Moustakim, R v [2008] EWCA Crim 3096

Case No 200801397/C1

[2008] EWCA Crim 3096

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 27th November 2008

Strand

London, WC2A 2LL

B e f o r e:

SIR ANTHONY MAY

(PRESIDENT OF THE QUEEN'S BENCH DIVISION)

MR JUSTICE SIMON

MR JUSTICE BLAKE

Between

R E G I N ACrown

Between

MALIKA HADDAD MOUSTAKIM

Computer Aided Transcript of the Stenograph Notes of

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Mr A Darlington (Solicitor Advocate) appeared for Appellant

Mr G Cammerman appeared for Crown

J U D G M E N T

SIR ANTHONY MAY: As long ago as 24th May 2006 the appellant, now aged 44, appeared in the Crown Court at Croydon before His Honour Judge Pratt and a jury and was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of Class A, that is to say cocaine. She was sentenced to 10 years' imprisonment. She was then represented by solicitors and counsel, and counsel, as we understand it, advised at the time that there was no basis for an appeal against conviction. She applied for leave to appeal against the sentence but on 6th November 2006 the Full Court, presided over by Tuckey LJ, dismissed a renewed application to that effect.

[2]She now appeals against conviction by leave of the single judge upon one ground, who also granted the necessary long extension of time, something over a year and 8 months in which to do so. This came about because Mr Darlington was asked to look into the matter by a charity concerned with the welfare of female prisoners in the United Kingdom. He has formulated the one ground of appeal which requires substantial consideration. He has also done much investigation, covered much paper and advanced numerous applications which on investigation do not readily advance any substantial or coherent further grounds of appeal against conviction. We put it in those terms because Mr Darlington has not addressed us this morning and it would be quite unfair to come to any final conclusion on the matter. A number of these were disposed of by directions given by the full court on 24th October 2008 and nothing more for present purposes need to be said about them.

[3]The facts upon which the appellant was convicted are briefly these. On 7th January 2006 at about 7.45 in the morning, she arrived by aeroplane at Gatwick on a flight from St Lucia. She spoke to a customs officer and told him she was in transit to Madrid. She said she had nothing to declare. A search of her hand luggage was conducted and a field test indicated the presence of cocaine. Her suitcase was searched and three bottles of Johnson's baby powder were found. The manufacturer's seals on the bottles had been cut and stuck back with adhesive. The bottles were found to contain plastic bags with white powder inside which on analysis was found to constitute 645 grams of cocaine, equating to 523.5 grams at 100 per cent purity.

[4]The prosecution case was that she knew that she was carrying drugs in the bottles. The defence case was that she did not know that she was carrying drugs in the bottles and the issue for the jury accordingly was whether they should be sure that she had knowingly brought these drugs into the country.

[5]A customs officer gave evidence that she had no previous convictions in this or any other country. A customs officer who questioned her established that she worked as a cleaner in Spain. She had gone to St Lucia to visit her boyfriend, whom she called "Peter Johnson". They were planning to get married in the August. Her ticket had been paid for by her, her mother and her boyfriend. She was interviewed and in her interview gave an account which was in the main the same as the evidence which she gave at trial. That evidence in summary was as follows.

[6]She was 42 years old at the time and lived with her 13-year-old daughter in Madrid. She worked as a cleaner for an agency and earned between 1200 and 1300 Euros a month after tax. Her rent was 200 Euros a month and she received 250 Euros a month as maintenance for her daughter which had increased to 300 Euros in the December. Peter Johnson was her fiancée. He was a Canadian national but had been born in Nigeria. They were to be married in August. They met at the end of 2002/the beginning of 2003 in Madrid. She was then working for the Red Cross and he had a Red Cross badge. He got a job in St Lucia and moved there in December 2004. She stayed in Madrid. They spoke on the telephone almost daily during 2005. She visited him in August 2005 for three weeks. Her sister and her husband paid for the trip. She visited him again in the November for 10 days. He paid half of that trip and she paid the rest from her savings. Her last trip had been paid for by her mother. She stayed, she said, at Peter's house in St Lucia. She did not know the address and could not find her way there now. It was 10 to 15 minutes away from the airport. Lots of his friends visited the house including his friend, Raj. Raj worked as a volunteer for the Red Cross. Peter was a nurse. They both wore hats and T-shirts with Red Cross logos. She had been in custody since her arrest and had spoken to Peter on the telephone, the last time being on 25th March. Since then his telephone had been switched off. She told him everything after her arrest. She had received a letter in April from Raj, giving an address care of the Red Cross in St Lucia.

