Flook, R v [2009] EWCA Crim 682

Case No 2007/05165/C1[2009] EWCA Crim 682
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HH J MARRON QC
T200706165
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/07/2009
Before
LORD JUSTICE THOMASMR JUSTICE PENRY-DAVEYHH JUDGE RADFORD
Between
ReginaRespondentRobert Daniel FlookAppellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr T Langdale QC and Mr N Yeo (instructed by Hughmans) for Appellant; neither counsel nor the solicitors represented the appellant at the trialMiss S Canavan, Mark Heywood and Ben Temple (instructed by The Crown Prosecution Service) for RespondentMatthew Barnes for HM Revenue and CustomsHearing Hearing dates: 1 and 2 April and 24 June 2009
Judgment

Introduction

[1]The appellant was convicted on 20 August 2007 at the Crown Court at Blackfriars before HHJ Marron QC and a jury on two counts of conspiracy relating to the importation into the United Kingdom of cannabis (count 1) and cocaine (count 2); he was sentenced to a total of 26 years imprisonment.[2]It was common ground on the appeal that there had been a conspiracy to import cannabis and cocaine into the United Kingdom. i) A container containing tables and chairs consigned to Play Away Events Ltd, a defunct UK company, by Incognito Trading (Pty) Ltd, trading as Megatrade, a South African Company and sent via a unit at 18 Gillets Road, Pinetown, South Africa, was shipped in August 2006 to Felixstowe on board the MSC Aniello. After arrival at Felixstowe, it was inspected by HM Revenue & Customs (HMRC) on 10 September 2006 and found to contain about 7.5 tonnes of cannabis. ii) South African police raided premises at Tongaat, South Africa on 4 October and found 165 kg of cocaine hidden in a consignment of mirrors intended for P& G Mirrors UK Ltd The shipment in the container on the MSC Aniello had been the 26th in what was said to be a series of shipments from South Africa to the United Kingdom which formed the basis of the conspiracies; the consignment of mirrors was to be the 27th. The issue in the trial was whether the appellant had been a party to both the conspiracies alleged by the Crown and whether his co-defendant, David Norris, had been a party to the conspiracy to import cocaine. David Norris was acquitted by the jury.[3]There were three issues in the appeal. i) Did the Crown comply with its obligations in respect of disclosure of documents held by the police and other government authorities in South Africa? ii) Did the judge set out in his summing up evidence in relation to the practices of HMRC which had not been given at the trial? iii) Did the summing up set out the defence case and was it fair and balanced? A further ground was raised at one stage during the hearing of the appeal – whether there had been a mis-direction on character. It became clear that the direction given had been agreed and the application on this ground was not pursued.[4]We concluded the argument on the second and third issues at the hearing in April, but further argument was required on the first issue. On the conclusion of that hearing we decided and stated that the appeal was allowed on the second and third grounds, but not on the first for reasons to be given later. We directed a re-trial, but made an order restricting publication of this judgment containing reasons for our decision until after the re-trial.[5]It is necessary first to set out the factual background and the case advanced by the Crown and the defence.

