on each of the accused his co-accuseds’ defence statements. As we have indicated, Duzgun, in his statement, disclosed for the first time, as was the case, that he had been a registered informant for the (NCIS) when the alleged importation took place. In his statement, he maintained that he had informed his NCIS “handlers” of the proposed offence and of Ebcin’s instigation of and involvement in it. He also stated that throughout the period of the officers’ observations of him and his co-accused, he had acted with the authority and on the instructions of his handlers. He denied participation in the offence, asserting that a breakdown in communication between him and his handlers had forced him, in his role of informant, to attend the hand-over of the drugs.

[5]The prosecution’s response to Duzgun’s account in his defence statement was that, although he had indeed been an NCIS informant at the time, it was a gross distortion of the truth. It maintained and was to maintain at his trial that he had acted outside the bounds set by his handlers and had been engaging in his own criminal activity, relying on his informant status as an excuse should he be caught in the act. Accordingly, it was, as Mr Peter Clarke QC, leading counsel for the prosecution and for the Respondent on this appeal, observed in his submissions to the Court, clear from the outset that Duzgun’s informant status and allegations in his defence statement that Ebcin had been master-minding this offence were likely to become a major issue in the case as a whole.

[6]In the course of lengthy and contentious pre-trial disclosure hearings the prosecution also served on all the other accused two main categories of documents.

[7]The first category was of contact sheets maintained by Duzgun’s NCIS handlers indicating that over a long period of time Duzgun had been giving them information, alleging that Ebcin had been dealing in vast quantities of heroin.

[8]The second category was of transcripts of Duzgun’s evidence in chief at a trial in 1997 in which he had been charged and convicted with others of drug trafficking and in which his defence had been remarkably similar to his proposed defence in this matter, namely that he had been acting as a registered informant, not as a participant, and had provided information on Turkish drug dealers. All the copies of the transcripts, save by mistake those served on Ebcin, had been redacted so as not to reveal the identity of the agency with which he had claimed at that time to have been registered as an informant. The jury in the 1997 prosecution, by their conviction of him, had clearly rejected that defence. The Judge directed that Ebcin could not refer to at trial, or communicate to his co-accused, the un-redacted information in his copy of the transcripts as to the identity of the agency for which Duzgun claimed in the 1997 trial to have been acting as an informant. However, the general thrust of his defence in that trial was plain from the remainder of the transcripts. Had matters stopped there, it would have suited them, but not Duzgun, for them to be able to exploit it in a joint trial of them all. But, as we have said, there was no joint trial in which Ebcin or the others could canvas this aspect of Duzgun’s case.

[9]In the course of the prolonged arguments over disclosure the prosecution also discovered and disclosed to the defence that the investigating Customs officers, shortly before this alleged offence, had received information from a highly sensitive source other than Duzgun, that Ebcin was organising an importation of drugs assisted by Gencer – hence their observation of all the accused leading up to and including the hand-over.. We are satisfied from what we have learned from Mr Clarke in an ex parte hearing preceding these applications that this source could not lawfully be disclosed to the defence. There was no duty on the prosecution to disclose that information to Ebcin and Gencer because it tended neither to undermine the prosecution case against them nor to assist their defence – quite the reverse. However, the nature of the information could be of great interest and potential value to Duzgun in the preparation and conduct of his defence that they, not he, had planned and committed this offence. The prosecution, in an attempt to do justice to Duzgun as well as to Ebcin and Gencer, indicated that, although it would not attempt to lead any evidence on this aspect, it would, if requested by any of the defendants, make a formal admission in the following terms:

“On the date of the arrest and seizure in this case 20/3/02 Customs and Excise received reliable information independent of Selim Duzgun that Mehmet Ebcin was organising a handover of what must have been drugs on that same day. The same source of intelligence indicated that Gencer was also knowingly involved.”