[7]In so far as she had given an account in interview that her boyfriend was concerned with the Red Cross in St Lucia as a nurse, other evidence established that the Red Cross in St Lucia had never heard of a Peter Johnson. Her account continued that she met Peter's neighbour, Jack, in St Lucia. Raj also knew Jack. She did not know Jack's surname. He asked her to take a gift to a woman in Spain but did not mention her name. He said that this woman was pregnant and he wanted to help her. He gave her a bag of bottles of baby powder, shampoo and some body lotion. They looked as if they were new. She believed him. She would not have taken them if he had told her there were drugs inside. He told her he would give his friend her telephone number so that she could call her and arrange for them to meet. Peter gave Jack her telephone number. On one occasion Raj had used her telephone in St Lucia and had put his SIM card in her telephone. Raj gave her his number and she wrote it on a piece of paper. She did not know or suspect that there were drugs in the bottles. She still hoped to marry Peter in August. She had hoped he would have attended her trial. They planned to live in Madrid after the wedding. She had met Jack on her previous trips to St Lucia. Asked about Jack, she said that Jack was a real person, she had not invented him. He lived in the same street as Peter. She did not have a telephone number for him. She had called, she said, Raj, to find out what was going on with Peter and Raj had told her that Peter was travelling. That was her account. She said that she did not know how the traces of cocaine came to be on her bag. Her mobile telephone had been in several other people's hands. She did not know where Raj and Peter were now. She had hoped they would be at her trial.

[8]The jury unanimously convicted the appellant and may be taken to have surely rejected her evidence that she did not know that she was importing cocaine. Her account was, as we have said, shown to be false in one particular, that is that Peter Johnson did not work for the Red Cross in St Lucia.

[9]As we have said, the full court in October disposed of a number of matters which Mr Darlington had raised on 24th October. Those were relevant to other possible grounds of appeal for which leave had not been given and for which in other circumstances Mr Darlington would probably have been seeking to persuade this court that leave should be given.

[10]The one substantial ground of appeal is that the judge's summing-up, with reference to the appellant's good character, was deficient. What the judge said in this respect was as follows. He said this:

"You know from the officer that the defendant is aged 42 and you know Mrs Lieden and the defendant that she has no convictions in this or any country, she therefore falls to be dealt with by you as a defendant of good character. Now, how does that impact upon her trial? Well, a defendant of good character is entitled to say that I am as worthy of belief as anyone, so in the first place it goes to the question of whether or not you believe Mrs Moustakim's account. Secondly, she is entitled to have it argued on her behalf that she is perhaps less likely than a defendant of bad character to have committed this or any criminal offence. Good character is not a defence to a criminal charge. We all start life with a good character, some of us lose it on our way through, and it will be for you to decide what weight is proper to put upon this lady's good character when you come to consider the evidence which is your principal focus."

Mr Darlington says that this was a deficient direction and Mr Cammerman, on behalf of the prosecution, agrees that it was deficient.

[11]Mr Darlington refers us to the case of R v Lloyd

[2000] 2 Cr App R 355

, which itself cites the well-known case of R v Vye

(1993) 97 Cr App R 134

, where Lord Taylor LCJ said this:

"To summarise, in our judgment the following principles are to be applied. (1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements. (2) A direction as to the relevance of his good character to likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements."