(i) The undisputed factual background

[6]The appellant had had a variety of businesses including Play Away Events Ltd. (PAE) which he ran with Mr Strickland. PAE imported marquees from South Africa and these were used in connection with hospitality for sporting events. In 2000 he fell out with Mr Strickland. Proper accounts were not submitted for the company and it was struck off in June 2001.[7]The appellant continued to trade through PAE and in March 2001 began importing garden furniture. The furniture was purchased from Josgo, a South African company, and sent in containers to Tilbury. The first nine containers were sent between March 2001 and April 2002 direct by Josgo to the vessel at Durban and were collected at Tilbury by Eagle Cargo Services, forwarding agents, and taken to Unit 3D at Denton’s Wharf. The Appellant accepted that he had been responsible for making these importations using John Tutton and Tom McKinnon, friends of long standing, to make the arrangements in South Africa. Mr Ernest Smith also worked with them in South Africa. He had known Mr Tutton and Mr McKinnon through the building trade in the UK before they had moved to South Africa. They had worked for him in PAE. It was common ground that Mr Tutton had frequently used the false identity of Ron Rust who had died in 2001; it was claimed by the Crown that the identity had also been used by the appellant, but this was disputed.[8]The pattern of shipping altered with the 10th container shipped in July 2002. i) This and the 12th -16th containers (which were shipped between March and November 2003) were not sent from Josgo’s premises directly to the vessel at Durban. ii) They were diverted to premises at Constantia Park before being sent onto the vessel. The premises at Constantia Park were rented by the appellant in March 2002. iii) After discharge from the vessel at Tilbury, they were all delivered to Unit 3D at Denton’s Wharf, which the appellant accepted he had rented. Eagle Cargo Services continued to act as forwarding agents until October 2003 when FIS Tilbury Ltd took over. The evidence of Mr White of FIS was that he invariably dealt with Mr Tutton. iv) The 11th container (which was a shipment from Josgo to PAE in September 2002) was not diverted via the premises at Constantia Park.[9]In November 2003, premises at 18 Gillets Road, Pinetown, South Africa were rented by a man fitting the description of Mr Tutton and another man.[10]All the previous shipments had been to PAE. In early 2004, another UK company became involved - P&G Mirrors UK Ltd (P&G), the company controlled by the appellant’s co-defendant – Mr Norris. i) In January 2004, another South African Company, PFG Building Glass (Pty) Ltd sold 12 cases of mirrors to P&G. These were loaded into a container (the 17th) and sent direct to Durban and on arrival at Tilbury delivered direct to P&G in Brixham, Devon. ii) The 18th container (shipped in February 2004) was shipped in the same way.[11]The premises at Denton’s Wharf used by PAE was moved from Unit 3D to Unit 3C in 2004.[12]There then followed a series of further shipments, some consigned to PAE and some to P&G. i) In 2004, Mr Tutton and “Mr Ron Rust” made an arrangement with Tonlee Glass, another South African Company. 2 containers with mirrors (19th (February 2004) and 24th (April 2006)) were consigned from Tonlee to P&G. The containers were sent from Tonlee to the premises at 18 Gillets Road before being loaded onto the vessel and delivered in the UK to Denton’s Wharf ii) One container (20th) was shipped in April 2004 from Josgo to PAE. It was sent direct to the vessel by Josgo. This was the last shipment by Josgo which went out of business. iii) The 21st container shipped in June 2004 contained glass consigned by PFG to P&G; it was delivered to Denton’s Wharf. iv) As Josgo had gone out of business, a new supplier of furniture became involved at the South African end – Megatrade. Mr Ungar, its managing director made the arrangements with Mr Tutton, claiming to act for PAE. In April 2005 and December 2005, 2 containers of furniture (22nd and 23rd) were sent by Megatrade via Gillets Road for shipment at Durban. The containers were consigned to PAE and on arrival were delivered to Denton’s Wharf. v) In April 2006 a container with mirrors (24th container) was sent by Tonlee Glass via Gillets Road for shipment at Durban. It was consigned to P&G and on arrival in the UK was taken to Denton’s Wharf. vi) In May 2006, a container with furniture (25th container) was sent by Megatrade via Gillets Road for shipment at Durban. It was consigned to PAE and on arrival in the UK was taken to Denton’s Wharf.[13]On 29 June 2006, the appellant visited South Africa. It was one of a number of visits he made. He met Mr McKinnon and Mr Tutton. He was there until 5 July 2006.[14]The 26th container was sent by Megatrade with furniture via Gillets Road for shipment at Durban. On 21 August 2006 two British men were seen by the police at Gillets Road to be involved in the loading of boxes into the container; one of those was Mr Tutton. Some of the boxes were specially numbered. The container was consigned to PAE. This was the container found by HMRC after arrival at Felixstowe on 10 September 2006 to contain about 7.5 tonnes of cannabis. The cannabis was in boxes similarly numbered to those seen in South Africa. When Unit 3C at Denton’s wharf was searched, boxes similarly numbered were found, as were traces of cannabis. There could be no doubt but that the unit was the UK end of the importation of the cannabis.[15]The 27th container was an empty container delivered not to Gillets Road, but to premises at the David Whitehead Complex, Tongaat, Durban on 4 October 2006. The South African police raided the premises and found Mr Tutton passing money to Mr McKinnon outside the premises. Inside the premises, concealed in the mirrors in the container, was the 130kg of cocaine. The shipment was to be recorded as sent by Tonlee to P&G.[16]Mr Tutton and Mr McKinnon were arrested, charged and subsequently convicted in South Africa in December 2007 on two counts of trafficking in narcotics – the cannabis sized at Felixstowe and the cocaine seized at Tongaat. Mr Smith was acquitted. (ii). The Crown’s case[17]The case that the appellant was a party to the conspiracies was rightly described by the Crown as formidable. Amongst its more important features were: i) The evidence of Mr Strickland that the appellant suggested smuggling cigarettes and evidence pointing to the fact that the appellant knew that PAE would be struck off unless accounts were filed. ii) Evidence that the appellant had claimed to others that he was still involved in importing furniture in 2006 from South Africa, though it was his case that he had ceased doing this in 2004. a) Superintendent Bracken recalled the appellant and Mr Tutton discussing with him in January 2006 that they were in business together importing furniture from South Africa. b) On 20 March 2006, the appellant was stopped at Heathrow on his way to South Africa and found to have £21,000 in cash. His explanation given at the time was that he was currently importing furniture into the UK by ship. The cash was seized and he did not contest its forfeiture. c) His c.v. found on his arrest stated: “October – present: Timber Merchant South Africa”. iii) The appellant’s conflicting accounts of why he rented Constantia Park and the lack of documentation to support the account that he gave as an explanation. iv) Evidence of connections with Unit 3C at Denton’s Wharf (used in and after 2004 for importation) though the appellant claimed he had nothing to do with Unit 3C. a) Documents found at the appellant’s house when it was searched in October 2006 after his arrest. These principally comprised a torn Megatrade invoice addressed to PAE relating to shipment 22 or 23 and a boot bag containing various documents said to connect him with the conspiracy. b) Evidence in a witness statement from Wayne Ely connecting the appellant with Unit 3C at Denton’s wharf, though Ely’s evidence at trial was to the contrary. He was cross examined on his statement. c) Evidence from the owner of Denton’s Wharf, Mr Ellicott, that “Ron” rented Unit 3D and then those renting it moved into Unit 3C. A man in a Jaguar had a lot to do with this. The appellant owned a Jaguar. d) Evidence from Mr Parker, the proprietor of Walkers Transport (which was the road haulier which transported the containers to Denton Wharf), that he had had lunch with Mr Tutton and the appellant in late 2005 or early 2006 from which he thought that the appellant dealt with the UK end of the garden furniture business. He also gave evidence of telephone calls from “Bob” in connection with the seizure of container 26; there was some phone evidence that was said to lend support to those telephone calls being from the appellant. v) An insurance claim form in respect of the theft of the appellant’s Range Rover Vogue in which he claimed he was the managing director of “P&G Mirrors UK Ltd and Josgo UK Ltd.” vi) Connections with 263 Knights Manor Way – premises accepted to be involved in the conspiracies. It was rented from its owner by “Ron Rust” in September 2003. a) The statement of the appellant’s brother in law, Mr Hart, that it was rented in 2004 from Ron Rust. The truth of the statement was challenged by the appellant. Mr Hart could not be traced and the statement was read. Mr Hart’s statement also stated that the appellant told him he was making a lot of money from the garden furniture business. b) Documents in the boot bag. vii) The absence of documentation in respect of what he claimed was a legitimate importation up to 2004. viii) He had made a “no comment” interview.[18]The Crown also had evidence in respect of his finances which they contended showed the appellant had no legitimate source of income; that was served late and not relied on at trial. (ii). The appellant’s defence[19]The appellant’s defence, as initially set out in his defence statement served on 21 June 2007 (about 3 weeks before the start of the trial), and amplified in the evidence he gave at trial was that i) He had gone into the business of importing garden furniture from South Africa as the rand was at a low exchange rate relative to sterling. He had used PAE in ignorance of the fact that it had been struck off. The containers sent by Josgo were legitimate importations of furniture. He had subsequently rented the premises at Constantia Park so that he could fill the empty spaces in the containers with parasols and cushions which would then be carried to the UK at no additional cost. He had no paperwork in respect of this, as he kept no paperwork to avoid paying tax. ii) He pulled out of this trading in April 2004 after the two final importations from Josgo (containers 16 and 20), because it had become unprofitable after a rise in the value of the rand. iii) Mr Tutton had set up his own import/export business in 2003 and, at Mr Tutton’s request, he had helped him in the UK, but the help had principally been given by Roger Hills and Dave Harding who ran the UK end of the business. He remained close friends with Mr Tutton iv) PAE was being used after April 2004 without his knowledge by Mr Tutton. It was Mr Tutton who used the identity of Ron Rust. It was also Mr Tutton who had rented Unit 3C at Denton’s Wharf and he had not been involved. He had nothing to do with P&G. He relied on the evidence of Mr White of the freight forwarders, FIS Tilbury Ltd, who had arranged all the consignments other than the first 6, that he had dealt with Mr Tutton. v) The appellant had visited South Africa because of his interests in Rugby and other businesses, including property; the meetings with Mr Tutton in South Africa were not to do with drugs and he knew nothing of the premises at Gillets Road. vi) The documents found in his house in October 2006 were given to him when there was a clear out of the old Unit 3D at Denton’s wharf when Unit 3C was rented. He was given the Megatrade invoice addressed to PAE by Mr Hills who thought that as PAE was no longer trading, the appellant ought to have it. He spoke to Mr Tutton on the phone and received an explanation which he accepted. vii) He gave detailed explanations of the matters through which the Crown sought to link him with the conspiracy.

