Malook, R v [2011] EWCA Crim 254

[2011] EWCA Crim 254Case No 2009/01162/B2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SHEFFIELD CROWN COURT
HIS HONOUR JUDGE KEEN QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/02/2011
Before
LORD JUSTICE THOMASMR JUSTICE WILKIEMR JUSTICE NICOL
Between
ReginaRespondentSadakat Ali MalookAppellant
Mr S Kamlish QC and Mr G N Hussain for AppellantMr T Capstick for RespondentHearing Hearing dates: 2 & 3 February 2011
Judgment

Introduction

[1]This application for leave to appeal against sentence arises out of the evidence adduced before His Honour Judge Keen at a Newton hearing at Sheffield Crown Court over 4 days between 3 and 6 February 2009. The Newton hearing took place after the appellant had pleaded guilty on 15 September 2008 to conspiracy to supply a Class A drug and to possession of criminal property and the Crown had rejected his basis of plea. After hearing the evidence, the judge held, accepting the Crown’s case, that the appellant was at the head of an enterprise to store, prepare and distribute heroin throughout the UK between 1 April 2007 and 18 April 2008; he rejected the account put forward by the appellant and accepted that of the Crown. He sentenced the appellant to 21 years imprisonment, less time on remand. Subsequently, on 22 January 2010, a confiscation order was made; the benefit was assessed at £4.038m; the available assets were assessed at £196,039.34 and an order made in that amount.

(i) The issues on the appeal

[2]The grounds of appeal underwent many changes but in the grounds as finally advanced during the application there were two primary bases on which it was said that the findings made by the judge at the Newton hearing could not stand: i) There had been a deliberate withholding of documents by the police and a deliberate failure to disclose. This was a serious allegation amounting in effect to a conspiracy to pervert the course of justice. ii) The judge misapplied the evidence in relation to the appellant’s income and further evidence should be received by this court. (ii). An outline of the issues in the Crown Court[3]On 14 April 2008 the appellant was arrested at 62 Sturton Road, Sheffield along with Naveed Yaqoob. The police recovered heroin with a potential street value of £99,500 from the premises. It was plain from their search of the premises that it had been used as a drugs factory. When in custody the appellant gave his address as 64 Osgathorpe Road, Sheffield. This was a semi-detached house, the other part of the pair being 66. Both properties were searched by the police and the police found at 64 paperwork addressed to the appellant and at 66, a house in a dilapidated state, £70,725 in cash; two bullet proof vests were found at 64. The bank notes were found to have had diamorphine contamination greater than typically detected on bank notes. Naveed Yaqoob was sentenced to 13 years imprisonment.[4]In his interview after arrest and in his subsequent basis of plea, the appellant’s account was: i) Between 1 April 2007 and 19 April 2007 he had been a heroin user and participated by cutting drugs for onward distribution. ii) On 19 April 2007 he was sent abroad by his family to try and get clean; he spent the greater part of his time in Dubai. Whilst abroad he introduced potential property purchasers from Pakistan, Europe and the UK to Dubai-based property developers. He returned to the UK on 9 March 2008. iii) After his return he agreed with Naveed Yaqoob to mix and sell on a quantity of drugs belonging to Shoukat Yakoub which had been left over following the arrest of Shoukat Yakoub. iv) He was in a labouring role mixing the heroin and the cash he held represented payments received on behalf of himself and fellow conspirators.[5]In his interview he denied he was known as “D” or “Dax” and said his nickname was “Dakoo”; in his basis of plea, he accepted his friends sometimes referred to him as “D” and “Dax”.[6]The issues at the Newton hearing were: i) What was the role of the appellant in the conspiracy? The Crown contended he was at the head; the appellant that he was an employee. ii) How long had the appellant been involved in the conspiracy? The appellant contended it was limited to his time in the UK. The Crown had not disputed he was overseas between 19 April 2007 and 9 March 2008, but had contended he was involved throughout; as evidence of that the Crown pointed to the fact he had no visible source of income and must therefore be dependent on drug dealing. The judge considered the evidence put before him by the Crown on those issues; the appellant did not give evidence. The judge accepted the case advanced by the Crown.[7]The application to appeal was referred to the Full Court. A representation order was made for the appellant to be represented by Mr Kamlish QC in addition to counsel who had represented him at trial. For reasons we shall explain we grant leave to appeal.[8]We will first consider whether documents were withheld and whether there had been a deliberate failure to disclose; we will then consider the evidence in relation to the appellant’s income. In the light of our conclusions on those matters, we will consider the judge’s decision in the Newton hearing.[1]DISCLOSURE AND THE PROVISION OF DOCUMENTS[9]The case of the Crown for putting the appellant at the head of the drugs enterprise at the hearing relied on recordings of conversations with Shoukat Yakoub and others which had been made while Shoukat Yakoub was using his telephone at work in Sheffield as a customer sales representative of the Norwich Union. As we shall explain, Shoukat Yakoub was arrested by the Gloucestershire Constabulary in relation to a related conspiracy which was dealt with at Gloucester Crown Court.[10]The principal evidence relied on by the Crown to prove that the appellant was at the head of the conspiracy and was involved in it whilst he was abroad were references in the telephone conversations to “D” or “Dax”, a name by which the appellant, as we have stated, was known. It was the Crown’s case that the calls were illustrative of the appellant’s continuous involvement in the conspiracy in this way, though there was no reference to him by name and no telephone call between him and the other conspirators. It was the appellant’s case that “D” or “Dax” was not an uncommon abbreviation, there was at least one other “D” involved in the conspiracy; the “D” referred to in the telephone calls was not the appellant, that the “D” referred to in at least some of the calls was by inference in the UK (at a time when the Applicant was agreed to be abroad) and that on a close examination of one of the telephone calls, the participants referred, not to “D”, as the Crown alleged, but to “T” and there was another person in the conspiracy who was known as “T”.