[10]Such an admission (“the proffered admission”) was not one that Ebcin and Gencer were likely to request from the prosecution at trial. But, as we have indicated, Duzgun would clearly wish to exploit it in some way in his defence. If the matter was to proceed by way of a joint trial of all the accused, as up to then the prosecution, with the approval of the Judge, had proposed, there was the certainty of very bitter cut-throat defence as between Ebcin and Gencer on the one hand seeking, by reference to Duzgun’s failed “informant” defence in the earlier trial, to discredit his claim to have been acting an NCIS informant in the events leading to this trial, and Duzgun, on the other, seeking to rely in some way on the proffered admission that the prosecution had information from a source other than him that Ebcin and Gencer were criminally responsible for this drug-trafficking transaction. Similarly, in the case of Ozturk and Aslam, there was the prospect that, if they were tried with Ebcin and Gencer, they too might wish to take advantage of the proffered admission.

[11]The discovery by the prosecution comparatively late in the day of the information giving rise to the proffered admission brought to a head the question of severance that had been simmering in the case ever since the making and disclosure to the defence in Duzgun’s defence statement of his claim to have been acting as an informant, not a criminal participant. Ebcin and Gencer, on the advice of their then counsel, initially did not seek such severance, taking the view that, even if the proffered admission went before the jury, they had more to gain than to lose in a joint trial with Duzgun, on the basis that they could put before the jury the 1997 jury’s rejection of his similar “informant” defence.

[12]However, the prosecution, who, had earlier considered that justice to all would be best achieved by a joint trial of all the accused, now considered that Ebcin and Gencer could not possibly have a fair trial if the proffered admission were put before the jury, and it applied to the Judge to sever the trial into three trials. The Judge, who, like the prosecution, had originally set his face against severance, concluded that the fairest way of dealing with the matter as between all the accused was to accede to the prosecution application. In the result, there were, as we have indicated, three consecutive trials, first, of Ebcin and Gencer, second of Duzgun on his own, and third, of Ozturk and Aslam, resulting in convictions of Ebcin, Gencer and Ozturk and acquittals of Duzgun and Aslam.

[13]Neither Ebcin nor Gencer, in the course of their joint trial, asked for the proffered admission to be made. But nor did they attempt to put Duzgun’s 1997 conviction before the jury, or even run a defence blaming him for their predicament. As for Duzgun, he did in his trial rely on his “informant” defence, (which the prosecution sought to challenge by calling his NCIS handlers), and he asked for the proffered admission, which the prosecution made. The prosecution could not put his 1997 conviction before the jury, nor, in consequence, any evidence as to his unreliability as an informant in that or any other matter outside this alleged offence. So, in the event, he was able in his trial, without risk from anyone bringing up the 1997 failed “informant” defence and drug-trafficking conviction, to rely on his “informant” defence implicating Ebcin and, by association, Gencer, And in the Ebcin and Gencer trial, they were relieved of any allegations that Duzgun, if he stuck to his defence statement, would have made against them and also from the proffered admission for which Duzgun would no doubt have sought in a joint trial with them. Ozturk, in his trial with Aslam, was on the fringe of any cut-throat defence, and had no occasion to fear, in the absence of Duzgun, Ebcin and Gencer from his trial, any embarrassment arising out the prosecution disclosures relating to them. But he had enough troubles of his own with the prosecution, in meeting its powerful evidence of his flight from the scene with the consignment of heroin, his abandonment of it shortly afterwards and his disappearance until found and arrested after two months later.

[14]The applicants variously raise the following issues: i) that the prosecution’s test for disclosure of information relating to Duzgun’s history as a registered informant in relation to drug-trafficking was too narrow; ii) that the Judge, in severing their trials from that of Duzgun, denied each of them a fair trial; iii) that the Judge, in declining to direct the appointment of a special counsel to assist on matters of disclosure and public interest immunity and as to severance wrongly denied each of them a fair trial; iv) (Ebcin and Gencer only) that the Judge wrongly admitted evidence regarding the acts and declarations of co-defendants as evidence going to the alleged common purpose. v) (Gencer only) that the Judge wrongly gave a Lucas direction as to his alleged lies in interview; vi) (Ozturk only) that the Judge wrongly refused to allow the acquittal of Duzgun to be put into evidence and that he permitted the prosecution to conduct its case on the basis that he was guilty of the offence; vii) (Ozturk only), that prosecuting counsel wrongly revealed to the jury, in his cross-examination of Ozturk that Duzgun had previously been convicted of drug trafficking and that the jury who had acquitted him at his recent trial had not known of that.