The trial

[20]The trial began on Monday 16 July 2007. It is clear that the case was not ready; for example, there was no jury bundle. A few days into the trial the jury sent a message to the judge stating that they were not understanding the case. A jury bundle was then prepared and it was only when Mr White of FIS gave evidence were schedules of the shipments available. It is a matter of concern that such a serious case was not ready, but we say no more.[21]We were told that the Crown’s closing speech was 2 hours and 20 minutes long and that the judge was surprised at the fact it was so short; it contained no detailed analysis of the documents before the jury in contrast to the very detailed defence case. We say no more than that we can understand why the Crown made the closing speech in the way it was. We can also understand the reasons for a more detailed defence speech with its emphasis on the deep involvement of Mr Tutton in the conspiracy and his alleged deception of the appellant in relation to the use of PAE.

The issues on the appeal

[22]We turn to the issues raised on the appeal. The Full Court gave leave on the issues relating to the failure to put the defence case and the fairness of the summing up.[23]On 12 March 2009, fresh counsel (not counsel instructed at the trial or on the hearing of the appeal) submitted to this Court further grounds of appeal in which it was contended that the appellant did not receive a fair trial due to the inability of the Crown properly to discharge its duty with regard to disclosure in respect of the documents held by the South African police and other investigation services in South Africa. An application was made for leave to argue that further ground. Amplification was also made to the ground relating to information relating to the searches and the examination by HMRC of other consignments sent from South Africa to the United Kingdom alleged to be connected to the appellant.