(i) The allegations made in the appeal

[11]It was contended by Mr Kamlish QC on behalf of the appellant that the South Yorkshire Police had deliberately withheld documents and deliberately failed to disclose other documents which would have undermined the Crown’s case in relation to the telephone calls between Shoukat Yakoub and others between 4 May and 10 July 2007 on which the Crown relied. Tapes of these telephone calls had been obtained from the Norwich Union, and in circumstances which we shall describe, transcripts of some of the calls had been made both by the Gloucestershire Constabulary in connection with an investigation known as Operation Mendip, where the principal defendant was Shoukat Yakoub, and by the South Yorkshire Constabulary in connection with the investigation known as Operation Minx, where the principal defendant was the appellant. In some cases the same calls had been transcribed by both police forces.[12]The Gloucestershire Constabulary’s investigation had resulted in arrests in 2007 and a trial and other proceedings before HH Judge Tabor QC at Gloucester Crown Court. The appellant sought to adduce before the court documentation which had come to light after the Newton hearing to show that there had been a deliberate withholding of evidence and a deliberate failure to disclose what had been made available by the Gloucestershire Police. In the autumn of 2009 the appellant’s solicitors had obtained some of the documentation from those who had defended Shoukat Yakoub and had then obtained further documentation from the CPS in Sheffield. It was contended that if that documentation had been made available and disclosed at the Newton hearing before Sheffield Crown Court, the judge could not have found that the appellant was at the head of the conspiracy. The principal matters relied on were two: i) The deliberate suppression of a transcript of the telephone call at 11:40 on 23 May 2007 used at Gloucester. That transcript had been transcribed with a “T” whereas the same conversation in the Sheffield proceedings was transcribed with a “D”. The South Yorkshire police had the transcript and had deliberately suppressed it. ii) The deliberate failure to disclose the interviews of Dewey, one of the defendants in the Gloucester proceedings, even though the South Yorkshire police had it. This provided powerful evidence about “T” and the real “D” or “Dax”.[13]Although some of these matters were explicable by a lack of competence by those responsible for disclosure in the South Yorkshire Constabulary, the allegation in relation to the suppression of the transcript of the telephone conversation used in the proceedings in Gloucester and the non-disclosure of the transcript of Dewey’s interview was advanced on the basis that this was deliberate and dishonest behaviour which necessarily involved perverting the course of justice to secure a finding by the judge that the appellant was at the head of the conspiracy. (ii). The origins of the Gloucester proceedings and their course[14]It is therefore necessary to explain the Gloucester proceedings in a little more detail as these occurred first in point of time and the documents about which the allegations were made originated in those proceedings.[15]On 23 May 2007, those of the Gloucestershire Constabulary involved in Operation Mendip were keeping observations on a house in Gloucester connected with Harrison, one of those convicted in the Gloucester case. He was with Bobat, another person convicted in the Gloucester case; both were alleged to be distributors. Whilst they were under observation a third of the defendants in the Gloucester case, Dewey, arrived in a van which was found to contain heroin; he was the courier. When Dewey was interviewed he described the person who had given him the package containing heroin as “Shax” who was connected to another Asian called “Dax”. The interview contained: i) A reference to “T” as the man dealing with Harrison and that “T” was the Leicester end of the organisation covering Sheffield, Huddersfield and Wakefield. He had a phone number ending in 155. This was later shown to be associated with a man called Dutt who was in due course tried in separate proceedings in Gloucester Crown Court. ii) More details about “Dax”. (iii). The arrest of Shoukat Yakoub and the Norwich Union conversations[16]As a result of information Dewey gave about “Shax” officers were able to identify him as Shoukat Yakoub. His employers, the Norwich Union, were able to identify the telephone number he used in May 2007 and provide a list of all the calls he had made between 21 and 30 May 2007 which had been recorded on that number. Tape recordings of the calls he made on 22 and 23 May 2007 were obtained as was a call tracker analysis to cover the period 1 April to 18 May 2007. Shoukat Yakoub was arrested on 17 July 2007 after some of the tapes had been obtained.[17]Shoukat Yakoub pleaded guilty at Gloucester Crown Court to two conspiracies to supply drugs, the first in Gloucester and the second in Sheffield; he also pleaded guilty in respect of money found at his address. He was sentenced to 11 years imprisonment. Dewey also pleaded guilty and Bobat and Harrison were convicted at the end of November 2007.[18]Dutt was arrested subsequently; he had connections in Leicester where Bobat had lived for some years. It was the Crown’s case that he made arrangements with Shoukat Yakoub in Sheffield and Harrison in Gloucester, acting as the go-between with Dewey as the courier of the heroin. There was extensive evidence as to his involvement through a detailed analysis of telephone calls of the 155 number. (iv). The applications under s.23 of the Criminal Appeal Act 1968[19]Those representing the appellant sought to rely for their appeal on the documentation relating to the Gloucester proceedings; they wished the court to consider it under s.23 of the Criminal Appeal Act 1968. In the light of that documentation and the allegations made, statements were served by a number of police officers to explain what had happened. The Crown sought leave to adduce evidence from these witnesses as fresh evidence under s.23 to explain what had happened in the course of disclosure.[20]The statements made by the officers gave rise to justified further concerns. We have no doubt therefore that Mr Kamlish QC was amply justified in advancing a case of dishonesty and serious misconduct amounting to a conspiracy to pervert the course of justice (whether that case was made out is, of course, a different question and one to which we will return). In those circumstances, we considered that we should grant leave to appeal.[21]We heard de bene esse the evidence on this issue of three police officers, one from the Gloucestershire Constabulary and two from the South Yorkshire Constabulary; we also heard evidence by video-link of a civilian employee of the South Yorkshire Constabulary who was on holiday at the time of the hearing of the appeal. We consider that it was in the interests of justice under s.23 of the Criminal Appeal Act 1968, having regards to the submissions placed by the appellant before the court to consider the documents upon which he relies and to receive the evidence of these witnesses. (v). The telephone recordings obtained from the Norwich Union in early July 2007 and their transcription[22]The telephone recordings of the land line used by Shoukat Yakoub to which we referred at paragraph 16 above were obtained from the Norwich Union by DS Daniels of the Gloucestershire Constabulary in early July 2007; he gave evidence to us. Initially he obtained only tapes of the calls for 22/23 May 2007; these were then transcribed. His evidence in his statement made on 19 May 2010 was that the transcripts of these tapes were reviewed by him on 2 and 5 July 2007 and were placed on the file;[23]His statement was clear in stating that a “full copy” of the file was given to the South Yorkshire constabulary, but the transcripts of the phone calls on 22 and 23 May 2007 were not included, as they dealt specifically with the offences in Gloucester. The tapes were, however, provided.