The case of Lloyd quotes a further passage from Vye at its page 479 as follows:

"Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this Court will be slow to criticise any qualifying remarks he may make based on the facts of the individual case."

[12]This court in Lloyd was concerned with character directions which had been given in the form of questions. The finding of this court in Lloyd is summarised in the headnote as this:

"... that character directions should not be given in the form of a question, they should be given in the form of an affirmative statement, and that applied even if the question was a leading question; that in a case such as this one which turned almost entirely on the question of credibility as between the complainant and the appellant, the question of credibility was of the greatest importance and relevance so that, in the absence of an appropriate direction as to good character, the convictions were unsafe."

Reference is made in the judgment of this court at page 360 of Lloyd, to the Judicial Studies Board guideline directions in this respect. We should, of course, say that although Lloyd is an example of a case where a deficient good character direction resulted in a conviction being held to be unsafe, there are other cases, in other circumstances where that may not be so, and we have had drawn to our attention the case of R v Zielinski

[2007] EWCA Crim 704

where upon a different direction and on different facts the conviction was regarded as safe.

[13]The two limbs of the direction required are reflected in the Judicial Studies Board guideline directions which include that a good character cannot of itself provide a defence to a criminal charge, but it is evidence which the jury should take into account in the defendant's favour. First, as with any person of good character it supports his credibility. This means that it is a factor which the jury should take into account when deciding whether they believe his evidence. Second, the fact that the defendant is of good character may mean that he is less likely than otherwise might be the case to commit the crime of which he is charged.

[14]As we have said, Mr Cammerman, for the prosecution, accepts that the judge's direction in the present case was deficient. His written submissions explain why he accepts that the direction was deficient and additionally why, in prosecution submission, the extent of the deficiency is no more than, as he put it, moderate. His broad submission this afternoon has been that, although the direction given by the judge was, he accepts, deficient as to both of its limbs, the general sense of the required direction was given. What he helpfully wrote was this:

"It is the Respondent's submission that the direction, taken as a whole, communicated the sense of the good character direction sufficiently that it need not undermine the safety of the conviction. On limb one, that is credibility, the learned judge stated that the Appellant was as worthy of belief as 'anyone'. The clear purpose of a good character direction, properly given, is to direct the jury that she is morelikely to be telling the truth because she is person of good character. However, in the submission of the Respondent's, the use of the term 'anyone' communicates 'you or me' in distinction to a person with previous convictions. When taken in the context of a direction about good character it conveyed a sense, if less clearly than it ought to have done, that the Appellant is as likely to be telling the truth as an ordinary person of good character should be."

The second limb of the direction, he submits, to propensity was expressed not as a direction but rather as a potential argument that may be advanced on the appellant's behalf. Mrs Moustakim was entitled to a direction rather than an invitation to consider argument. It was, in the respondent's submission, made clear that the defendant's good character was something that the jury should take into account in her favour when deciding on the likelihood of her committing the offence. Mr Cammerman goes onto submit that notwithstanding the deficiencies in the good character direction, the jury must have been left with the impression that Miss Moustakim's good character was a factor to be weighed in her favour when considering credit and propensity. Examination of the detail of the transcript may do injustice to the effect of the direction as a whole. Neither prosecution nor defence counsel intervened to comment upon the direction. Defence counsel did not form the view that the good character direction could form a ground of appeal. It is submitted that this may reinforce the view that the sense of the character direction was communicated adequately to the jury.

[15]In our judgment, this direction, which we have read, in the present case was inadequate because: 1. There is no explicit positive direction that the jury should take the appellant's good character into account in her favour. 2. The judge's version of the first limb of the direction did not say that her good character supported her credibility. The judge only said that she was entitled to say that she was as worthy of belief as anyone. It went, he said, to the question whether the jury believed her account. 3. The judge's version of the second limb of the direction did not say that her good character might mean that she was less likely than otherwise might be the case to commit the crime. He said that she was entitled to have it argued that she was perhaps less likely to have committed the crime. The use of the word "perhaps" is a significant dilution of the required direction. 4. In the judge's direction each limb is expressed as what the defendant is entitled to say or argue, not as it should have been a direction from the judge himself.