(i) The history of the disclosure of the South African documents

[24]There was close co-operation between the South African police authorities and the Metropolitan Police in relation to the activities of the appellant in the United Kingdom and South Africa and the activities of Mr Tutton and Mr McKinnon. That co-operation began in June 2006 before the discovery of the consignment of the container carrying the cannabis when it was learnt that the appellant was travelling to South Africa. Agreement was reached that information would be shared and surveillance would be carried out on South African based persons as well as the appellant during any visit to South Africa. When the appellant visited South Africa in June 2006, as we have set out, he was kept under surveillance and his association with Mr Tutton and Mr McKinnon reported.[25]In September 2006, three officers, including Detective Inspector Turner and Detective Sergeant Floyd from the Metropolitan Police, visited South Africa to strengthen those links.[26]After the arrest of the appellant the investigation of the case involved close cooperation with the South African Authorities who were conducting their own investigation and gathering materials and evidence for the prosecution of Mr Tutton, Mr McKinnon and Mr Smith. The initial information provided to us in relation to what had happened was far from satisfactory and so a further statement was made by Detective Inspector Turner and Detective Sergeant Floyd; Detective Sergeant Floyd also gave evidence to us and was cross examined on behalf of the appellant. We are satisfied from the evidence that the investigation was not a joint investigation. A summary of what happened is: i) In November 2008, the Crown Prosecution Service (CPS) issued an International Letter of Request (LOR) dated November 2006 under Article 9 of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1998 (the Drugs Convention). ii) The LOR was for the most part specific in the requests it had made for evidence in relation to certain matters, but it contained a general sweep up request of “any other evidence which would be of use to the investigation or which is known to the South African Authorities in relation to the facts included in this [LOR].” iii) Between 21 January 2007 and 1 February 2007 Detective Inspector Turner and Detective Sergeant Floyd visited South Africa pursuant to the LOR. iv) It is clear that during that visit both officers conducted, under the supervision of the South African authorities, a full review of all the material held by the South African police in relation to the investigation. That review was carried out to obtain the evidence sought in the LOR and to ensure there was nothing held that could undermine the prosecution or assist the defence in the proceedings in the United Kingdom. v) The review included all the material held by the South African police after the arrest on 4 October 2006 of Mr Tutton and Mr McKinnon – the prosecution file (or docket) and bags of unused material. Although about two thirds of the requests set out in the LOR had been met by the conclusion of the visit and the South African authorities permitted the two officers to obtain copies of documents within the scope of the LOR and to have those sent back to the United Kingdom, the South African authorities would not permit the officers to copy or make notes of other documents or to list them in a schedule. vi) Although the officers were there for a number of days, we understand that they very properly followed this prohibition to the extent that they did not make notes when they finished with the South African authorities during the day. The South African authorities’ reason for the position they adopted was that they did not want to compromise their prosecution of Mr Tutton, Mr McKinnon and Mr Smith. vii) The officers recalled, however, that they viewed an observation file and report made on the appellant, Mr Tutton, Mr McKinnon and others – a bulky document which the appellant’s newly instructed solicitors obtained long after the trial from the docket held by the South African court. The observation report sets out the detailed movements of the appellant during his visit in June 2006 and makes it clear that the log was made as a result of the attachment of a tracking device to a car. The report shows the appellant meeting Mr Tutton and Mr McKinnon, going to hotels, golf courses and other such places but not visiting either the premises at Gillets Road or at Constantia Park or at Tongaat during the course of that visit. The report also set out subsequent surveillance of Mr Tutton, Mr McKinnon and Mr Smith. viii) A statement was provided under the LOR by Peter Mollison, a Superintendent in the South African police, on 1 February 2007 in relation to the covert surveillance undertaken in relation to the appellant. This statement made it clear that he was in possession of the surveillance reports as well as photographs taken during the period of the appellant’s visit to South Africa between 29 June 2006 and 5 July 2006. A similar statement was made by Captain Ford dealing with the surveillance of Mr Tutton and Mr McKinnon at 18 Gillets Road. ix) These statements were served on the defence on 26 April 2007. x) At all times thereafter contact was maintained between the South African police and the police officers conducting the investigation in the United Kingdom. A further visit was made by another police officer in May 2007 in connection with financial investigations. He received further documentation which was brought back to the United Kingdom and served on the defence.[27]The disclosure of material in the possession of the South African authorities was conducted thereafter as follows: : i) On 21 June 2007 the appellant’s defence statement was served on the prosecution. It set out in general terms the nature of the defence and made requests for disclosure. ii) The requests for disclosure included observation evidence in South Africa and details of all information and documents that the South African authorities had not handed over to the UK investigation team. iii) The police officers who had reviewed the files in South Africa in January 2007 tried to recall from memory what they had seen in South Africa. They could recall nothing that they thought would assist the defence case or undermine the prosecution; an enquiry was made of Superintendent Mollison as to whether the position of the South African authorities had changed and was told it had not. No further LOR was issued. iv) The Crown’s response to the defence statement and the request for disclosure was served on 19 July 2007 in which it was stated that all the observation logs had been served and that the prosecution was not in possession of the South African police file in relation to Mr Tutton, Mr McKinnon and Mr Smith. In respect of the details of the information and documents the South African authorities had not handed over to the UK investigation team, the Crown’s response was “nothing to disclose”. In the light of what is now known the response was a most unsatisfactory document. v) An application was made on the appellant’s behalf in writing on 19 July 2007 under s.8 of the Criminal Procedure and Investigations Act 1996 (CPIA). The application contained a detailed request for disclosure, seeking in particular the extent of the surveillance operation in South Africa and confirmation that the Crown had satisfied themselves that there was nothing in the documentation in South Africa relating to the appellant or to Mr Tutton or Mr McKinnon that could undermine the prosecution case or assist the defence. The application stated:
“It is submitted the disclosure process has not been conducted effectively without the prosecution obtaining both the used and unused material in South Africa, particularly if they wish to rely on some of the documentation obtained there. The exercise should not be selective if the documents seized have an explanation or may have a different interpretation. The unused material schedule rather unusually in this type of case has no South African items upon it at all.”
The points were amplified in the skeleton argument dated 22 July 2007 that was used on the application made to the Judge. vi) Apart from the statements of Superintendent Mollison and Captain Ford which had been served on the defence in April 2006, there was, as we understand it, no written response to the application. We were told by Ms Canavan, who appeared at the trial and before us, that it was made plain to the appellant’s legal team at trial that the South African authorities would not hand over any papers other than those that had been served by the Crown. It is very unfortunate that we had no written record of that statement, but after enquiry of the appellant’s trial counsel, Ms Canavan’s explanation was not disputed. vii) It appears that it was then agreed that the issue in relation to the surveillance of the appellant would be covered by admissions which were made in these terms:
“On 29 June 2006 [the appellant] arrived at Durban Airport, South Africa where John Tutton meets him at the terminal. They then drive to the Protea Hotel, Umhlanga Rocks. There is no evidence that [the appellant] was either at Gillets Road or at the David Whitehead Complex in Tongaat during his visit to RSA between 29 June and 8 July 2006. ”
It appears that matters were left there. Although Captain Ford and Superintendent Mollison of the South African Police had provided the statements to which we have referred at paragraph 26.viii), no application was made to call them, though they were, we understand, fully bound witnesses. Their statements were, we understand, read. viii) A little later during the trial Senior Superintendent Laartz and Superintendent Meedings of the South African police came to the United Kingdom. They brought with them a portion of the South African case file and documents in relation to identification procedures. Superintendent Meedings gave evidence. The documents were shown to the appellant’s team at trial by Superintendent Laartz. There is no record of what was brought and we were told that neither counsel for the prosecution nor anyone from the CPS or police team was present when the appellant’s counsel examined the file. ix) On 12 October 2007, after the conclusion of the trial, Superintendent Laartz, accompanied by Superintendent Meedings, brought with them further papers including the prosecution file in connection with a LOR from the South African authorities to the United Kingdom authorities for evidence to be used in the South African proceedings. The papers were examined by the police officers who had been to South Africa. We were told that nothing was identified that could have undermined the prosecution of the appellant or could have assisted the defence case. x) In December 2007 new sensitive material was brought to the attention of the police officers by the South African authorities. The material was examined by the police and we were told it did not undermine the prosecution of the appellant or assist the defence.[28]It is a matter of regret that no one attempted to itemise the documentation brought to the UK or make any proper record in writing of what happened contemporaneously during or after the trial.[29]In November 2008, Mr Hughman, the solicitor instructed by the appellant on the appeal, visited South Africa and inspected the prosecution file at the offices of the lawyer who had represented Mr Tutton, Mr McKinnon and Mr Smith. The file included the surveillance report to which we have referred covering the surveillance of the appellant, Mr Tutton, Mr McKinnon and Mr Smith from 29 June 2006 to 6 October 2006. (ii). The contentions on the appeal[30]Although it was common ground that the Crown had an obligation of disclosure in respect of the material held by the South African authorities, not only was the nature and extent of that obligation in issue, but also whether any breach was such that the appellant had not had a fair trial or the conviction was unsafe. It was contended on behalf of the appellant that: i) It was the Crown’s duty to have examined the whole of the South African materials from the time the police force in South Africa began their enquiries about the appellant and made available any documents that undermined the prosecution case or assisted the defence. Without prejudice to the generality of the information that should have been disclosed, there were three particular matters which the appellant had so far identified – the failure to disclose the surveillance report on the appellant and Mr Tutton and Mr McKinnon, any other surveillance information about Mr Tutton and Mr McKinnon and any information about a South African informant. ii) When the defence was served, a further request should have been made to the South African authorities to examine the material they held. If the South African authorities had not agreed, the procedures in Article 7 and the dispute resolution mechanism under Article 32 of the Drugs Convention should have been invoked. iii) The judge was never told the true position. If he had been, he could have given consideration as to what steps to take to ensure that the proceedings were conducted fairly; one of the decisions he could have made was to adjourn the trial until after the proceedings against Mr Tutton, Mr McKinnon and Mr Smith were concluded so that all the South African material could be available. iv) The failure was so serious that the appellant had been deprived of information which was essential if he was to have a fair trial.[31]The Crown contended that they had fully complied with their disclosure obligations: i) No duty arose to disclose any documents other than those supplied under the LOR; the material examined by the United Kingdom police officers in South Africa was not material that had to be disclosed. ii) The police and the CPS had discharged their duties to pursue all reasonable lines of enquiry in relation to material held by the South African authorities and take all steps they reasonably could in relation to obtaining the material. Given the position taken by the South African Authorities, there was nothing further that they could have done. iii) The appellant’s team had been provided with a great deal of information from South Africa and, in particular, the existence of the surveillance report had been made known. There were no grounds for contending that the appellant had not had a fair trial or the conviction was unsafe.