[24]His oral evidence was that he had not placed the transcripts of the telephone conversations on the file, but put them on the exhibits file, though the transcripts of the interviews were put on the file. The person to whom he had provided all the documents in relation to the matter was Mr Harpham, a civilian crime investigator employed within the Serious and Organised Crime Unit of the South Yorkshire Constabulary. DS Daniels had not given Mr Harpham the file, but only the transcripts of the interviews of Shoukat Yakoub and Dewey and an undated summary of the evidence produced by the police. He did not give Mr Harpham the witness statements of the interviews in the Gloucester proceedings. There was no date or record of when the documents which he had provided to South Yorkshire had been handed over, but it must have been after the arrest of Shoukat Yakoub on 17 July 2007 and before the preparation of the case summary by counsel on 27 September 2007.[25]The statement of DS Daniels to which we have referred was taken by Mr Harpham on 23 May 2010; Mr Harpham made a statement shortly afterwards on 3 June 2010; in that statement he said that he was given a “full working copy” of the Mendip file; he went on to say that this included transcripts of the telephone calls on 22 and 23 May 2007 giving the correct Gloucestershire reference number for those transcripts. Mr Harpham, however, made a second statement on 28 October 2010 explaining that this was “a mistake”, as he had confused the transcripts of the telephone calls with the transcripts of the interviews obtained at that time.[26]Mr Kamlish QC quite properly in the light of all the evidence put to both these witnesses that they had put their heads together to lie and that by mistake the truth was what was in the first statement of Mr Harpham. (vi). The obtaining of further telephone recordings[27]The obtaining of further tapes was dealt with largely in the evidence obtained and served prior to the Newton hearing. It was as follows: i) In August 2007, an employee of Norwich Union, prepared recordings of calls made from the number used by Shoukat Yakoub for the period 21 April to 18 May 2007; on 31 August 2007 the further tapes were passed to DS Daniels. On 6 September 2007 DS Daniels reviewed the calls on the tapes and produced six further tapes which contained only the relevant conversations, together with a schedule. On 12 September 2007 the tapes and the schedule were handed to Mr Harpham and by him to Detective Sergeant Anne Evans of the South Yorkshire police; she was then a constable and had the responsibility for overseeing the preparation of transcripts from tape recordings obtained from the Norwich Union. These were reviewed by her; she then arranged in November for transcripts of these tapes to be produced by a police constable who spoke Urdu; he did this by 11 January 2008. ii) In September 2007 Norwich Union prepared another batch of calls made between 23 May and 16 July 2007; these were sent by another employee of the Norwich Union directly to Mr Harpham on 22 October 2007. He handed them to DS Evans who reviewed them and gave them to the police officer for transcription when he had finished with the first batch of tapes. He returned the completed transcripts to her on 22 January 2008.[28]We heard evidence from DS Evans and a fellow officer, DS Tate, who at the time had also been a constable; they had joint responsibility as officers in the case, with DS Tate telling us he had the more senior role. Whether his evidence is a proper reflection of their joint position is immaterial; what is important is that DS Evans appears to have been primarily responsible for the preparation of the transcripts. She was plainly a careful and conscientious police officer, as was shown by the detailed schedule she worked on and by her clear and thoughtful answers to the questions she was asked in the course of her evidence. She was an impressive witness whom Mr Kamlish QC rightly accepted was telling the truth. We attach considerable weight to her evidence; she made clear that she would have asked Mr Harpham if transcripts of the tapes had been provided by the Gloucester Constabulary, as transcribing the tapes was time consuming and had involved taking an officer off front line duties. She could not recall the answer she got but she was under the impression that there was none.[29]DS Tate also made clear in his evidence that he was unaware that transcripts had been completed by the Gloucestershire Constabulary; he could not recall if he had made any enquiry. (vii). The provision of the transcript of Dewey’s interview[30]Although the transcripts of the interviews of Dewey had been provided to the South Yorkshire Constabulary, these were not made available to the appellant’s lawyers prior to or at the Newton hearing. In his second statement made for this court on 28 October 2010 to correct what was said to be the mistake in relation to the provision of the transcripts of the telephone conversations, Mr Harpham explained this as follows:
“I am strongly of the opinion that at that time and of present there was nothing in those papers which assisted the defence or undermined the prosecution.”
[31]In his evidence, Mr Harpham said, before he was asked, that this was yet another mistake which he would take on the chin. It had already been conceded by the Crown that the transcripts of Dewey’s interviews should have been disclosed. Mr Harpham was unable to explain why he had made a mistake. (viii). The supply of information to the Humberside Constabulary[32]There is one further matter to which we must refer before we set out our conclusions on the evidence. We were provided with details of an investigation into another nationwide drug dealing conspiracy in Humberside in the period October 2008 to June 2009, where it was alleged that the main offender was Mohamed Zaker Miah. The evidence to us was that the integrity of the disclosure regime in that case had led to the proceedings being stayed on the second trial of Miah; that is not material to us. What Mr Kamlish QC very properly raised was that one of the purchasers of drugs in that conspiracy was “Dak” or “Dax”. Those names appeared in the dealer’s book found in police searches. The case summary prepared by the Humberside police after referring to this said:
“Dax has been identified as [the appellant] (01.05.80) and in February 2009 he appeared at Sheffield Crown Court charged with serious drug trafficking offences. He was sentenced to 21 years imprisonment.”
[33]In a statement prepared for the court by Detective Constable Harding, the officer in the case in the Humberside investigation and subsequent trials, he stated that this was based on information received from the South Yorkshire Constabulary and had been included to try and place a status on Miah and the size of the organisation. It was accepted that the paragraph indicating that the appellant had been identified as “Dax” should not have been included. In the light of the allegations justifiably made in relation to the disclosure and documentation provided by the Gloucestershire Constabulary, Mr Kamlish QC sought to enquire how the information had been provided to the Humberside Constabulary. The evidence of DC Harding, in his statement and oral evidence was that, despite enquires, no record that had been found within the Humberside police as to how the information had been provided to them. His oral evidence to us was confirmed in a statement by Detective Inspector Killeen of the Humberside Constabulary. DS Evans and DS Tate gave evidence that there was no record in the South Yorkshire Constabulary as to who had provided this information.