(i) Disclosure

[15]The applicants complain that the prosecution and the Judge laid down a test for disclosure of material that was too narrow and inappropriate in the circumstances, and incompatible with authority. As a result, they maintain that they were unfairly denied access to relevant information about Duzgun’s history and reliability or otherwise as an informant, which they might have been able to put to good use in support of their defence if tried jointly with him.

[16]The test for disclosure applied by the prosecution of matters relating to co-accused was – in non-statutory terms – that prima facie each accused was entitled see any material that might be of use in discrediting any of his co-accused. More specifically, in relation to disclosure of sensitive information, including that of Duzgun’s past status and activities as a registered informant, the prosecution stance was that any such information that related to this alleged offence was disclosable, but, prima facie, not any that he had given about other drug dealing in his role as an informant except where it related to information provided by him that was demonstrably untrue or wholly unreliable.

[17]Such a test, submit counsel on behalf of the applicants, caused unlawful prejudice to them by possibly denying them access to relevant material regarding Duzgun’s activities as an informant for a number of public agencies. They argued that any material relating to Duzgun’s performance as an informant was a potential source for testing his reliability as well as his credibility and was thus, in the terminology of sections 3 and 7 of the Criminal Procedure and Investigations Act 1996, as they then stood, material that might undermine the prosecution case and/or that might reasonably be expected to assist the defence. In summary, they submitted that Duzgun’s entire history as an informant should have been disclosed.

[18]On behalf of the respondent, Mr Clarke contended that the material examined by the prosecution when considering its disclosure obligations had shown no pattern of unreliability or of “stringing the authorities along”. And he distinguished between circumstances when authorities did not act on his information because it was considered to be of no assistance to them and those where they might not have acted on it because they regarded it as questionable or possibly untrue. As to the prosecution’s test for disclosure of material relating to Duzgun’s information to any intelligence agencies about other drug-dealing, he stressed the burden for the prosecution of searching all intelligence files over the years to see if he was mentioned in them as an informant and, if so, whether he had provided informant that was or might have been unreliable of untrue. He underlined the enormity of the disclosure exercise for which the applicants were contending, observing that, even if it were confined Duzgun’s informant activities giving rise to his prosecution and conviction in the 1997 matter, the documentary search would have extended back over six or more years.

[19]There is a short answer to the applicants’ complaint on this issue, derived in part from this Court’s own examination of extensive and highly sensitive documentation made available to it by the prosecution. But, we should first mention the dilemma faced by the prosecution and the Judge over this issue when it was raised before and at trial.

[20]Given the sharpness of the cut-throat defences should the matter proceed to joint trial as originally proposed, and the obvious sensitivity of the potentially disclosable material on both sides of the defence divide, the Judge had a difficult task in trying to hold the ring among the accused and as between them and the prosecution. However, as to the disclosure sought by the applicants about Duzgun’s record as an informant, such material as there might have been would be no more than a supplement to the valuable disclosure they already had about his claimed and failed “informant” defence in the 1997 drug-trafficking prosecution. They knew that, if he ran the same defence in the projected joint trial with them, not only would the prosecution challenge it with evidence from his NCIS handlers, but that, if he gave evidence, as he would probably have to do to make good his defence, they could put his 1997 defence and conviction to him. Any further disclosure of that sort relating to the same or other similar matters, if available, might strengthen the applicants’ attack on him as part of their defence, but it would be little more than icing on an already considerable cake. So whatever merit there may or may not be in the applicants’ complaint about the prosecution’s test for disclosure, it would not, in our view, have resulted in such prejudice to them as to render their trials unfair or their convictions unsafe.

[21]In the event and as we have indicated, through counsel, the applicants asked this Court to examine closely the undisclosed prosecution material made available to it. They invited examination, in particular, of all material available from any investigative or intelligence agency for which he may at some time have acted as an informant, and also to relevant transcripts of the 1997 trial and of all the ex parte public interest immunity hearings in this trial going to the issue. The Court has done that, considering in the process much documentary material, in addition to transcripts. In the Court’s ex parte public interest immunity hearing preceding the hearing of these applications it also received much detailed information from Mr Clarke as to the extent of the authorities’ disclosure enquiries and exercise, on the material made available to the Court and as to the absence of any other relevant material. In the result, as the Court indicated when it began to hear the applications, it was satisfied that, whatever the precise formulation and/or application of the test of disclosure applied by the prosecution, there was no further undisclosed material in relation to Duzgun that might have undermined the prosecution case or that might reasonably have been expected to assist their defence.

