Nawaz, R. v [2007] EWCA Crim 307

Case No 2005/04332/C5Case No 2005/04803/C5[2007] EWCA Crim 307
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 18 January 2007
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE HOOPER
MR JUSTICE GIBBS
and
MR JUSTICE RODERICK EVANS
R E G I N A
- v -
SHAH NAWAZ
KHALID LATIF
MOHAMMED KHALID SHAHZAD
MOHAMMED OSMAN
GHULAM RASOOL
Computer Aided Transcription by
Wordwave International Ltd (a Merrill Communications Company)
190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)
MISS R BRANDER appeared on behalf of SHAH NAWAZ and MOHAMMED OSMAN
MR D FRIEDMAN appeared on behalf of KHALID LATIF, MOHAMMED KHALID SHAZHAD and GHULAM RASOOL
MR A BIRD and MR J ASHLEY-NORMAN appeared on behalf of THE CROWN
J U D G M E N T
Between
NawazDefendantRCrown
[1]In all of these cases the respondent, the Revenue and Customs Prosecutions Office, has decided, rightly in our view, not to resist the appeals. Before giving more detailed reasons we would like to record the thanks of the court to Mr Ashley-Norman and Mr Bird, who are instructed by the Revenue and Customs Prosecutions Office, and to those from that office who have assisted the preparation of these appeals. We would also like to give our thanks to Miss Brander and Mr Friedman, and to Osmani Solicitors. But for the diligent and sensible way in which these appeals have been approached, this court would have been left with a massive task of trying to untangle what has occurred.[2]The judgment that we are about to give takes the form in large measure of various agreed notes which have been prepared for us today. We have taken that agreed note, made some minor and usually only stylistic corrections to it to reflect that it is a judgment rather than a note. For the reasons we now set out all the appeals are allowed and the convictions quashed.

R v Mohammed Osman

[3]On 19 March 1993, at the Inner London Crown Court, before His Honour Judge Prendergast and a jury, Mohammed Osman was convicted of conspiracy to evade the prohibition upon importation of a controlled drug of Class A. He was sentenced to ten years' imprisonment. He appeals against his conviction following a reference under section 9 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission, the reference being dated 5 September 2005.[4]The drug concerned was 10kgs of heroin, half of which was at 50% and half at 25% purity. It was in fact imported from Pakistan by a Customs Officer, as part of an international controlled delivery operation from Pakistan. The operation was given the name "Operation Nordic".[5]Co-defendants Mohammed Saddique and Asher Hayat Khan were also found guilty.

The Agreed Facts

[6]The case involved a participating informant called Asif. He approached the British drug liaison officers ("DLOs") on 3 July 1991, having earlier been referred to them by the German DLOs. It was not until 31 July 1991 that he agreed to comply with the DLOs' terms for a controlled delivery.[7]Permission was obtained from the Pakistani authorities and the drugs were handed over by Asif to the DLOs in two tranches on 15 and 19 August 1991. They were imported into the United Kingdom by an officer on 30 August 1991.[8]It was not until 24 March 1992 that Asif came to the United Kingdom. In the meantime there were, according to Asif, several changes of personnel within the supply chain and a number of different United Kingdom buyers were advanced, before the ultimate recipient was identified. This was the appellant's co-defendant Saddique, whom Asif claimed to have met in Pakistan in January 1992.[9]Once in the United Kingdom Asif was installed in an hotel in London. On 26 March Saddique and the appellant came to the hotel. They spoke about "carpets" which Asif said in evidence was the code word for the drugs. Ultimately, on 28 March 1992 Asif delivered two holdalls containing the dummied-up drugs to a car containing the appellant (who was the driver) and Saddique. At that point they were arrested.[10]In interview the appellant generally exercised his right to make no comment. He denied being involved in drugs but asserted no positive case as to why he had come to London from Birmingham or as to what he was doing with Saddique and Asif.

The Trial

[11]At the start of the trial submissions were made in support of applications for disclosure of material suggesting Asif's involvement in other operations, on the basis that this would assist the defence of set-up. In reliance upon a newspaper article the defence asserted that a group of informants existed in Pakistan who were manipulating the system for their own rewards. The defence at the same time applied for disclosure of Asif's true identity.[12]As a result of these applications the judge was shown a document described as the original informant log and was enabled to compare it with the edited version that had been provided to the defence. The Crown is no longer able to locate a copy of the original informant file and it is therefore not possible to establish precisely what material was shown to the judge. However, a note of the judge's ruling records the following:
"In light of the answers given to my questions and result of scrutiny of original am satisfied passages that are blanked out are irrelevant to this trial or apply to identity of Asif -- apart from line 8 of page 15 that will be disclosed."
In a supplementary ruling the judge said: 13. "This may change during trial as case unfolds; at this stage take line as before."[13]It is clear that the defence were not made aware of the two other controlled deliveries proposed by Asif between the time of the arrests and the time of trial. This is significant in light of the evidence Asif subsequently gave at trial.[14]The roles of the defendants were put by the Crown as follows: Saddique was the United Kingdom principal, based in Birmingham, the intended buyer of the drugs. Asher Hayat Khan (aka Nami) was an intermediary, based in London, between Saddique and those in Pakistan. The appellant Osman (also referred to as Uzman in some of the papers) was an associate of Saddique and took part in telephone calls and travelled from Birmingham to London to meet Asif.[15]Asif gave evidence at the trial. There is a transcript of part of his cross-examination, but no complete transcript of his evidence. Thus reliance is place in part upon the judge's summing-up in order to establish what evidence was given. One element of Asif's evidence was summed up by

the judge as follows:

"Other than this case I have had no connection with drugs. I am sure of this."
[16]The high point of direct evidence of knowledge of drugs came when Asif offered Saddique a sample, at which Saddique kicked him away. This activity was recorded on video and, notably for this appeal, took place between Asif and Saddique at a time when the appellant Osman was out of the hotel room. Precisely what happened in the hotel room was clearly the subject of challenge at trial, and of particular interest to the jury. Osman was present in the car when the two holdalls were handed over by Asif, but this occurred only moments before the arrests.[17]The defendants did not give evidence. Their general defence was lack of knowledge of the heroin and that Asif was setting them up for personal gain so as dishonestly to obtain a reward.[18]The appellant's particular defence was that he had gone along with Saddique, had heard the reference to "carpets" and was at all times under the belief that carpets were the commodity that was being imported. His defence was therefore one of set-up in two respects:(a) that he genuinely believed he was dealing in carpets, and(b) that Asif had an improper motive to find an unwitting recipient for heroin.[19]As part of their support for that substantive defence, it was the defence case at trial, put firmly to Asif and denied by him, that Asif was manipulating the reward system to his own ends: that he needed a "result" in order to get his reward and so he (perhaps with the connivance of the suppliers) had needed to contrive the involvement of these men as unwitting recipients for the drugs when no other recipient was forthcoming.

The Grounds of Appeal

[20]The grounds of appeal set out particular respects in which it is said that the proceedings were and are an abuse of process. The principal complaints are:(1) that Asif payed a major and active role in the commission of the offence, indicating that this was not an infiltration of a genuine, pre-existing conspiracy to import and the DLOs were aware of the factors that showed this to be the case; and(2) that there was material non-disclosure relating to this issue at trial.

The Crown's Position

[21]The Crown do not accept that the appellant's case involved an abuse of process.[22]However, the Crown do accept that Asif gave false evidence in the witness box when he said that he had no other involvement with drugs. This was untrue because, unknown to the defence, he had in fact proposed two other controlled deliveries between his return from London in March 1992 and the trial in February 1993. Entries appear for them in the controlled deliveries book on 19.5.92 and 4.1.93.[23]The Crown maintain that it is less clear whether Her Majesty's Customs and Excise officers knew that Asif had given this false evidence at the time. The Crown maintain that neither of the DLOs (nor for that matter the case officer Mr Donald) had been present in court when Asif gave his evidence.[24]Asif was "de-briefed" when he returned to Pakistan after giving evidence. As a result of that a DLO (it is not clear whether it was Bragg or Ansell) sent a telex 28/93 back to London on 9 March 1993. This telex referred to Asif having given "unreliable evidence".[25]The Crown contends that it has not been possible to establish exactly what the DLO was referring to in this phrase. There were certainly some inconsistencies in Asif's evidence, which had been exploited in cross-examination. Furthermore Asif had had a "wobble" or reluctance to continue, over a weekend, in the middle of giving evidence.[26]In the absence of any recollection on the part of the DLOs as to precisely what this "unreliable evidence" was, the Crown has had to accept the possibility that the telex referred, at least in part, to the evidence from Asif that he had had no other connection with drugs.[27]In any event, when Asif said this, it should have triggered the Crown's obligation to review the disclosure that had been made, and at the very least to draw the judge's attention to the fact that the Crown was in possession of material that showed this answer to be false. The Crown has not been able to establish why this did not occur. It has been able to establish that the DLOs brought the fact of the "unreliable evidence" (whatever that was) to the attention of Her Majesty's Customs and Excise in London, where it was considered at high level, but in relation to aborting the latest controlled delivery proposal rather than in the context of the ongoing trial.[28]When the judge had been shown an unredacted version of Asif's informant log, this may, as with other contemporaneous informant logs, have simply cross-referred to notebooks and telexes without itself containing any detail. It is not clear that the judge had been shown the content of any notebooks which post-dated March 1992. The handwritten notes of the submissions made on 18 February 1993 suggest that counsel for the Crown said that there were entries after 24 March 1992 but that they "do not have anything to do with this case".[29]The judge said that he would look at the original log. The note states that the judge rose "to read through both unedited and edited log". Following his ruling approving the redactions, defence counsel observed that it was "obvious Asif [was a] professional informant by virtue of blanked parts and pages 13 to 15 involve later dates involving other investigations". There is no note that the Crown replied to this proposition, and the judge's ruling stood.[30]The Crown has not been able precisely to reconstruct the documents shown to the judge. For the redacted log to have contained 15 pages then it must have included a complete page after page 14 (which contained the last entry referring to Operation Nordic in June 1992). Defence counsel's observations were therefore correct, but in accordance with normal practice they were neither confirmed nor denied.[31]At that stage prosecuting counsel's observation that the post-arrest material was irrelevant may well have been correct. Certainly the judge seemed to agree. However, this changed when Asif said something in evidence which the post-arrest material would contradict.[32]Thus a combination of non-disclosure by the Crown and false evidence by the witness allowed the jury to have a false impression of Asif. They were then reminded of the evidence of the judge in the summing-up.[33]Admissions to this effect were made in the Crown's "Umbrella Document" dated 29 September 2006. The Crown conceded that this could have affected the jury's verdict, but maintained that the new material went primarily to credibility and that other evidence meant that the guilty verdict was correct.[34]This court is required under the law as it currently stands to consider what impact the undisclosed material might have had on the jury's verdict had it been available to them at trial. In R v Pendleton [2002] 1 Cr App R 34 the House of Lords set out the test as follows:
".... the test to be applied was whether the conviction was safe, not whether the accused was guilty; and under section 2(1) of the Criminal Appeal Act 1968 the question whether the conviction was unsafe was a matter for the judgment of the Court of Appeal, no particular thought process being required. Further, that test should be applied from the viewpoint of the effect of the fresh evidence upon the minds of the members of the court, and not on the effect of the minds of the jury. The court was not the primary decision-maker and had an imperfect and incomplete understanding of the full process which had led the jury to convict. However, where fresh evidence was adduced it would usually be appropriate for the court to test its provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict; if so then the conviction should be considered as unsafe."
[35]Considering the material objectively, the Crown now concedes that it would be unable to persuade the court that the new material might not reasonably have affected the jury's decision to convict the appellant. Therefore, the Crown does not propose to resist the appeal.[36]Both parties agree that the above concessions made by the Crown show the appellant's conviction to be unsafe and are content that the appeal be allowed on this basis. We agree.[37]However, the appellant asks that it be recorded that he expressly maintains that the pro-active role of the participating informant in his case and the systemic non-disclosure amount to an abuse of process. This is denied by the Crown.[38]Both parties accept that in view of the detailed analysis of the controlled delivery system already conducted in R v Choudhery & Others [2005] EWCA Crim 1788, and taking account of the observations in R v McIlkenny (1991) 93 Cr App R 287 at 310, it is not necessary for the court to adjudicate on these further issues once the lack of safety, as conceded, has been established. The approach taken in Choudhery, for the reasons wholly justified in that appeal, was exceptional. We, as requested, record in our judgment(1) that there were other grounds of appeal and(2) that these have not been adjudicated upon. In the light of McIlkenny, it is not necessary in the context of this appeal for the appellant's additional grounds to be considered.[39]For these reasons the appeal is allowed and the conviction quashed.