[16]We have carefully considered the safety or otherwise of this conviction in the light of the direction as to the appellant's good character and its deficiencies to which we have referred. We accept that on one view the case against her was strong. She imported a quantity of cocaine inexpertly concealed in baby powder bottles. Her account to the effect that she did not know that the bottles contained cocaine and that she was given no detail of the person to whom it was to be delivered in Spain was intrinsically questionable and was proved to be untrue in one respect, that is to say her account that her boyfriend worked for the Red Cross in St Lucia. However, the central issue in the case turned on the credibility of the appellant and it was precisely to this that the direction as to good character was directed.

[17]As in the case of Lloyd, the character direction was a crucial part of the summing-up and a crucial factor when considering the safety of the verdict. In the absence of an appropriate direction, having the deficiencies which we have identified as to good character, in our judgment, this conviction has to be regarded as unsafe. Accordingly the appeal against conviction is allowed.

SIR ANTHONY MAY: What do the prosecution want to do in those circumstances?

[19]MR CAMMERMAN: I am instructed to invite the court to order a retrial. The witnesses are available and can give evidence and hopefully the trial will take place within the period allowed by section 8 of the Criminal Appeal Act 1968, 2 months. She will be arraigned and retried soon thereafter.

SIR ANTHONY MAY: She will be rearraigned on a fresh indictment within 2 months?

[21]MR CAMMERMAN: Yes.

SIR ANTHONY MAY: We would anticipate and hope that it would happen more quickly than that.

[23]MR CAMMERMAN: My Lord, yes. I will speak to those instructing me and invite a listing, if the court is minded to order a retrial, as soon as practicable. The bundles are in the same state as they were at trial.

SIR ANTHONY MAY: If we were to do that, and we will hear Mr Darlington in a moment, do we have to give a direction to venue or is that to be left to the presiding judges?

[25]MR CAMMERMAN: I am afraid I am not in a position to assist on what the proper course the court ought to take. I operated under the assumption that it would return to Croydon.

SIR ANTHONY MAY: Plainly it should not be before the same judge but I cannot believe there is any reason for not having it at Croydon.

[27]MR CAMMERMAN: That court has experience in dealing with cases of this type with being a local court to Gatwick.

SIR ANTHONY MAY: Mr Darlington, what about it?

[29]MR DARLINGTON: I would hope to try to persuade my Lords not to order a retrial for basically three reasons. Of course, when dealing with those three reasons we have to, to some extent, enter on the material that your Lordship has not yet dealt with which would have been in the further grounds. That of course relates to the email from the British console.

SIR ANTHONY MAY: I am sorry to interrupt you, but I do not quite see why we have to consider material which might or might not be relevant in a further retrial in order to decide whether to have one.

[31]MR DARLINGTON: The reason is, since this trial took place, my Lord, in May 2006, we have in fact had an emerging information that was not available, that was not available at the time of the retrial, of the original trial, with regard to who Peter Johnson is, what kind of person he is, whether in fact he deceived Miss Moustakim in respect of this matter from the start. Not necessarily, my Lord, by virtue of being in the Red Cross in Spain. It could be he was working in the Red Cross in Spain but not in fact working in the Red Cross in this country.

MR JUSTICE SIMON: Why are those matters for the jury?

[33]MR DARLINGTON: They are new matters, my Lord, that were not before the original court. They are emerging--

SIR ANTHONY MAY: They are matters that can be put before the next court if there is to be a retrial.