[34]In the circumstances, nothing emerged which assisted in the evaluation of the evidence given to us about the serious allegations made in this appeal. It, however, reinforced the concern of the court as to the standards adopted by the constabularies to proper record keeping in major investigations. (ix). Conclusion on disclosure[35]In arriving at our conclusions, it is necessary first to set out our findings in relation to the way in which disclosure was handled in these investigations. i) The issues relating to disclosure in this case related to documentation produced by the police in the course of investigations in contradistinction to pre-existing material seized by a police force. Proper record keeping in an investigation is essential to the integrity of an investigation, to public confidence in police investigations and the proper administration of justice. ii) These were large scale investigations into major drugs conspiracies, two of them alleged to be on a nationwide scale. It is therefore a matter of concern to the court that the records of three different police forces in relation to these investigations have the deficiencies we have set out. We appreciate that investigations of this kind involve intelligence and undercover work; we fully understand the need to protect such intelligence and undercover work and the systems in place to protect such work. However this cannot be at the expense of the keeping of proper records of an investigation so that the police can comply with the fundamental obligation of ensuring a fair trial of those apprehended by being able to account for the documentation created during the course of the investigation and by being in a position to produce material that undermines the prosecution case or assists the defence. iii) As we have said at paragraph 20, the appellant’s legal team led by Mr Kamlish QC had good grounds for raising the issues that they did in this case; the very considerable costs incurred in looking into the matters very properly raised has been caused in significant part by the inadequate record keeping of the three constabularies. iv) But the deficiencies in the conduct of this matter by the South Yorkshire Constabulary did not stop at deficient record keeping. We regret to have to conclude that Mr Harpham, though apparently trained in the duties of disclosure, had no understanding of the duties of disclosure. As we have set out at paragraph 30, as late as 28 October 2010, he maintained that the transcripts of interviews of Dewey did not have to be disclosed. v) This therefore appears to be another case where there have been serious problems in the handling of disclosure by a police force where what was in issue was investigative material as distinct from pre-existing documentation taken by the police into their possession or material covered by PII or third party or overseas disclosure where difficult issues can arise. As this court observed in Olu, Wilson & Brooks [2010] EWCA Crim 2975:
“Despite the volume of such material that a modern investigation generates and records, difficulties should not have arisen if the relevant issues had been identified and disclosure carried out in accordance with the CPIA and the Guidelines in a “thinking manner” …”
The court pointed in that case, at paragraph 44, to the need for the disclosure officer to be directed by the Crown prosecutor as to what is likely to be most relevant and important so that the disclosure officer approached the matter through the exercise of judgement and not simply as a schedule completing exercise. vi) In this case, as we have observed, the position was that the records were deficient and the disclosure officer plainly had no proper understanding of the obligations of disclosure. He did not have the training and competence to exercise the necessary judgement required of a disclosure officer. This was the fault of those much more senior to him who were responsible for the system. vii) There is a yet further matter. When the allegations of a failure to disclose were raised after the Newton hearing, it is a matter of regret that the South Yorkshire Constabulary failed to entrust the conduct of this matter to a senior officer who had not originally been involved. It was, in our view, wrong to have left this matter in the hands of Mr Harpham and the other officers. Much of the material relied upon quite properly by Mr Kamlish QC was generated by the way the matter was investigated and statements taken.[36]We have set these matters out as they are important to our conclusion on the central issue as to whether we find the conduct of DS Daniels, Mr Harpham and other more senior unidentified officers in the South Yorkshire Constabulary dishonest and having engaged in a conspiracy to pervert the course of justice by misleading a judge at a Newton hearing. i) Allowing for the fact that Mr Harpham gave evidence by video link whilst he was on holiday, we found his evidence and that of DS Daniels deeply unimpressive. Mr Harpham’s statements had been written without any proper care or without any proper understanding of his duties; he had no proper concept of record keeping or his duties as disclosure officer. DS Daniels’ descriptions of the way in which he filed documents were contradictory and did not make sense. ii) But should we conclude they were dishonest and had in effect conspired together to pervert the course of justice and deceive the judge and this court? iii) Their conduct has to be seen against the serious deficiencies we have outlined in sub-paragraphs 35.i) to 35.vii). We have concluded that, although the conduct of both was evident of a lack of competence or training for the tasks which more senior officers had entrusted them and that the systems within their forces had the deficiencies to which we have referred, neither was in our view dishonest. The exhibit references for the transcripts of the tapes in Mr Harpham’s first statement had been copied from the statement of DS Daniels. His explanation that he had muddled the transcripts of the interviews of Shoukat Yakoub and Dewey with the transcripts of the phone calls is in our view only credible because of his obvious lack of competence for the task given to him. DS Daniel’s explanation of his filing system was explicable by the failure to train him in proper record keeping in a serious drugs conspiracy. iv) They were both doing work for which they were not properly trained and for which they were not competent; that they had been placed in this position was the responsibility of those more senior to them. They were, however, not dishonest. v) Moreover, it is clear that Mr Harpham would never have acted on his own initiative. We are satisfied that he acted under the direction of the officers in the case or more senior officers; he would not have suppressed the transcript without a direction from DS Tate or DS Evans or others more senior than them. As we have said, DS Evans was an impressive witness of complete integrity and we have no doubt that she would not have acted in this way. Although the evidence of DS Tate was much less impressive (as demonstrated by his answers in cross-examination about the instructions he gave in relation to the Gloucester proceedings and his claim to have identified the language on the tapes as Mirpuri); his own record keeping was poor. However, he did not in our judgment act in any way dishonestly and would not have given instructions to Mr Harpham to suppress evidence. vi) We are assisted in that conclusion by the fact that the significance of the appellant being known as “D” or “Dax” cannot have been material until after his arrest on 14 April 2008. By that time the transcripts prepared under the supervision of DS Evans in Sheffield had been completed. It was of course possible, as Mr Kamlish QC rightly submitted, that it was only at that stage were steps taken to suppress the Gloucester transcripts, but this would have entailed those involved in giving a dishonest answer to DS Evans when she asked if the Gloucestershire Constabulary had transcribe the tapes (as set out at paragraph 28 above). At that time no one could have had a reason to provide an untruthful answer in the autumn of 2007. vii) Nor was the withholding of the transcript of Dewey’s interviews deliberate. There would have been no sense in doing this as the existence of that interview and its importance was clear, as we shall describe, from counsel’s summary of the Gloucester case which was provided to the appellant’s lawyers. viii) As Mr Kamlish QC reminded us, Mr Harpham could have been both dishonest and incompetent; we have no doubt that he lacked the competence to act as the disclosure officer, but we see no basis for finding that he was dishonest in relation to the failure to provide the transcripts of Dewey’s interviews.[37]We conclude therefore in respect of disclosure and the withholding of documents: i) The Gloucester transcripts were not supplied to the South Yorkshire Constabulary for use in the proceedings in Sheffield case against the appellant and others. ii) The transcripts used in the Gloucester case and the Sheffield case were prepared independently of each other by different officers. iii) There was a failure to disclose the transcript of Dewey’s evidence. It was not deliberate or malicious. It was the result of a deficient system and a lack of competence on the part of the South Yorkshire Constabulary.