R v Mohammed Khalid shahzad and Mohammed Latif

[40]We turn to the appeals of Mohammed Khalid Shahzad and Mohammed Latif. "Operation November Skewer" was a controlled delivery of 19.8kgs of heroin from Pakistan, involving a participating informant named Hanif Honi. According to contemporary contact sheet records, Hanif was introduced to the relevant DLO, Malcolm Bragg, by officers from the United States of America Drugs Enforcement Agency, based in Pakistan, on 19 December 1989. The case which subsequently developed resulted in the conviction of Shahzad and Latif on 8 March 1991 before His Honour Judge Laurie and a jury. The convictions were subsequently upheld both in the Court of Appeal ([1995] 1 Cr App R 270) and in the House of Lords ([1996] 1 WLR 270). Shahzad and Latif made an application to the European Court of Human Rights. The Commission declared their application to be inadmissible (App No 24225/96).[41]This case has now been referred back to the Court of Appeal by the Criminal cases Review Commission. The appellants have submitted detailed grounds of appeal in which they sought to challenge the safety of the verdict of the jury and raised the question of abuse of process by reference to the decision of the Court of Appeal in Choudhery and Others. The abuse asserted arose out of material misrepresentations that were said to have been made by witnesses and officers of Customs and Excise. Closely allied in the grounds of appeal to the alleged abuse of process was the potential issue of entrapment.[42]In a letter dated 17 November 2006, the Crown indicated that it would not resist this appeal. the basis of this decision was that the non-disclosure of material within the possession of the Crown at the time meant that the verdict of the jury could no longer be considered safe. The appellants for their part recognised in the face of this concession that they would not seek to persuade the court to adjudicate upon the other abuse-related grounds of appeal. Such an adjudication was sought and made in Choudhery and Others after the Crown indicated that they would not contest those appeals. That approach was adopted as an exceptional resort because of the public interest in determining certain matters that went beyond the basis upon which the Crown were prepared to concede those appeals. Here the appellants recognise that many of the systemic issues have already been dealt with in Choudhery. In the circumstances they accept that it would not be justifiable for the court and the parties to expend time in dealing with other grounds when the conviction was accepted to be unsafe. They have asked the court to make it clear in any judgment that(1) there were other grounds and(2) the fact that those other grounds were not adjudicated upon should not be taken to be a judgment on their merit. We do so.