The Crown’s general obligations of disclosure

[32]The general duties of the Crown, whether through the police, other investigating agency or the prosecutor, in relation to disclosure in criminal proceedings are set out in the CPIA, as amended. However the CPIA makes no special provision in relation to material held by individuals or companies overseas or by foreign governmental authorities or material that may be examined overseas in the course of the investigation. Neither does the Code made under the Act nor the Attorney General’s Guidelines of 2005, but the Code and the Guidelines contain provisions which are of assistance in the delineation of the Crown’s duty. i) The Code provides at paragraph 3.5:
“In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into, and in what manner.” ii) The Guidelines provide at paragraphs 51-54: “51. There may be cases where the investigator, disclosure officer or prosecutor believes that a third party (for example, a local authority, a social services department, a hospital, a doctor, a school, a provider of forensic services) has material or information which might be relevant to the prosecution case. In such cases, if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused prosecutors should take what steps they regard as appropriate in the particular case to obtain it. 52. If the investigator, disclosure officer or prosecutor seeks access to the material or information but the third party declines or refuses to allow access to it, the matter should not be left. If despite any reasons offered by the third party it is still believed that it is reasonable to seek production of the material or information, and the requirements of section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 or as appropriate section 97 of the Magistrates Courts Act 1980 are satisfied, then the prosecutor or investigator should apply for a witness summons causing a representative of the third party to produce the material to the Court. 53. Relevant information which comes to the knowledge of investigators or prosecutors as a result of liaison with third parties should be recorded by the investigator or prosecutor in a durable or retrievable form (for example potentially relevant information revealed in discussions at a child protection conference attended by police officers). 54. Where information comes into the possession of the prosecution in the circumstances set out in paragraphs 51-53 above, consultation with the other agency should take place before disclosure is made: there may be public interest reasons which justify withholding disclosure and which would require the issue of disclosure of the information to be placed before the court.”
[33]The general summary of the duty in relation to material overseas is expressed, in terms of the investigator’s duty, at paragraph 7 of the Chapter of the CPS disclosure manual dealing with international disclosure issues (chapter 35) in these terms:
“Under paragraph 3.5 of the Code the investigator should, in conducting an investigation, pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances.”
This manual is a service level agreement between the police and the CPS and this paragraph deals only with the duty of the investigating authority.[34]In R v Alibhai [2004] EWCA Crim 681, this court considered the Crown’s disclosure obligation in respect of material in the possession of a US company and the FBI who had been assisting the prosecution and had produced a considerable amount of material. After referring to the paragraphs of the November 2000 guidelines which were the predecessor to paragraphs 51-54 of the Attorney General’s guidelines of 2005 and to the assumption that the prosecutor’s obligation was triggered, the court said. “63. …. the prosecutor is not under an absolute obligation to secure the disclosure of the material or information. He enjoys what might be described as a “margin of consideration” as to what steps he regards as appropriate in the particular case. If criticism is to be made of a failure to secure third party disclosure, it would have to be shown that the prosecutor did not act within the permissible limits afforded by the Guidelines. 64. In saying this, we are not ruling out the possibility that in an extreme case it might be so unfair for a prosecution to proceed in the absence of material which a third party declines to produce that it would be proper to stay it, regardless of whether the prosecutor is in breach of the Guidelines. ….. However, in so far as [the appellant], suggests that the trial was unfair because of breach of the Guidelines, it is important to bear in mind the limits upon what was required of the prosecutor under the Guidelines.”[35]The 2005 guidelines are more prescriptive than the 2000 Guidelines and the obligation of the Crown more explicit. In our view, the provisions of the Code and the 2005 Guidelines, although expressed in a domestic context, make clear the obligation of the Crown (whether investigator or prosecutor) is to pursue reasonable lines of enquiry in relation to material that may be held overseas in states outside the European Union; we do not deal with the position of material within states of the European Union as the legal regime is different. If it appears that there is relevant material, then the Crown must take reasonable steps to obtain it, either informally or making use of the powers contained in the Crime (International Co-operation) Act 2003 and international conventions. Relevance for this purpose is encapsulated in the observations of Lord Bingham in R v H, [2004] UKHL 3 at para. 35:- “If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties’ respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted…. Neutral material or material damaging to the defendant need not be disclosed.”[36]However, it is self evident that where there may be material relevant in that sense overseas outside the European Union, the power of the Crown and the courts of England and Wales to obtain material is limited. Essentially, if informal requests for the material are declined, the powers are limited to what is set out in the Crime (International Co-operation) Act 2003 and in relevant international conventions, such as the Drugs Convention. There may be cases where a foreign entity will simply not make the material available, a foreign court will not compel production under a Letter of Request and steps under the relevant convention will not produce the documents. There may be other cases where the authorities of a foreign state, though willing to show material to officers acting on behalf of the United Kingdom, will not allow the material to be copied or otherwise made available and the courts of the foreign state will not order its provision.[37]There cannot, for these reasons, be any absolute obligation on the Crown to disclose relevant material held overseas outside the European Union by entities not subject to the jurisdiction of these courts; the position is quite different to the position where the information is held in the United Kingdom or by a person amenable to the jurisdiction of these courts. As Sir Igor