[35]MR DARLINGTON: I put it my Lord in connection with two other grounds if I might be so bold to mention them. The second ground may not have much favour with your Lordships but it is nonetheless a factor which comes into the equation. It is this. On the facts that we can see with regard to the time that the defendant has actually served, she has actually served four-fifths of the sentence that she would otherwise serve. That, my Lord, is because of the way the oversees prisoners, including people in Spain, are now being released 9 months early. That means that she was actually arrested in January 2006. She has been in custody up until the current time, that is nearly 3 years. We are not going to reasonably get a trial, I would have thought, much before about March of 2009. Her release date would appear to be March/April 2010, after you have taken into account the period of time that would be allowed off. So by March of 2009, my Lord, she would actually have served approximately four-fifths of her sentence. I agree it is not--

SIR ANTHONY MAY: She has not served four-fifths of her sentence at the moment.

MR JUSTICE SIMON: How long did the trial take?

[38]MR DARLINGTON: Two days, two-and-a-half with the jury out, I think.

SIR ANTHONY MAY: Yes. That is the second point. The third point?

[40]MR DARLINGTON: The third point is one that I put forward with some diffidence because I do not want to appear offensive or rude to my learned friend or indeed to the Customs who have in fact instructed him. But there are two ways in which one can prosecute a case, and I speak of my limited experience of 6 years in the Crown Prosecution Service. One is one runs it totally fairly. One acts as a minister of justice, that is one's approach. One assists the defence where it is in one's power to assist the defence, particularly by giving them material which they cannot otherwise get which is only within the prosecution power.

[41]That is the Crown Prosecution Service way of dealing with prosecutions. I have to say, and I do not want to offend my learned friend, who may well be acting on instructions, that the minister of justice role has not been adopted by the prosecution in this case.

SIR ANTHONY MAY: You are entitled to assert that. It seems to me that it is of questionable value in two respects. Firstly, as to the actual conduct of the trial. Speaking for myself I have seen nothing that would be open to the kind of criticism you are making at the moment. Secondly, as to what has happened since, the appellant had one good ground of appeal which has succeeded and a lot of other enquiries have been made which we have not gone into. Not going into those means we are going to be persuaded one way or the other as to whether the Crown Prosecution Service has behaved in a proper manner or not. We are certainly not going to conclude that they have not.

[43]MR DARLINGTON: May I put it this way? If this case proceeds to trial in March or April, or whenever it is of 2009, without the defence being supplied with material, which they have requested on the prosecution, and which only the prosecution can provide. They have the key to the door. No one else has, with regard to obtaining information, with regard to Mr Johnson, in St Vincent this defendant will not get a fair trial.

SIR ANTHONY MAY: That is all with the future. We are concerned with whether there should be an order for a new trial.

[45]MR DARLINGTON: What I am saying, my Lord, the history of this case is that if we have a new trial we are going to need the information we have requested from the prosecution with regard to, firstly, whether Peter Johnson is even a man (inaudible). We need that information because it goes to the extent of the deceit that now is the nub of the defendant's case, that she was in fact deceived by Mr Johnson; she was innocent in a drug dealer's world; she did not know it. The information to confirm that totally is within the power of the prosecution.

SIR ANTHONY MAY: You have now said that three times. We got it the first time. Thank you.

[47]MR DARLINGTON: What I am saying -- yes, simply, my Lord, the prosecution are -- the Customs, the people in St Vincent are not going to give us that information. They made that quite clear in their email of 22nd August. We are not going--

[48]MR JUSTICE SIMON: Mr Darlington, you can ask the prosecution for this information. If you say they are in breach of their disclosure obligations, you can raise this as an abuse argument in front of the judge, can you not?

[49]MR DARLINGTON: We have raised it in every possible way we can.

MR JUSTICE SIMON: The proper way of raising it is as an abuse argument in front of the trial judge.

[51]MR DARLINGTON: One further way, a simpler way, if I may say so, my Lord, simply for the prosecution to contact the authorities in St Vincent and get the information that we have been asking for the last past 5 months. They are not prepared to do that. Why are they not prepared to do that? There are two possible reasons, either because of budget considerations, which does not seem to me to be sufficient reason, or because they realise if they do make those enquiries they will in fact support the defence case. My submission is that that is not fair.

SIR ANTHONY MAY: What the prosecution may do, in circumstances where by direction of this court there is to be a retrial, remains to be seen.