Brief Facts -- The Prosecution Case

[43]Hanif Honi was introduced to Malcolm Bragg, then DLO Islamabad by officers from the United States Drugs Enforcement Agency. Bragg's notes record this meeting as having taken place on 19 December 1989. Bragg was the first officer appointed to the newly created post of DLO Islamabad. Hanif told Bragg first of a planned importation of heroin involving a man named Malik Akhtar. Later in February 1990, Hanif reported to Bragg that he had met two men named Adnan and Mehboob, and that they wished to effect an importation of heroin into the United Kingdom. In due course Adnan and Mehboob introduced Hanif to Shahzad. Shahzad subsequently arranged to meet Hanif without Adnan and Mehboob, and asked Hanif to act as a courier of drugs in an importation independent of Adnan and Mehboob.[44]On 1 April 1990 Hanif received 20kgs of heroin from Shahzad, who delivered them to his home in the early hours of that morning. Hanif was unable to contact Bragg, who was on leave, and called a Pakistani Customs officer named Yousaf Khan. Yousaf Khan collected the drugs from Hanif, and later that morning, contacted Gill Howard, the DEA officer who had introduced Hanif to Bragg. Howard collected the drugs from Yousaf Khan, and retained them until 10 April when they were collected by Bragg.[45]Hanif later assisted Shahzad to obtain a visa for a trip to London, and eventually Hanif left London on 7 May 1990. Hanif was installed by the Customs at the Kensington Close Hotel in London, from where he made a number of telephone calls to Pakistan which were recorded. He spoke with Shahzad and other persons as well. Amongst the persons with whom he spoke was a man named Malik Naji. This person was said by Hanif to be related to Shahzad. During the trial, Hanif was to say that he first met Naji after he had received the drugs on 1 April. Shahzad disputed this and said that he, Shahzad, had met Naji playing cards some two years earlier, and it was through Naji that Shahzad had met Hanif.[46]On 19 May 1990 Shahzad travelled to London and made his way to the hotel. He spent a considerable period in the hotel room with Hanif. Important and incriminating conversations were recorded. Latif arrived on the following day. Again important conversations were recorded.[47]An undercover Customs officer delivered a bag containing the dummied-up drugs to the hotel room. Latif followed the Customs officer out of the room and downstairs. He was arrested. Shahzad was arrested in the hotel room. Both Shahzad and Latif lied in their subsequent interviews in respect of their movements. Both said they believed that they were involved in the importation of gold. The defence was therefore one of set-up.[48]They were tried in February and March 1991 and both were convicted on the unanimous verdict of the jury. Shahzad was sentenced to 20 years' imprisonment, and Latif to 16 years. As indicated above, their convictions were upheld in the Court of Appeal and the House of Lords, and an application to the European Court of Human Rights was found to be manifestly ill-founded.

Hanif's Lie

[49]Pursuant to the reference and this appeal, the Crown has subjected this case to the closest scrutiny. As a result of that scrutiny, material has been uncovered which suggests that Hanif lied about the circumstances in which he met Naji. Whereas Hanif maintained that he first met Naji after having met Shahzad, there is material, the effect of which is now appreciated, which suggests that this was not true and that Hanif had met Naji at a rather earlier date, and before he, Hanif, had met Shahzad.[50]The newly appreciated material relates to telephone numbers. Amongst the monitored calls placed by Hanif from the Kensington Close Hotel were calls to a Pakistani number 010-9242 30 4823. This number was described in Hanif's witness statement as being "for a person who is in Pakistan whose name is Akhtar Sultan -- and was given to make contact with Mohammed Khalid Shazad -- Papa".[51]On this number Hanif spoke to various persons apparently able to convey messages to Naji, and eventually on 17 May 1990 Hanif is recorded as having spoken to 'Malik Naji'. Naji assured Hanif that Shahzad was coming to London. It appears from the cross-examination that Malik Naji was another name for Akhtar Sultan.[52]Contrary to the impression given by Hanif in his witness statement, there is material to suggest that he was in fact in possession of the 4823 telephone number long before February 1990, when on his account he met Shahzad.[53]Undisclosed at trial, but now available are documents entitled 'Reports of Information' from the DEA. They record contact between Hanif (known to the DEA by a different codename) and DEA officers in Islamabad. In those reports Hanif is recorded as having conveyed information relating to a prolific heroin smuggler named Malik Akhtar. The DEA officers were provided by Hanif with a Lahore telephone number for Malik Akhtar, 30 4823, the same telephone number later described by Hanif as having been given to him as a contact number for Shahzad in February 1990. The meetings between Hanif and the DEA were in November 1989.[54]The 4823 telephone number is carried over into Bragg's notebook record of his first meeting with Hanif, and the contact sheet record, and the telex relaying the information back to London.[55]This appears to make it plain that Hanif lied about the provision to him of the telephone number. It cannot have been supplied to him in February 1990 as a contact point for Shahzad. Hanif had already supplied the same number to the DEA in November 1989. The clear inference is that he knew Malik Naji (aka Akhtar Sultan, aka Malik Akhtar) before February 1990, when on his case he met Shahzad.[56]At the very least, the failure to disclose the notebook, contact sheet and telex deprived Shahzad of the opportunity to deploy Hanif's premature possession of the central telephone number in the cross-examination of Hanif. Such cross-examination could have supported the defence case that Hanif was lying about the circumstances in which he met Naji, which in turn would have undermined Hanif's account of the circumstances in which he met Shahzad.[57]Those circumstances were vital. If Hanif were revealed to have lied about his introduction to Shahzad, it would undermine the totality of his evidence. In particular, events described by Lord Steyn as "undeniable facts" could no longer be confidently designated as such. Chief amongst these was the suggestion that Shahzad had requested a meeting with Hanif independently of Adnan and Mehboob, an apparently compelling counter to any defence suggestion of set-up.[58]Where a defendant alleges set-up, the circumstances in which the defendant and the participating informant come to meet are clearly extremely important, and lying about those circumstances raises correspondingly important issues about the credibility of the participating informant.[59]The newly disclosed material is capable of supporting the inference that Hanif lied about those circumstances in this case. Therefore the Crown is constrained to accept that this failure of disclosure deprived the defence of potentially significant material upon which to cross-examine Hanif.[60]It follows that, irrespective of other evidence suggesting a strong case against the appellants, the newly disclosed material could have caused the jury to come to different verdicts to the guilty verdicts which were reached. The inability of the Crown to exclude this possibility obliges the Crown to decline to resist this appeal. We agree. The appeals are allowed and the verdicts quashed.