[22]In the circumstances, there is no reasonably arguable case for granting permission to appeal in respect of the applicants’ complaint of inadequate prosecution disclosure. (ii). Severance

[23]Each of the applicants submitted that the Judge, by ordering severance of trial as between them and Duzgun, deprived them of the opportunity to explore before the jury his unreliability and abuse of his role as an informant, in support of their case that they had become involved as innocent dupes. As is apparent from what we have already said, this complaint is closely bound up with that relating to disclosure. However, its thrust is slightly different. It is that notwithstanding what Duzgun, in a joint trial with them, might have alleged against them in advancing his “informant defence”, in separate trials they lost the benefit of prosecution evidence from Duzgun’s NCIS handlers contradicting that defence and they lost the probable opportunity, through counsel, of cross-examining him about it, and about the failure of his similar defence in the 1997 prosecution.

[24]Counsel for the applicants contrasted the outcome for Duzgun, who, when subsequently tried on his own and thereby free of danger from the jury learning of his similar and unsuccessful defence and his conviction in the 1997, was acquitted. As a result, all three applicants maintain that the Judge, by directing severance of trial, failed to ensure equality of arms between them on the one hand and Duzgun on the other, thereby prejudicing their defences and rendering their trials unfair and convictions unsafe.

[25]Mr Clarke submitted that, with the progress of prosecution secondary disclosure, it became plain that if the matter were to proceed as a joint trial of all the accused, as originally intended, it would lead to much more of a bloody cut-throat defence than most. Duzgun’s previous abuse of his informant’s role and his 1997 conviction for drug-trafficking would be put before the jury by one or other of his co-accused. On the other hand, Ebcin and Gencer had to face the prospect of his NCIS handlers’ contact sheets being put by the prosecution before the jury indicating what he had told them of their involvement in this offence. And he would also be able to make use against them of the proffered admission, which, in turn would have “contaminated” the defences of Ozturk and Aslam because of their association with Ebcin and Gencer at the material time.

[26]Mr Clarke explained that if the only cut-throat generating matter had been Duzgun’s previous conviction and the nature of his unsuccessful defence in it, a joint trial would have been manageable, but the subsequent discovery and disclosure of the information from another source about Ebcin and Gencer, leading to the proffered admission, which the prosecution felt obliged to make in the interest of Duzgun, made a joint trial impossible. Hence the prosecution change of mind as to joint trial and its application for severance.

[27]It is not a pre-requisite of a fair trial for each of a number of jointly indicted accused that there should be parity of defence advantage as between them, whether tried together or separately. The nature of the prosecution and/or defence cases and/or of the previous records of one or more the accused can make that impossible. Often, as here, the Judge, in deciding whether to direct a joint trial or separate trials of a number of jointly indicted accused, can only look for a compromise that will produce as fair a trial as possible for each accused in the circumstances. This experienced and highly competent Judge was faced with a dilemma to which, as our summary account of the interlocutory proceedings makes plain, there was no answer that could provide precise parity of position or advantage as between accused at such odds with each other in their defences. It is no surprise to the Court that he described the case as the most difficult he had ever had to conduct. In our view, he did the best any Judge could have done in the circumstances. There is no arguable basis for saying that the decision he took led to an unfair trial for any of the applicants. On the contrary, as we have already remarked, while the separate trials may have deprived Duzgun on the one hand and the applicants on the other of certain weapons against each other, they also had the advantage of seriously reducing the visibility of the dispute between them that would have been all too apparent in a joint trial of all of them. And, in all this, it should be remembered that the prosecution was a party to these proceedings too - a prosecution with strong and largely unchallenged evidence of observations of the applicants preparing for and participating in the hand-over of this very valuable consignment of heroin.