(x) Other issues relating to disclosure

[38]A number of other matters were raised in the appellant’s skeleton in relation to documents which were used in the Gloucestershire proceedings and which were not disclosed at the Newton hearing of the appellant. We have examined the issues and are satisfied that the matters complained of have no substance. The omission of material in the Sheffield proceedings is explained by the fact it was not provided to the police at Sheffield.[2]THE EVIDENCE IN RELATION TO THE APPELLANT’S INCOME[39]The Crown contended that the appellant had been involved as head of the conspiracy throughout its duration, including the period when he was overseas, principally in Dubai.

(i) The evidence before the judge

[40]Before the judge the only evidence in relation to the appellant’s income and finances was the finding of £70,725 in cash at 66 Osgathorpe Road (to which we have referred at paragraph 3) and documentation from Grosvenor Real Estate Brokers (Grosvenor) in Dubai, UAE. These documents had been obtained by the Crown following e-mail correspondence between the financial investigator and persons in Dubai who had then posted the documentation to Mr Bradshaw. By the time of the hearing before us this documentation had also been obtained by the Crown under the mutual assistance arrangements with Dubai, but were put before the judge by the appellant to show that he was working in Dubai and could support himself; the Crown contended that they showed he had received no income apart from a very small sum.[41]The documents from Grosvenor were contracts relating to the purchase of 6 apartments in a new building, Dubai Sports City, which at the time was yet to be built in Dubai; the payments under the contracts were largely staged payments over a two year period commencing at the end of 2007, and a booking fee. Two contracts related to the same purchaser, the other four were different purchasers; the vendor was the same in each. Three referred to the appellant as being a representative.[42]The judge was also supplied with what he described as ledgers all headed “1 Jan – 31 Jan 07”; within these there was a record of only one payment to Sadakat Ali (the appellant’s first two names) of Dhirams 457.50 – which converted at the then exchange rate of approximately Dh 7 = £1, is under £70. The appellant produced no other document which showed any payment to him during the whole of the time he was in Dubai. A two page schedule of what appeared to be commissions due on the apartment sales was provided by Grosvenor; it did not show what was paid. There was uncertainty as to its provenance, accuracy and status. The judge declined to admit it.[43]The judge concluded that the documents demonstrated at their highest work on one day; they did not show the commission paid except for the sum of Dh 457.50. The judge therefore concluded that, giving the appellant the benefit of the doubt, it did not show continuing employment, a significant income or anything like that to live in Dubai for the period in question. The income must have come from another source. (ii). The position before us[44]In the grounds of appeal originally served, several issues were raised in relation to the way in which the judge had dealt with the evidence in relation to Dubai; these were all abandoned, save for one. It was contended that the judge had approached the issue wrongly and should have found that the appellant had legitimate earnings in Dubai.[45]After the Newton hearing, a statement was obtained by the Crown through the mutual assistance treaty from the police in the UAE for use in POCA proceedings. The statement was that of Mr Qamar Ali who was operating Grosvenor in Dubai; it was in Arabic. Although taken on 8 February 2010, it was not forwarded by the British Embassy for two months and then not translated until October 2010. The statement recorded that, about two years previously, the appellant had come to the office of Grosvenor and said that he wanted to buy some flats in Dubai; that he had bought a whole floor in the Dubai Sports City on the seventh floor; that he then sold through his office six flats. He added that the appellant had received the price from customers directly; the role of Grosvenor Real Estate Brokers was merely a brokerage.[46]The Crown served the statement in December 2010 and sought to adduce it as evidence under s.23 of the Criminal Appeal Act 1968. Initially a hearsay notice was served, but Mr Ali had by the time of the hearing of the appeal returned to the United Kingdom and attended court. The Crown therefore sought to call him to show that the appellant must have had significant sums of money independent of any employment in Dubai, as he had purchased property. No objection was made by the appellant.[47]We therefore heard the evidence of Mr Ali de bene esse. He told us that the statement was wrong; the police officer in Dubai did not understand English and he had done his best to assist in his, Mr Ali’s, very poor Arabic. It was wrong to say that the appellant had bought flats. The position was therefore that the statement adduced by the Crown was in effect abandoned by Mr Ali. It was suggested that the Crown had somehow behaved wrongly in putting forward the statement; we cannot see how that can be. If there was to be any criticism, it would be criticism of the Dubai police for their conduct of the matter based entirely on Mr Ali’s evidence. That must be a matter for the Police in Dubai.[48]He then went on to explain that his contact with the appellant had been limited. The appellant had come to his office, as many did in the time of the property boom in Dubai, with an interest in getting involved in the property business. Mr Ali did not think the appellant was the kind of person with whom he wished to deal, as he did not have the resources to engage in large scale property development. He passed him on to another person in his office, Mr Mohamed Shabaz Khan. Mr Ali told us that he believed that the appellant did act in a brokerage capacity in all the transactions to which we have referred at paragraph 41 though he had no personal knowledge. He had no direct knowledge of the transactions and the brokerage that would be earned on such transactions was always the subject of negotiation. The time at which the brokerage earned would actually be paid varied significantly; sometimes it might be paid up front, before the payments under the transactions for properties to be built were paid by the principals to the transactions, or sometimes the brokerage might be paid only when each instalment was paid. A person might be a broker even if the purchaser did not know or there was no record on the documents. He accepted, when it was put to him in cross examination by Mr Kamlish QC, that the appellant might have received something between £30-40,000 during the period he was in Dubai. However it is clear from his evidence, that Mr Ali had no direct knowledge of any payment and the only document that showed a payment was of the very small sum of money to which we have referred at paragraph 42.