R v Shah Nawaz

[61]We turn to the appeal of Shah Nawaz. Shah Nawaz was convicted at Birmingham Crown Court before His Honour Judge Harris QC and a jury on 26 September 1994. He was sentenced to nine years' imprisonment. He appeals against his conviction following a reference under section 9 of the Criminal Appeal Act 1995 by the Criminal Cases Review Commission dated 8 August 2005.[62]He was convicted of an offence of conspiracy to evade the prohibition upon importation of a controlled drug of Class A. The drug concerned was 2kgs of heroin at 25% purity. It was in fact imported from Pakistan. The operation was given the name "Operation Pair".[63]A co-defendant Mohammed Yousef Rafiq was also found guilty. A third defendant Ashaiq was acquitted.

Agreed Facts

[64]The operation leading to the appellant's conviction began on 10 June 1993 when a DLO in Pakistan, Malcolm Bragg, was approached by a man named Roshan. Roshan was a Confidential Informant ("CI") and a prolific introducer of other confidential informants to the DLOs. Roshan informed the DLO that he had been asked to take 2kgs of heroin to a man in the United Kingdom called Yousaf. Roshan gave Mr Bragg a piece of paper with a United Kingdom telephone number on it and said that he would provide further details to the DLO in due course.[65]On 15 June 1993, Roshan's son, Kiramat, visited DLO Bragg and told him that Roshan was too busy to proceed with this case and so had suggested to the supplier that Kiramat act as his courier instead. Kiramat was accorded participating informant status, and the rules for controlled deliveries were explained to him by the DLO. His account was that he had been approached by Haji Mehboob Khan and asked to take 2kgs of heroin to "Yousuf" in the United Kingdom. He said that Mehboob was a friend of his father.[66]Kiramat explained to the DLO that he had been provided by Mehboob with a telephone number for "Yousuf" and that he had already rung and spoken to someone answering as Yousef. The DLO told Kiramat that this should not have happened as calls with the recipient should be recorded.[67]Kiramat was subsequently provided with a mobile telephone number which turned out to be the number of the appellant. He called that number and spoke to the appellant. The conversation was recorded and Kiramat referred to "two kilos" and "brown, not white". The appellant told Kiramat not to speak openly on the phone.[68]Permission to conduct a controlled delivery was obtained from the Pakistani authorities and on 8 July 1993 Kiramat collected the drugs from the supplier and handed them over to the DLO. The collection of the drugs by Kiramat was not witnessed by the DLO.[69]Permission to export the drugs was obtained from the Pakistani authorities and on 27 July 1993 they were imported into the United Kingdom by an officer.[70]On 29 July 1993 Kiramat travelled to the United Kingdom and was installed in a house in Birmingham. There were further telephone calls and on 31 July 1993 the appellant came to the house with Rafiq.[71]The conversation between him and Kiramat was recorded; they spoke about Mehboob and the appellant said that he had stayed with Mehboob but had only spoken to Mehboob about "business" for "two minutes in [his] whole life". The appellant also spoke about drugs and his (the appellant's) brother being involved in the delivery of drugs. The appellant handed over £200, and he was provided with a sample of approximately 3.2 grams of heroin. He was arrested in possession of the sample as he left the house.[72]In interview the appellant said that he was a heroin user and so, when Kiramat had mentioned the drug, he thought he would bluff along with the conversation and see if he could get a smoke. He denied asking anyone to smuggle heroin from Pakistan for him.