[28]It follows that, in our view, there is no reasonably arguable basis upon which this Court on appeal could say that, because of the Judge’s severance of trials, the conviction of any of the applicants is unsafe.

Special counsel

[29]As we have indicated, the Judge rejected the application of all the applicants for the appointment of a special counsel. He held, in the light of the European Court of Justice’s ruling in Jasper v UK, 30 EHRR 441, that he could secure fair trials for all without such assistance. At the time, the subsequent ruling of the Court in Edwards and Lewis v UK [2003] Crim. L.R. 891 seemingly gave some encouragement for such an application. But the matter has now been overtaken by the decision of the House of Lords in R v H

[2004] AC 134

, in particular in the observations of Lord Bingham of Cornhill (giving the opinion of the Committee), emphasising at paragraph 22 the exceptional circumstance necessary to justify such an order. Nevertheless, through counsel, Ebcin and Ozturk, pursued this complaint before the Court. They maintained that the Judge wrongly refused to appoint a special counsel to represent their interests on prosecution disclosure and to assist on the issue of severance.

[30]Given our views on the issues of disclosure and severance, the issue whether the Judge should have directed the appointment of a special counsel to assist the applicants and him on those matters falls away. But even if there had been a reasonably arguable basis for granting leave on either or both of those issues, we do not consider that that his decision against such appointment would have been vulnerable to appeal in the circumstances. It was primarily a matter for him, seized as he was of the facts and issues in the case, to determine whether its circumstances were such as to require in the interest of justice the appointment of special counsel. In our view, and as events proved, the Judge was entitled to take the view that there was no such need, having regard to his own meticulous oversight of the discovery process, the prosecution’s responses to that oversight and to his eventual decision to sever the trials. As to the last of those matters, the suggested need to provide the Judge with assistance on reaching a decision as to severance, it would, we believe, have been an inappropriate reason for the appointment of special counsel. Such a decision may be a consequence of decisions made in ex parte public interest immunity hearings as to disclosure, but it falls to be considered in an open hearing, following such disclosure, at which the accused are present, each with his own counsel to represent his interests.

[31]Accordingly, we also refuse permission to appeal on this proposed ground of appeal. (iv). Admission into evidence of acts and declarations of co-accused –

[32]Ebcin and Gencer maintain that the Judge, in the light of his severance of the trial, wrongly admitted into evidence acts and declarations of the co-accused, which would only have been admissible in the originally planned joint trial of all five accused, as to their alleged common purpose. In particular, and by way of example, there is criticism of the refusal of the Judge to accede to the applications in the trial of Ebcin and Gencer that he should exclude evidence of Customs officers of their observations of one or more of their co-accused when not in their company and who were to be tried separately from them. Although the prosecution put its case to the jury as one of joint enterprise between Ebcin and Gencer and all the other accused, counsel for those applicants maintained this criticism, relying on the principle that evidence of such matters is only admissible if, in addition to their being in the course and furtherance of the alleged unlawful common purpose, there is independent evidence of such purpose and of their involvement in it; see R v Governor of Pentonville Prison, ex p. Osman

(1990) 90 Cr App R 281

and R v Gray & Ors

(1995) 2 Cr App R 100

. They submitted that, in considering the case against them, there was no such independent evidence of an over-all common purpose of unlawful dealing in the consignment of heroin so as to implicate each of them in it. Evidence of observations of their co-accused when they were not with them or of telephone calls between others, could not, they submitted, link Ebcin or Gencer with the offence. Similar arguments, mutatis mutandis, were relied upon by Ozturk.

[33]However, counsel for Ebcin and Gencer acknowledged in their submissions to the Court that, in the circumstances of this case and given the nature of the observation evidence, this issue could only go to the question of fairness, not admissibility, of the evidence. And they agreed that there no suggestion of unfairness in the admission of the officers’ evidence of the movements of and telephone traffic between the various accused leading up to and including the hand-over of the heroin.

[34]Accordingly, there is no future, by way of appeal, for this complaint.