[49]The appellant then sought to adduce before us evidence from Mr Mohamed Shabaz Khan. None of the procedural steps necessary to seek to adduce his evidence had been taken before the commencement of the hearing; indeed no notice whatsoever of the possibility that he might give evidence was raised before the hearing. We were first told during the first day of the appeal that a statement was being prepared from him and he might be called; that statement was then served during the course of that evening. At the beginning of the second day, we were told that there was a further statement in which Mr Khan spoke about persons acting as freelancers for other companies and whether the appellant might have been working in that capacity. In neither statement did Mr Shabaz Khan say what the appellant had been paid; he did not know.[50]We were then asked by Mr Kamlish QC if we could postpone a decision on whether we would admit the evidence of Mr Shabaz Khan until we had given our decision on that part of the case relating to disclosure; we were informed that Mr Shabaz Khan was trying to obtain documents from Dubai which would show that payments had been made to the appellant. We made clear to Mr Kamlish QC that he had to decide at this hearing whether he wanted to apply to call Mr Shabaz Khan. He then applied. The Crown opposed the application. Its principal ground for opposing the application was that this was evidence that should have been adduced at the hearing before the judge at the Newton hearing. If, contrary to that submission, evidence was to be heard from Mr Shabaz Khan, the Crown wished to put before the court evidence from the purchaser of two of the apartments who was referred to in the Grosvenor documentation; that person was in New Zealand and it had not been possible within the time constraints of the hearing of the appeal to arrange a video link. We asked Mr Kamlish QC if he would consent, as s.114(1)(c) of the Criminal Justice Act 2003 provides, to the evidence of the purchaser being admitted as hearsay. He declined on the basis he wished to ask that person questions.[51]After considering the matter, we stated that we would not give leave for Mr Shabaz Khan to be called, giving our reasons later. The matters we took into account were: i) It had been abundantly clear for a considerable period of time prior to the Newton hearing that the Crown were contending that the appellant had no visible income. He had therefore had months prior to the Newton hearing and a very substantial period of time after the Newton hearing in which to produce documentation to show his visible means of support. ii) It was not, it appears, until a few days before the hearing that steps were taken to obtain documents from Dubai. We were told that the appellant had difficulties in getting the documentation. We do not accept that as credible. iii) We regret to have to observe that it was only during the course of the hearing that the court was actually told what was happening. It is essential for the proper conduct of business before this court that if fresh evidence is to be received, it has to be filed before the court well in advance. We accept that difficulties can arise in the provision of fresh evidence; however, it is essential that such difficulties are brought to the immediate attention of the court and that there is complete candour. That does not appear to have happened. iv) If documents purporting to show payments to the appellant had been provided, it would have been necessary to give the Crown an opportunity to check that they were genuine through the Dubai authorities. That would necessarily have taken a considerable period of time. v) It would not have been fair to the Crown to permit such evidence to be added in circumstances where Mr Kamlish QC would not consent to us receiving the evidence of the New Zealand purchaser as hearsay evidence. That evidence was important evidence in rebuttal and there can have been little doubt about its credibility.[52]We therefore concluded that it was not in the interests of justice to admit such evidence; there was no reasonable explanation for the failure to provide it at the hearing before the judge at the Newton hearing; no proper steps had been taken in advance of the hearing before us; the provision of the evidence would have necessitated an adjournment; finally it would have been unfair to the Crown to have admitted the evidence whilst maintaining the exclusion of evidence of rebuttal.[53]It must be recalled that at all times the appellant knew and had means of access to records which would have demonstrated how he had financed himself during the period in which it was alleged that his sole means of support was drug dealing; if he had a legitimate source of income, there must have been documentation which he had had over two years to provide. (iii). Our conclusion on the appellant’s income[54]The evidence of Mr Ali did not in any way change the position in relation to the appellant’s income. We have considered the schedule to which we referred at paragraph 42, but it does not show what was paid; nor does it give any indication as to what might have been paid in the period during which the appellant was in Dubai, given the staged payments; nor did Mr Ali’s evidence assist, for it was no more than speculation as to what the position might have been in respect of what was payable under the schedule. In our judgment therefore there was no fresh evidence to admit under s.23, on the assumption that we made for these purposes, that Mr Ali was a witness of truth. It is not necessary for us, in the circumstances, to decide whether he was.[55]We reject the criticism of the judge’s approach to the appellant’s income as misconceived. In the absence of documents which would plainly exist when a person was working here or in Dubai which would evidence a legitimate source of income, it is difficult to see how it could be inferred he had a legitimate source of income. There is nothing therefore which calls into question the judge’s finding that the appellant had no significant income or anything like that which would be required to live in Dubai for the period in question. The judge was therefore right to conclude that it followed that income must have come from elsewhere during the period in which he was abroad.[3]THE APPROACH TO BE ADOPTED BY US[56]We therefore proceed to consider the issue before us on the basis that there should have been disclosed, in addition to the documents provided to the appellant’s legal team, the transcripts of the interviews of Dewey, but that there was no other new evidence or material before us which was not before the judge or capable of being put before him by the appellant.[57]In appeals against conviction, the principles that the court applies to fresh evidence received under s.23 are well settled; the test in Pendleton [2001] UKHL 66; [2002] 1 Cr App R 34 is considered and, if it is satisfied, the conviction is quashed and a re-trial ordered.[58]In sentence appeals, the court often considers fresh evidence without formality: see the observations of Sir Igor Judge P in R v Caines [2006] EWCA Crim 2915 at paragraph 44. There is no doubt, however, that a court has power under s.23 to hear fresh evidence formally in a sentence appeal.