The Trial

[73]The case came on for trial in September 1994. An application was made at trial firstly to stay the proceedings and secondly to exclude Kiramat's evidence on the basis that Kiramat and/or Mehboob had acted as agents provocateur. Those submissions failed.[74]Prior to trial the appellant's solicitors had sought information from the prosecution in relation to both Kiramat and Roshan. Some material was clearly disclosed, but it is also clear that other material, notably Roshan's and Kiramat's involvement in other controlled deliveries was not disclosed. Her Majesty's Customs and Excise solicitors wrote to the appellant's solicitors stating that Kiramat had not ever been involved in a similar role with police or Customs. This was not strictly correct. Kiramat had indeed not been involved in any earlier controlled deliveries, and had not given evidence before. But he had been involved with deliveries which post-dated the appellants's arrest but preceded his trial.[75]Ex parte PII hearings were held before the judge on 22 April 1994 and 15 July 1994, and a schedule and paginated bundle exists showing what documents were made available to him. No transcript of the hearing has been located, but notes exist, and it seems that the judge was shown material relating to this controlled delivery, but only limited material relating to Roshan's earlier history. In relation to Kiramat the paginated bundle shows that he was provided with a complete copy of the Informant File (up to June 1994) but not the notebooks or telexes relating to other operations. The undisclosed material would have shown Kiramat's post-arrest involvement in other controlled deliveries. The Judge ordered some limited disclosure in redacted form. Roshan was made available for interview by Pakistani agents of the appellant's solicitors, but the interview never in fact took place.[76]Kiramat gave evidence and was cross-examined. During his evidence on 14 September 1994 Kiramat stated (according to a handwritten note):(i) that his father had been informing to Customs for five to six years, but that he does not make any money from informing, "he does it out of principle";(ii) that it was not well known that his father works for Customs;(iii) that he (Kiramat) was just acting to "help the law" and had not known whether he would receive any reward or not.[77]This testimony must be viewed in light of the following material: (i) the report of Tasmina Ahsan dated June 1995, following "Operation Zulu Crescent". This report records the following allegations about Roshan:
"[he] takes payment of 50,000 rupees on introducing new confidential informants"; "[he] is known in the local community for this and the fact that he is a reputed confidential informant with most of the consulates"; "the locals appear to regard him as a respected man and a passport to western countries for a payment of money which ranges from 25,000 to 50,000 rupees"
. The report concludes:
"It appears that this is a violation of the confidential informant/participating informant arrangement where Khan is abusing his role and position as a confidential informant for his own personal financial gain and control over the locals"; (ii) the report of Richard Lowe (undated, but clearly after May 1995) along similar lines. This concludes: "
It would appear [Roshan's] introduction should be treated with caution. [The] account of the fee for introduction was believable, giving the confidential informant an incentive to mislead potential couriers and the DLOs alike"; (iii) a letter from DLO Barker to Immigration Section dated 20 June 1995, describing Roshan as "acting as an agent and introducing knew informants". The letter states:
"I have no doubt that he expects a percentage of any reward as payment for his services".

(v) a telex dated 2 October 1989 from DLO Bragg stating: "

The Dutch DLO has done cases in the past with [Roshan], but can no longer do controlled deliveries because of legal problems in Holland. He suspects CI purchases the heroin himself and possibly sets up the recipient". (vi) the telex dated 3 December 1990 from DLO Bragg proposing a controlled delivery to Ghana, in which he states that if Her Majesty's Customs and Excise do not run this as a controlled delivery, Roshan may well go ahead and supply the heroin in any event. (vii) the notebook entries of DLO Ansell in January/ February 1994 recording Roshan, with Kiramat, seeking to blackmail the DLOs that if they did not facilitate a visa for Kiramat's friend to accompany him to the United Kingdom, Kiramat would refuse to give evidence at the appellant's trial.[78]The above is a selection of the material calling into question Roshan's integrity. Clearly not all of it predates the appellant's trial. The Crown submits that it cannot be criticised for not disclosing material that was not in existence at the time. This is, of course, correct but the appellant does not accept that the conclusions expressed in the later documents were not already apparent to the DLOs by the time of his trial. It is the appellant's contention that much of the evidence underpinning these conclusions, for example, Roshan's prolific role as an introducer of other informants, was already well established by the time of the appellant's case. Subject to the views of the court, the parties do not consider it to be essential to the disposal of this appeal for the court to resolve this issue. We agree.[79]In the present context, it suffices to say that the material, as it is now known, strongly suggests that the true picture of Roshan's activities was different to the impression given by Kiramat. The Crown contend that it cannot be known whether Kiramat knew the full extent of what his father was up to. This is not accepted by the appellant.[80]The appellant gave evidence, and admitted having met Mehboob Khan, having given him Rafiq's number and having told him to ask for "Yousaf". He denied having agreed to buy drugs from him and said that he had later been told that Mehboob was a bad person who set people up. The gist of his defence was that he was the unwitting victim of an unscrupulous attempt to dump unwanted heroin.

The Summing-up

[81]In summing-up the judge warned the jury not to let the evidence be obscured by "some of the flights of fancy that had been put before them". In relation to the DLOs and participating informants he described a war being waged in relation to drug trafficking from Pakistan, and of Kiramat said, "one possible view that you might have in mind is that he is in fact a very brave man doing what he can to help those exposing those criminals who export drugs from his country to ours".

The Appeal

[82]The principal ground of appeal is that a false picture of Roshan and Kiramat was presented to the court and the defence. Neither the defence nor (as far as can be established) the judge knew of the concerns about Roshan expressed in the material already referred to, or that in August 1993, after the appellant's arrest but before his trial, Kiramat had sought to become engaged in another controlled delivery which had been rejected by the DLOs, because it was proposed, by Roshan and Kiramat, that 20kgs of heroin should be released to the United Kingdom recipient before any arrests could be made.