[53]MR DARLINGTON: Those are my three grounds. There is emerging information that was not available, that the defendant was involved in sentence and thirdly, unless the prosecution (inaudible) she is not to get a fair trial. (Short Adjournment)

SIR ANTHONY MAY: We propose to direct a fresh indictment and, if it is proceeded upon, a fresh trial. Mr Cammerman, is there any reason why the fresh indictment should not be preferred within 14 days?

[55]MR CAMMERMAN: No.

SIR ANTHONY MAY: What about the period for rearraignment?

[57]MR CAMMERMAN: There is no reason why that cannot happen far sooner than the 2 months allowed.

SIR ANTHONY MAY: Can we direct the period? I mean section 8(1) says within 2 months but if we are going to have a fresh indictment within 14 days, we ought to have rearraignment within 28, ought we not?

[59]MR CAMMERMAN: My Lord, yes.

SIR ANTHONY MAY: Do you want to say anything about these periods?

[61]MR DARLINGTON: Only, I may be being a little self interested from the point of view of convenience, it is possible to be heard at Isleworth, my Lord.

SIR ANTHONY MAY: I do not see why that should be. It is a Croydon case, is it not -- yes? I think we will direct that it should be at Croydon or at such other venue as the court by means of presiding judges may direct.

[63]MR DARLINGTON: Could I, in the circumstances, as I say an application for directions already has be made to this court and will be among your papers. There are a number of requests that we have made in that application. They were heard, firstly, by the Registrar, then they were referred to the full court and refused by the full court. We are going to be in a situation, as I said, of needing that information in order to properly put this appellant's defence. We cannot get it.

SIR ANTHONY MAY: Mr Darlington, it is entirely up to the appellant and you or anybody else advising her as to how this retrial is conducted, how the proceedings are conducted but we are going to do so, direct that the trial is listed for hearing as soon as is reasonably possible. If applications within that trial are to be made, we would have imagined they would be made with a view to enabling the trial to take place as soon as possible.

[65]MR DARLINGTON: I am only wondering if I could persuade my Lord, that it would have saved time if your Lordship was prepared to consider making now a letter, an order for letter of request.

SIR ANTHONY MAY: Certainly not. This court is concerned with appeal matters. We have determined the appeal. It is for the court to which this matter will now go to determine such matters.

[67]MR DARLINGTON: May I raise one other matter with regard to this, that is the question of bail? My Lord, there is a bail application.

SIR ANTHONY MAY: What we propose to do is to direct that the appellant is remanded in custody, but that a bail application can be made to the trial court.

[69]MR DARLINGTON: I am grateful for that.

[70]There is one other matter, I make it not in my own interest because I was formally employed by the firm who were good enough to do preliminary work in respect of this case prior to legal aid being granted. I no longer work for that firm. They will get some payment because of the advice provisions but they would be better remunerated if in fact your Lordships were prepared to consider backdating the legal aid order to the time I was instructed.

SIR ANTHONY MAY: That is an application you made before the full court presided over by Hallett LJ and she refused it.

[72]MR DARLINGTON: I thought she did not deal with it. I fully accept that.

SIR ANTHONY MAY: Our information is that that was dealt with by that court.

[74]MR DARLINGTON: It is not a matter of consequence to me.

SIR ANTHONY MAY: The order of the court will be as follows: the appeal is allowed the conviction quashed. We direct that a fresh indictment be preferred on the counts upon which she was formally tried and convicted. The fresh indictment to be preferred with 14 days and a direction that she be re-arraigned on that fresh indictment within 28 days. We direct that she be remanded in custody but may, if so advised, apply to the trial court upon a bail application. There will be a representation order for the retrial. We direct that the retrial should take place at Croydon but not before the same judge, or at such other venue as may be directed by the court. (Pause)

[76]I am asked whether there should be reporting restrictions on today's proceedings in the light of a retrial. I would have thought it is unnecessary.

[77]MR CAMMERMAN: For my part, I see no good reason.