Judge said in R v Khyam [2008] EWCA Crim 1612 at paragraph 37:

“The prosecuting authorities in this jurisdiction simply cannot compel authorities in a foreign country to acknowledge, let alone comply with, our disclosure principles.”
The obligation is one to take reasonable steps. Whether the Crown has complied with that obligation is for the courts to judge in each case on the provision of full information to the court. It is not necessary for us to decide whether the Crown any longer has the margin of consideration referred to in Alibhai.[38]Thus, for example, if officers of the United Kingdom Government, whether they be police, another investigating authority or the prosecutor, are allowed to examine the file of a police or investigative force in a foreign sovereign state, but are not allowed by the authority in that foreign sovereign state to take copies or notes or list the documents held, then there is no breach by the Crown in its duty of disclosure by reason of its failure to obtain or list such documentation, provided reasonable steps have been taken to try to obtain the documents or as much information as can be obtained about them.[39]It is, however, important that the position in such a case is clearly set out in writing so that the court and the defence know what the position is. The police and prosecuting authorities in the United Kingdom may not be able to complete the requisite lists, but it is their duty to record and explain the position and set out, insofar as they are permitted by the authorities of the foreign sovereign state, such information as they can and the steps they have taken. Where they are not permitted to disclose everything that they know, then that fact must be made clear on the documentation provided to the court so that the court can consider what to do.[40]Although it is clear that the Crown should in the present case have kept written contemporaneous records (other than in relation to the inspection in South Africa where they were not permitted to do so) and set out what the position was in writing for the judge, we are satisfied, on the evidence produced to this court, that there was no breach by the Crown of its obligations of disclosure, despite the regrettable failure to record the position for the judge. All reasonable steps to obtain the material were in fact taken; it is clear from the account that we have set out that every effort was made and the defence eventually made aware of the position and provided with more documents when the police from South Africa visited. We do not consider that the Crown was obliged to take any further steps under the Drugs Convention. No issue of public interest immunity arose; that might well have arisen if the material had been provided to the Crown, but it was not.

Inspection on behalf of the prosecutor

[41]It is necessary to refer briefly to the Crown’s alternative contention that it was not under any duty under the CPIA to disclose the material inspected by the police officers in South Africa. In summary the argument was that no duty arose under s.3 or under s.7A, as these sections provide that a prosecutor is only obliged to disclose prosecution material - that is to say material in the prosecutor’s possession or which came into his possession or which he had inspected in pursuance of a Code operative under the Act. This was because it was the police and not the prosecutor who had inspected the material in South Africa. Nor did a duty arise when an application was made by the appellant; even though there was the wider definition in s.8(4) or prosecution material, the material inspected by the police was not prosecution material as the prosecutor was not allowed to inspect it under a Code made under the Act. Furthermore, although the Crown Prosecutor in charge of the case had issued the LOR and the inspection by the police officers to South Africa had been under the LOR, the officers were, when inspecting the material, acting as investigating officers and not as agents of the prosecutor. We were told that this distinction between police and prosecutor was very carefully drawn by prosecutors when engaged in considering material held overseas, even under LORs issued by a Crown Prosecutor. It was the position adopted by the CPS in such cases that if the material was material inspected by the police, there was no duty to disclose it, but that if it was inspected by the prosecutor, there was a duty to disclose even if the overseas authorities would not permit it to be released for disclosure.[42]It is perhaps difficult to understand how a distinction can properly be drawn between police and prosecutor when acting overseas under a LOR. However, in the light of our conclusion on the extent of the obligation of the Crown in relation to documents held overseas outside the European Union by entities not subject to the jurisdiction of these courts, it is not necessary for us to consider this further.