The Crown's Response

[83]The Crown do not accept that the matters complained of in the grounds of appeal mean that the proceedings were an abuse of process. The Crown do not accept that the appellant was in fact not guilty.[84]It is clear that the fact that Roshan was an informant had been disclosed to the defence and to the judge. It is, however, equally clear that they had not been provided with the full and complete picture.[85]A view had been taken by the Crown as to the scope of disclosure that was required, and material was only disclosed if it related to the operation in question, rather than in relation to the broader picture and history of the confidential informant and participating informant involved. With hindsight, and in particular with the overall knowledge of Pakistani controlled deliveries that is now available, this approach cannot be justified.[86]The defence was one of "set-up" and material relating to the character of Roshan and Kiramat and to other controlled deliveries in which they were involved may have supported that defence. It would also have called into question the veracity of Kiramat's account of his father's activities.[87]If the judge had been provided with the full picture then he might well not have summed up the character and possible motives of Kiramat in the glowing terms in which he did.[88]The court required under the law as it currently stands to consider what impact the undisclosed material might have had on the jury's verdict had it been available to them at trial: see Pendleton.[89]Considering the material objectively, the Crown concedes that it would be unable to persuade the court that the new material relating to Roshan and Kiramat might not reasonably have affected the jury's decision to convict the appellant. Therefore, the Crown does not propose to resist this appeal.

Points of Agreement/Disagreement

[90]Both parties agree that the above concessions made by the Crown show the appellant's conviction to be unsafe and are content that the appeal be allowed on this basis. We agree.[91]However, the appellant would ask that it be recorded that he expressly maintains that the pro-active role of the participating informant in his case and the systemic non-disclosure amount to an abuse of process. This is denied by the Crown.[92]Both parties accept that in view of the detailed analysis of the controlled delivery system already conducted in R v Choudhery & Others [2005] EWCA Crim 1788, and taking account of the observations in R v McIlkenny (1991) 93 Cr App R 287 at 310, it is not necessary for the court to adjudicate on these further issues once the lack of safety, as conceded, has been established. The approach taken in Choudhery, for the reasons wholly justified in that appeal, was exceptional. We, as requested, record in our judgment(1) that there were other grounds of appeal and(2) that these have not been adjudicated upon. In the light of McIlkenny, it is not necessary in the context of this appeal for the appellant's additional grounds to be considered.[93]For these reasons the appeal is allowed and the convictions quashed.

R v Ghulam Rasool

[94]We turn to the appeal of Ghulam Rasool. "Operation Payload" was a controlled delivery concerning the importation from Pakistan of 5.6kgs of heroin at 100% purity. These drugs had an estimated street level value of £962,000. the drugs arrived in the United Kingdom on 11 April 1995. The participating informant was Hanif Honi, who had previously been the participating informant in Operation November Skewer (Shahzad and Latif). The court has quashed the convictions in that case. Ghulam Rasool was arrested on 21 April 1995 after he had collected the heroin from Hanif at a flat under the control of Customs. On 6 December 1996, Ghulam Rasool was convicted on the majority verdict of the jury and sentenced to serve twelve years' imprisonment.[95]This appeal has been referred to the Court of Appeal by the Criminal Cases Review Commission. The appellant has submitted detailed grounds of appeal in which he challenged the safety of the verdict of the jury and the propriety of the prosecution process. The grounds were based on matters pertinent to the appellant's case but also the wider criticism of the conduct of controlled delivery operations made by the Court of Appeal in Choudhery and Others. In the "umbrella document" dated 5 October 2006, the Crown conceded that the appeal should be allowed. Recent researches and disclosure have revealed the clearest evidence that Hanif had lied about the circumstances leading to the abandonment of an earlier operation in ways which, as will be explained below, substantially undermined his credibility in relation to the importation which is the subject of this appeal.[96]The Crown was therefore constrained to accept that a jury aware of the new material might have properly reached a different verdict and that therefore the verdict was unsafe. There is good evidence to support the suggestion that one or both of the relevant DLOs, Barker and McElligott, knew of the lie, and were instrumental in its corroboration and dissemination. This gives rise to another potential basis of appeal, namely abuse of process/prosecutorial misconduct. The Crown is unable to call these officers to deal with this particular point, and does not know what explanation they might have.[97]However, for reasons set out in the judgment in Latif and Shahzad, this appellant has not asked the court to adjudicate upon the potential abuse of process and other grounds of appeal. He has asked the court to make it clear in any judgment that(1) there were no other grounds and(2) the fact that those other grounds were not adjudicated upon should not be taken to be a judgment on their merit. We do so.