(v) The Judge’s direction as to lies

[35]Gencer complains that the Judge, in the course of his summing-up, gave a Lucas (R v Lucas

[1981] QB 720

; 73 Cr App R 159, CA) direction to the jury in respect of answers given by him in interview when such a direction was inappropriate and potentially prejudicial to his case. Gencer accepted in interview the Customs officers’ evidence of his conduct leading up to and on the hand-over of the drugs, but he denied any knowledge of the heroin. He held to that account in evidence. The prosecution case was simply that that general denial was untrue. It did not advance any evidence of collateral lies in support of that general contention. The Judge nevertheless gave a Lucas direction in relation to Gencer’s account in interview, though he did not repeat it in relation to Gencer’s repetition of it in evidence.

[36]Mr Clarke did not seek to justify the direction, but submitted that, given the strength of the observation evidence against Gencer, it cannot have led to an unfair trial or to making his conviction unsafe.

[37]In our view, it was not appropriate for the Judge to give a Lucas direction in the circumstances, since there was no proven or admitted lie on a separate or collateral issue not directly relevant to guilt, simply a suggestion that his denial of guilty knowledge was a lie, the very issue that the jury had to decide. However, in the light of the nature and strength of the officers’ evidence of their observation of his participation in this criminal enterprise, we agree with Mr Clarke that it could not have rendered his conviction unsafe.

[38]Accordingly, we also refuse permission to appeal under this head of complaint. (vi). The Judge’s refusal to permit Ozturk to rely on Duzgun’s acquittal in the 2003 trial

[39]At the trial of Ozturk, his counsel sought to put into evidence the acquittal on this charge of Duzgun. The Judge refused to allow him to do that, ruling that the jury’s verdict of not guilty in Duzguns’s trial was no more than the opinion of the jury in his trial. Through counsel, Ozturk suggests that the Judge, in so ruling, erred in law. In addition, he complains that Mr Clarke was permitted to conduct the prosecution case on the basis that Duzgun was a party to the alleged offence.

[40]There is no substance in these complaints. It is well established by the authorities discussed in paragraph 4-331 of the current edition of Archbold and most recently applied by this Court in R v Terry, The Times, December 28, 2004, that, in the absence of some exceptional feature, such as the effect of an acquittal on the credibility of a confession or the evidence of a prosecution witness, evidence of the outcome of an earlier trial arising out of the same events is irrelevant for the reason given by the Judge. (vii). Prosecuting counsel’s revelation in the trial of Ozturk that the jury in the trial of Duzgun had acquitted him in ignorance of his 1997 conviction

[41]Ozturk, during his cross-examination by Mr Clarke, twice told the jury of Duzgun’s acquittal. On the second occasion Mr Clarke responded that the jury in Duzgun’s trial had not known of his previous conviction for drug trafficking or that he was still serving a sentence of imprisonment for that offence, having been recalled on licence. It was submitted on behalf of Ozturk that the Judge should have intervened and discharged the jury, because Mr Clarke should not have said that in the presence of the jury since the effect of it was to suggest that Duzgun was guilty of this offence and that so was Ozturk by association.

[42]Mr Clarke, by way of explanation rather than justification, comments that Ozturk provoked his observation by twice mentioning Duzgun’s acquittal when he knew that he should not mention it, and knowing of his earlier conviction in 1997 conviction for drug-trafficking.

[43]In our view, there can be no question of Ozturk’s conviction having been rendered unsafe as a result of such an exchange in the presence of the jury. The prosecution case and evidence against him were particularly powerful. It was into his vehicle that the valuable consignment of heroin was transferred. He, it was, who fled in the vehicle as soon as he became aware of the Customs officers moving in on him and his co-accused, only to abandon the vehicle and its load a short distance away and then disappear for two months. At his trial, he had been told that he should not attempt to rely upon Duzgun’s acquittal before the jury as a means of supporting his own case, but persisted in doing so under cross-examination in the witness box. Mr Clarke’s response in the presence of the jury was perhaps unwise, but understandable. It is not, however, the stuff on which to brand Ozturk’s conviction as unsafe.

[44]Accordingly, we refuse the application to appeal against conviction on this proposed ground along with all the others. _____________

Ebcin & Ors v R [2005] EWCA Crim 2006

(i) Disclosure

Special counsel

(v) The Judge’s direction as to lies

Cited in 2 later judgments