No unfairness which would require a stay

[43]At paragraph 64 of Alibhai, the question was raised as to an extreme case where it might be so unfair for a prosecution to proceed in the absence of material which a third party refused to disclose so it would be proper to stay it. Some argument was addressed to us on the refinement of this observation, but it is not necessary for us to consider the arguments as in this case the position is clear.[44]No application was made to stay the proceedings in this case and, in our judgement, it is too late to make such an application now. After the statement of Superintendent Mollison was served and the defence were told that the South African police would not make the documents available, the matter was resolved in the manner we have set out and it cannot be re-opened now. In any event, even if that were not the case, plainly there would be no ground to contend that the Crown were in breach of their obligations of disclosure in this case for the reasons we have given. We are also satisfied that there is no informant evidence in South Africa. Furthermore there is nothing at all we have seen or been told that would in any way begin to amount to evidence that a fair trial of the counts against the appellant did not take place. Moreover, even if no further information was provided by the South African authorities in the retrial we have ordered, nothing we have seen suggests that a fair trial of the appellant cannot take place. There was and is no basis for a stay.[45]This ground of appeal fails.[46]It was clear that HMRC had examined shipments 3, 12, 13, 16, 19, 20, 21 and 25; these examinations were carried out principally by x-raying or scanning the containers. Some form of examination appears to have taken place in respect of container 17. It was unclear whether an examination had taken place of container24. The only examination of which any detailed evidence was given, apart from the container 26 which was found to contain cannabis, was in relation to container25. This was given by reading the statement of Mr Currie-Cathey, an agent of HMRC. A scan image operator had identified a dense area within the load. The container was opened and a space was made to access the area shown as dense on the scan. The boxes were found to contain furniture. When the examination reached the denser area it was found that the tables were stacked width ways as opposed to the length ways packing that had been used elsewhere. The officer concluded that the stacking of the boxes in a different direction had caused the denser area on the scan.[47]It was the appellant’s case that, as many of the containers had been examined by HMRC, the jury could be satisfied that the shipments had not contained any illicit substances; they should reject the suggestion of the Crown to the contrary.[48]It was clear that the Crown wished to call evidence to show that, although a container might be examined by scanning or x-ray, such examination methods did not mean that the containers were free of illicit substances.

The judge was told on 25 July 2007 by Ms Canavan:

“I asked for statements from customs indicating whether, if something has been scanned, does that mean there are no drugs in it? Customs will neither say one way or the other. They refuse to cooperate, insofar as this particular subject matter is concerned. They will not give us an answer in relation to this quite astonishing position. Because your Honour, obviously the fact that they scanned a container and it goes through does not mean that there is nothing in it, but they won’t say that in evidence because they feel it might undermine the scanning process at ports. So your Honour, there won’t be anybody coming to say that, because they refuse to say it; even though privately they might admit that that is true.”
[49]On 8 August 2006, during the course of the defence case, counsel for the appellant raised the issue before the judge, pointing out that in the absence of evidence from HMRC as to the reliability of examinations and any disclosure in relation to the nature of the examination, the jury could take into account the fact that the containers had been examined when considering whether any of the shipments previous to container 26 had contained cannabis or cocaine; that it was not open to the Crown to suggest that the examinations might not have revealed drugs, as they had not called any evidence about the reliability of examination techniques. In response to a submission made by counsel for the co-defendant, the judge said that the Crown had left itself in a seriously weakened position by not adducing such evidence.[50]When the judge came to sum up in relation to this issue, he referred to the contention made by the defence that, if containers were scanned or x-rayed and passed by HMRC, then it could be assumed by the jury that the containers contained no drugs; that the Crown could not, as it had called no evidence about the level of detection of such equipment, ask the jury to come to any other conclusion. He then said:
“Ladies and gentlemen, in a perfect world, that indeed may well be correct but it may be that the customs would be loath to detail how they do things and what measure of success they enjoy in deploying those initiatives. Investigating authorities guard jealously indeed the manner, means and methods and indeed the techniques they employ. If the information falls into the hands of the enemy, as it were, then measures to counter those initiatives can be deployed and that discretion applies also to the measures of success in their operations. If a criminal enterprise knew, for example, that an X-ray technique was only successful in detecting a modest number of cases and failed in a significant number of others; or, if in fact, criminals discovered that the operation detected one hundred per cent successfully, then criminals might well modify their approach to importation.”
[51]He then referred to evidence that in South Africa the packing of the contents of container 19 (which had been scanned or x-rayed by HMRC) had been changed, the wooden structures modified and numbering put on and the Crown’s contention was that this pointed clearly to the fact that drugs were in the consignment. He concluded a little later:
“We go on Ladies and Gentlemen and say this; the Crown also are entitled to say: Is it likely that all of the ones which were x-rayed were the ones which did not contain drugs. Are you interested by that particular good fortune?”
[52]Although it was permissible in our view for the judge to point to the evidence from South Africa and elsewhere that suggested that the containers prior to container 26 contained drugs, including those that had been x-rayed, he should not have set out what he did in respect of the limitations of the scanning and other methods of inspection employed by HMRC. He knew that HMRC had refused to give evidence to this effect; he had accepted that it was a weakness in the Crown’s case. He should not have filled it in the way he did.[53]This ground of appeal is therefore well founded.[54]A further part of this ground of appeal was a contention that there had been insufficient disclosure in relation to the containers which were x-rayed or otherwise investigated. We were told that the prosecution had made disclosure of all the documents which the police and CPS had. It is apparent that no attempt was made to obtain further materials from HMRC in view of their refusal to help.[55]We enquired of the Crown why HMRC had refused to cooperate. At the hearing in June 2009 we were provided with a short explanation by counsel instructed on behalf of HMRC. HMRC were asked in February 2007 for a detailed statement in relation to the workings and parameters of the scanner. In March 2007, HMRC told the police that they would not be prepared to provide evidence about how scanning was carried out, the effectiveness of the technique, detection rates and similar matters. The matter was not taken further. We were told that the present position of HMRC was that, although HMRC were prepared to help the police and the prosecuting authorities, they would not want to disclose information that would assist in the concealment of goods, including information as to the success of scanner procedures. They would seek public interest immunity in respect of it. They were prepared to say that a scan would not identify the type of material being looked at and the fact that a scanner did not indicate the presence of a concealed item, that did not mean one was not present. It is unfortunate that their readiness to give that evidence was not made clear to the police and CPS.[56]Again what happened in this trial speaks for itself. The lack of proper cooperation between these agencies of the Crown should never have happened; neither the prosecutor nor the judge should have been placed in the position that they were placed in. Issue 3: Was the defence case properly put before the jury and the summing up fair and balanced?[57]Although the appellant was charged with two conspiracies, the trial had proceeded on the basis that as regards the appellant there was, in effect, to be the same verdict on each. It is clear, as we have stated, that there was no dispute at trial that there had been a conspiracy to import cannabis and cocaine. The sole issue was whether the appellant was a party to the conspiracy, as the judge made clear in his summing up.[58]It was contended by the appellant that the judge had failed to put the defence case clearly before the jury and to the extent he had done so, his summing up was unfair as he had interspersed the evidence of the appellant with questions that undermined that defence.[59]It was suggested that the background against which the judge’s approach to the summing up had to be judged was the circumstances which we have set out at paragraphs 19 to 20 about the case not being ready and the observations about the speeches.[60]We asked counsel for the Crown where in the summing up a clear statement of the defence case was to be found. It was accepted that there was no place where it had been clearly put. What the judge had done was to remind the jury at various stages during his review of the evidence what the defence case was. We were taken to the passages where the judge had done this. i) After reviewing the evidence of the course of the shipments, the judge made clear that the Crown’s case was that, contrary to the appellant’s assertions that he had left the importation business at the beginning of 2004, he was connected to transactions later than that. ii) He set out the reasons that the appellant gave for going into business with Mr Tutton and Mr McKinnon and his use of PAE. iii) He set out the reasons why the appellant stated he rented the premises at Constantia Park and why the containers were diverted there. iv) He set out the appellant’s evidence that he had nothing to do with PAE after early 2004 or the use of Unit 3C at Denton’s Wharf or Gillets Road or Tongaat or Tonlee Glass, or Megatrade. v) He set out the appellant’s explanation of the boot bag.[61]But nowhere was the defence case clearly set out. The judge could have done so after he had summarised the case for the Crown that the first importations to PAE, prior to the use of Constantia Road, were dry runs and a similar pattern was used when P&G became involved. It would have been far better if he had done so.[62]Nonetheless this would not have been a matter that would have given support to the contention that the judge failed to sum up the case fairly, if, on the occasions (which we have set out above) where the judge dealt with the defence case, those passages had not immediately been followed by questions that appeared to undermine the appellant’s evidence. Three examples of such questions which appeared to undermine that evidence will suffice. i) After setting out the appellant’s case that he did not know that PAE had been struck off, the judge said:
“This is an area, ladies and gentlemen, of the evidence in relation to which you will have to pause and carefully examine: If Mr Flook knew that Play Away Events was no longer a registered company and had been struck off as a casualty, does that assist you in deciding Mr Flook’s later intentions? If his intentions really were honest and honourable from the outset would he ever have used knowingly a defunct company? If, on the other hand, the purpose was to import drugs then the status of the company really, you may think, would be absolutely relevant?” ii) After setting out the appellant’s explanation of the circumstances in which he received the Megatrade invoice from Mr Hills, he said: “Again, ladies and gentlemen, this is an area you will have to examine very carefully indeed. We know that Hills was Tutton’s man, do we not, at that stage; dealing with the UK side of the conspiracy business, the conspiracy to import drugs. He would know, you might conclude, that Play Away Events (as this document betrays) was being used in a pivotal role in these importations and that factor must have been known to Mr Hills and that factor was deliberately, accordingly to Mr Flook, being kept away from him. If that is right, ladies and gentlemen, ask yourselves why, if that is the case, was Hills risking that Mr Flook might find out about the deception to which they had subjected him in relation to the use of Play Away Events (Mr Flook’s company) in the course of that exchange. You have to ask yourself: is that explanation presented and advanced by Mr Flook one which is credible? Why, you must ask yourselves, would Mr Hills be so silly, I suppose is the appropriate word, to volunteer a document to Mr Flook which might enable Mr Flook to discover the deception which was being practised on him? Mr Flook went on and said to explain this aspect he telephoned John Tutton to seek an explanation why on the face of it the document had been raised which was using Play Away Events quite wrongly; in a transaction which you will see I think was valued at about £24,512, about £25,000, and a transaction in which merchandise was being routed through the Tilbury Docks. Why should that exist? Mr Flook explained that it was simply a pro forma and that he was not using Play Away Events at all. Again, ladies and gentlemen it is your duty to look at that explanation. Examine it carefully, would an explanation you may think as bland as that satisfy Mr Flook. That document details Mega Trade which Flook denies knowing anything about at all. Ask yourselves is the explanation credible?” iii) In dealing with the appellant’s evidence in relation to the renting of the premises at Constantia Road and using those premises to pack parasols into the containers, he said: “Ladies and gentlemen, just pause and think about the parasols. The parasols explanation may, I emphasise may, have more importance than at first was appreciated. You see, the parasols and the cushions would be relevant, you may think, to the garden furniture: as opposed to the dining room tables which Mr Flook said that he simultaneously imported. No one seems to have seen any parasols or indeed any cushions. Large quantities of garden furniture were, in fact, imported and there were, you may think, every reason why (if the garden furniture remained at Denton’s Wharf) nothing was found there. You know that certain items were kept under tarpaulins but no one seems to have seen at any stage the parasol or a cushion. Nor indeed is there any documentation apparently relating to parasols: which you will recognise immediately does contrast quite conspicuously to the copious documentation we have seen in relation to the acquisition of mirrors and garden furniture in South Africa. Just a thought.”
[63]It is not necessary for us to set out further examples, but on a reading of the summing up as a whole, we regret to conclude that it did not fairly put the case before the jury. The defence case was not clearly put and was in many cases where put undermined by questions of the type we have set out above.[64]It is, of course, permissible, indeed desirable, for a judge to set out searching questions the Crown raised on the defence case; the appellant’s defence plainly called for the most searching questions. However the judge did not approach the summing up by setting out the defence case fully and fairly before subjecting that case and the prosecution case to an analysis by raising questions that the jury might wish to consider. Instead he interspersed the appellant’s evidence with questions of a most pointed kind; as in the first of the illustrations we set out in paragraph 62i), the questions were not put in a manner to suggest that the Crown as opposed to the judge was advancing these points. We consider therefore that this ground of appeal is well founded.

Conclusion

[65]As we have set out above, the appellant faced a formidable case. His defence depended to a very large extent on the jury accepting his explanation of a number of telling points that were made against him; the documentation was almost entirely against him. In those circumstances where the judge provided evidence which was not before the jury in relation to HMRC’s examination and summed up the case in a manner that did not fairly put his case before the jury, we have reached the conclusion that we cannot regard the conviction as safe.