The Facts

[98]On 11 January 1995 Hanif presented himself at the British High Commission in Islamabad and gave the British Customs Drugs Liaison Officers, Barker and McElligott, details of a plan to import heroin into the United Kingdom. Hanif, Barker and McElligott all provided witness statements. None of the witness statements described the contents of the information supplied on that first visit, nor the second visit, which took place on 23 January. It did appear, however, in the notebook accounts of those meetings, which were disclosed prior to trial.[99]A significant difference is apparent between the witness statement accounts and the notebook records. Whereas the notebook entries described the role of a man named Jalal Uddin in events leading up to the delivery of the drugs, his role was omitted from the witness statement accounts.[100]Hanif's witness statement described that he was introduced to the men who would eventually be the suppliers of the drugs the subject of Operation Payload. They were men named Iqbal, Tariq and Khalid. With them he was introduced in Pakistan to the eventual recipient of the drugs in the United Kingdom, Ghulam Rasool.[101]On 13 March 1995 a Phase 1 application was made to the Pakistan authorities, seeking permission for the heroin to be collected.[102]In due course, on 27 March 1995, the drugs were delivered to Hanif, and passed by him to Barker. The circumstances of the handover to Hanif were not observed by Barker. A request for Phase 2 authority, permitting the export of the heroin, was made on 9 April 1995.[103]On 11 April 1995 the drugs were collected by a UK based Customs officer, and conveyed back to the United Kingdom. Hanif reported subsequently that he had received 30,000 rupees towards his expenses from Musrat Begum, Tariq's partner. This money was passed to the Customs.[104]On 18 April 1995, Hanif flew from Pakistan to Manchester. He was met by Customs officers and established in a flat at 149b South Road, Erdington. There was telephone traffic between Hanif and Iqbal, and eventually Rasool telephoned in to Hanif. On 21 April, Rasool arrived at the flat. Conversation in the flat was recorded, and the events the subject of a video recording. Amongst the items captured on the video was Rasool inspecting the packages containing the heroin. Rasool was arrested as he left the flat in possession of the heroin. Various items connecting him to Hanif and Iqbal were found in his car and home address.[105]In his later interview, Rasool denied knowledge of the content of the packages. By the time of the trial, his defence had crystallised into an allegation of 'set-up'. He had believed that he was being asked to assist in the importation of medicines. On this point, Rasool was clearly disbelieved by the jury.

Grounds of Appeal

[106]The principal ground of appeal is the assertion that Hanif had misrepresented the evidence concerning the supply chain. The Crown now accept that it is unable to refute this ground of appeal. Of itself, this ground is sufficient to dispose of the appeal.[107]The misrepresentation concerns the role of a man named Jalal Uddin, and in order to understand it, it is necessary to consider an earlier approach made by Hanif to the then DLO, Jeff Ansell, which in the event did not lead to a controlled delivery. This earlier approach was in June 1994. In his notebook record of the meeting on 11 January 1995, McElligott referred back to June 1994 in the following terms: "Repetition of info given to JA (31/93 pg 13) Jalal Uddin pulled out because his cousin got beheaded in Saudi: JU now wants CI to take stuff to UK poss 20kgs". (Emphasis added)[108]Jeff Ansell's notebook record of June 1994 does not correspond with that explanation for the cancellation of the earlier potential delivery. It records merely that the intended recipient of that run was "not prepared to do business because of what had happened to his son". The notebook record left open what had happened to his son, but Ansell had given a fuller report in the telex which he had sent back to London recording his meeting with Hanif.[109]That telex revealed that the event that had befallen the son of the intended recipient of the June 1994 importation was not his beheading. It was that he had been the subject of an arrest in another otherwise unconnected controlled delivery operation.[110]Furthermore, Ansell went on to write to the Pakistani authorities cancelling the Phase 1 authority he had previously obtained for the intended June 1994 operation. In that letter he explained to the Pakistani authorities that the operation had ceased because "the informant in this case has advised us that the suppliers are concerned about the possibility of him working with the authorities".[111]It can be seen therefore that the contemporaneous explanation given for the withdrawal of the June 1994 operation was quite different to the explanation subsequently given in January 1995.[112]The material to establish the alternate explanations for the withdrawal of the earlier operation was not disclosed. The jury had only the "beheading" explanation, upon which defence counsel poured some scorn in the course of his cross-examination.[113]It is accepted that a shift in explanation was an extremely significant one. The new explanation permitted of Uddin and Hanif working again together in January 1995. The contemporaneous explanation makes it difficult to countenance that Uddin would again act with Hanif, having believed him to be working with the authorities.[114]The Crown is unable to establish whether the shift in the explanation was appreciated by the DLOs Barker and McElligott. Both appear to have had access to material, and possibly knowledge, that would have made the shift apparent to them. However, their knowing complicity in Hanif's misrepresentation is not necessary to the decision the Crown has reached. In any event the Crown have previously made it clear that they have formed the view that Barker and McElligott cannot be called to give credible evidence.[115]A jury aware of the full picture might have struggled to conclude that Uddin had been reconciled to Hanif; if that were the case why should Hanif lie about the beheading? Why not simply explain the reconciliation? Similarly, a jury aware of the full picture could have concluded that Uddin was working with Hanif knowing that Hanif was working with the authorities. A supplier and participating informant acting in concert increase significantly the risk of set-up. Since Rasool's defence was set-up, the Crown accepts that had the jury known what has now been revealed, this might reasonably have affected the decision of the trial jury to convict.[116]Without reference to the other grounds, the Crown therefore do not propose to resist this appeal. We agree. The appeal is allowed and the conviction quashed. ______________________

Cited in 3 later judgments