[59]No one has, however, been able to find a case where fresh evidence is put before the court under s.23 in relation to a case where a Newton hearing has taken place in the Crown Court. The court plainly has power to hold a Newton hearing: see R v Guppy & Marsh (1995) 16 Cr. App. R.(S) 25. Although we have rejected the allegations made in respect of the transcripts of the telephone calls and of dishonesty, it is clear that the police failed to provide to the CPS and the appellant’s legal team the transcripts of Dewey’s interviews which it is accepted should have been disclosed.[60]The question for us therefore is whether in the light of that, we should uphold the findings that the judge made in the Newton hearing. The test in Pendleton is inapplicable; we can assess the reasoning of the judge and the difference it would have made. If we were to conclude that the judge would not have made the findings he made, if the transcripts of the interviews of Dewey before us had been before the judge, we would ourselves have to hear the Newton hearing afresh, as there is no power for this court to remit the matter to the Crown Court. The position is the same as it was in relation to confiscation hearings before the amendments to the Criminal Appeal Act by s.140(2) of the Coroners and Justice Act 2009 which inserted sub-sections 3(A) to 3(D) into s.11 of the Criminal Appeal Act 1968[4]THE EFFECT ON THE JUDGE’S FINDINGS (i). The evidence before the judge about the telephone calls[61]It is first necessary to consider the evidence before the judge in relation to the telephone calls.[62]After it had been pointed out that the language used in the telephone calls which was not in English had been misidentified as Urdu but was in fact Mirpuri, the police therefore instructed a Mirpuri speaker, Mr Ahmed, after the Newton hearing had been ordered. He listened to the calls on which the Crown relied and prepared his own transcripts; it was those transcripts that were used at the hearing. He gave evidence and was cross-examined at the hearing. He confirmed he was provided with the tapes and earlier transcript. He said he listened to the recording, comparing it with the transcript and corrected any errors he found. He confirmed he had the equipment to enhance the quality of the recording but he said it was not a poor quality recording and he did not have to use the equipment.[63]The transcripts were admitted as hearsay; no challenge is made in this court to the judge’s decision so to admit them. DS Tate was called to read them; in cross-examination his evidence was that he had not drawn Mr Ahmed’s attention specifically to check the transcriptions of “D”. His explanation was that this was so he should not influence Mr Ahmed in any way. He had, however, directed Mr Ahmed’s attention to the translation differences between Urdu and Mirpuri. He said he had not asked Mr Ahmed to consider the second area of concern raised by the appellant for the reason he had given.[64]It was contended on behalf of the appellant in this court that DC Tate’s evidence that he had not directed Mr Ahmed’s attention to the issue relating to “D” was disingenuous; it was submitted on behalf of the Crown that his approach was correct as Mr Ahmed was not qualified in the sense of being expert to check the transcriptions of “D”. It seems to us it would have been much better if his attention had been directed to this point. Nonetheless it was Mr Ahmed’s evidence that whilst he paid particular attention to the recording when he came across Punjabi, Urdu or Mirpuri words he did in fact listen to the whole conversation and he was satisfied it was accurate.[65]It was also submitted on behalf of the Crown that it was open to the appellant’s counsel at the Newton hearing to have cross-examined Mr Ahmed about the disputed areas of the transcripts; he could have suggested he had wrongly transcribed the letter “D” and it should have been “T”. He did not do so. Indeed it seems to have been accepted by counsel for the appellant that he did not put to Mr Ahmed any areas of importance or areas that were doubtful or invite the judge to listen to the tapes.[66]The appellant called Dr Todd, an expert who specialised in the analysis of media and tape recording. His evidence about the call made at 11:40 on 24 May 2007 was that the reference to “D” was equally consistent with the person referred to as being “T”. (ii). The evidence before the judge in relation to “T” and “D”[67]It was submitted on behalf of the appellant that there were different tiers to the conspiracy; if the court could not be sure that the name referred to was clearly “D”, was or may have been “T”, then the court could not be sure that the appellant who the Crown asserted was “D” was the head in the conspiracy.[68]Before Dr Todd gave evidence, the judge commented that none of the transcripts mentioned “T”. The Crown’s position was as follows:
“In no other transcript or passage of the transcript that had been placed before [the judge] is a reference made to “T”
. I accept within the context of the case as a whole, although there is no evidence before [the court] there is another individual from Leicester identified as “T”, but that is …. I simply raise that as background of the evidence before [the court]. There is no other individual identified as “T” for the purposes of this hearing and my submission is that that initial does not appear in any other transcript or passage of transcript. So for those reasons we invite you to say that it is “D”, you can be sure about that and to prefer the evidence from the prosecution witness.”[69]The appellant contended that the Crown had made a false representation to the judge. In the 16 page summary of the calls between 2 April 2007 and 16 July 2007 diligently prepared by DS Evans, the summary of the call at 09:21 on 23 May 2007 identified the call as being made to “CA/T”; it was noted that Shoukat Yakoub appeared to have been subservient. The full transcript of the call was in the prosecution papers. The call was to the number ending in 155 linked to Dutt whose role we have described. The initial “T” does not appear in the transcript at any point. The court was not misled. (iii). The documents which had been disclosed[70]After the entry of the plea, the Crown provided the case summary in the Gloucester proceedings and four of the six interviews of Shoukat Yakoub on 20 and 23 October 2008.[71]On 25, 29 October and 10 November 2008 the defence made three requests for disclosure. A response was made by the Crown on 18 November 2008 and the remaining two interviews of Shoukat Yakoub were disclosed.[72]On 1 December 2008 and 10 January 2009 the defence made further requests to disclosure to which replies were made.[73]It is of considerable significance to this appeal that the case summary of the Gloucester proceedings included, in the main narrative, over a page which summarised what Dewey had said in his interview; that summary included much of what Dewey had said about the conspiracy and some of the matters which were relied on before us for the contention that the “Dax” identified by Dewey was someone different to the appellant. No request was made for disclosure of the interview. (iv). Do the new matters before us affect the findings of the judge?

The judge made two findings from his analysis of the phone calls:

[74]first that the person referred to as “D” was the appellant and second that he was at the head of the conspiracy. The transcripts of Dewey’s evidence were primarily relevant to the identification of “D” as the appellant.

(v) The finding that “D” was the appellant

[75]We begin by considering the evidence other than the telephone transcripts. The appellant accepted that he was involved in the conspiracy in April 2007 and again from March 2008; he had no visible means of support during the whole of the conspiracy but yet lived a lifestyle which necessitated a significant income. He claimed he was a worker only in the period in which he admitted participation. The judge was in our judgment in these circumstances entitled to conclude on the evidence that he was involved in the conspiracy throughout and that his lifestyle was financed by drug dealing. There is no basis to question that finding. That finding was in any event supported by the discovery of £70,725 at 75 Osgathorpe Road; although he gave an explanation in interview, he did not give evidence. It was therefore open to the judge to infer that this was the proceeds of a substantial scale of drug dealing which were his.[76]It is in that context that the judge turned to his analysis of the phone calls from which he concluded that the “D” referred to in the telephone conversations was the appellant. In considering the judge’s findings, we must take into account: i) The appellant’s representatives could have invited the judge to listen to the tapes of the material conversation to hear for himself whether the reference was to “D” or “T”; this was not done. The judge heard ample evidence that entitled him to conclude that the reference was to “D”. He was not misled by the Crown in relation to the point in relation to “T” as set out at paragraphs 68-69 above; in any event if there was anything in this point, it was a point that should have been emphasised in the 4 day hearing before the judge. We can therefore see no basis for considering that conclusion was wrong. ii) It was clear from the case summary of the Gloucester case that Dewey had been interviewed and in that interview he had provided information identifying characteristics of “D”. No request was made for that interview. Although the Crown should have disclosed it, that error must be weighed against the fact that the appellant did not seek it or deploy what was in the summary.[77]We have carefully considered the conversations in the light of what the case summary and the interview discloses about “D”. It is important to bear in mind that the statements made by Dewey as to the identity of “D” in the interview must be approached with a very substantial degree of caution. The fact that the police were unable to trace phone calls between the appellant and his co-conspirators is a factor, but does not amount to much given the obvious ability and skill of some of those involved in this conspiracy. In those circumstances, we see no reason to disagree with the judge’s analysis of the telephone conversations in reaching the conclusion that he could be sure that the person referred to was the appellant.[78]We therefore conclude that the transcript of the interviews of Dewey’s evidence would have made no difference to the findings of the judge that “D” referred to in the phone conversations was the appellant.

(v) The finding that the appellant was head of the conspiracy

[79]The judge also inferred from the phone calls that they also showed that the appellant was at the head of the conspiracy. Mr Kamlish QC contended that an analysis of the phone calls, which we were in as good a position as the judge to undertake, showed that the judge had gone further than he should have done in finding that the appellant was at the actual head of the conspiracy. He also asked us to have regard to the fact that that it would be unlikely that a person at the very head would be mixing the drugs in a conspiracy of this scale; that the appellant had tested positive for heroin on his arrest and was kept on the detoxification wing when in custody for 4 days.[80]It is clear from the decision of this court in Ahmed (1984) 6 Cr.App.R.(S) 391, that a court will not interfere save in exceptional circumstances with findings of a judge on a Newton hearing where the judge has properly directed himself. We are sure that the tapes showed that “D” was at a very high level in the conspiracy and plainly at a point much higher in the conspiracy than Shoukat Yakoub. However the transcripts point to another person also being involved in directing the conspiracy; in the circumstances, we consider that the judge’s finding that he was at the head should be read as meaning that he was at the centre of the conspiracy and one of those in charge.

CONCLUSION

[81]Although therefore we consider that the appellant’s grounds of appeal fail in almost all the respects advanced before us, we consider the finding that he was the head must be read in the sense of him being at the centre of the conspiracy at a much higher level than Shoukat Yakoub.[82]We will therefore hear submissions from counsel as to the sentence imposed on the appellant for the role we have set out in this substantial conspiracy for the nationwide distribution of very large quantities of class A drugs.

Cited in 7 later judgments