Abi-Khalil & Anor, R. v [2017] EWCA Crim 17

[2017] EWCA Crim 17Case No 201505118 B5/201601503 B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 13 January 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE GROSS
MR JUSTICE SPENCER
MR JUSTICE STUART-SMITH
Between
R E G I N ACrownv
Between
TANNOUS ABI-KHALILARBEN PORJA
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr R M T Price appeared for Applicant Abi-KhalilMr J Normanton appeared for Applicant PorjaMs C Farrelly appeared for Crown

J U D G M E N T(Approved)

LORD JUSTICE GROSS:

On

[1]16 October 2015, in the Crown Court at Snaresbrook, before His Honour Judge Dawson, the appellants were convicted, unanimously in relation to Abi-Khalil and by a majority in relation to Porja, of being concerned in supplying a controlled drug of class A, cocaine, to another, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 ("the Act"). That was count 1. On the same date, they were each sentenced to 9 years' imprisonment, less in the case of Abi-Khalil a deduction for time spent on qualifying curfew.[2]The appellants appeal against conviction by leave of the single judge.[3]We are grateful for the assistance given today by counsel for the appellants, Mr Price for Abi-Khalil and Mr Normanton for Porja. Neither Mr Price nor Mr Normanton appeared at the trial. We are likewise grateful to Ms Farrelly, who appeared before us for the Crown and who did appear at trial.[4]The facts may be shortly summarised. On 1 April, a co-accused, Castano, was under observation by police officers as part of a covert police operation. At about 3.45 pm he was seen to travel by tube to Kilburn. He was carrying nothing save for a mobile telephone. He eventually reached a street called Brondesbury Villas where he approached a silver Mercedes car and got into the passenger seat. Abi-Khalil was sitting in the driver's seat. After a matter of seconds Castano got out of the car leaving Abi-Khalil in the driver's seat. Castano crossed the road and he met Porja. Porja was in the company of someone called Hilaj, both of whom had been seen to alight from a red Skoda motor car. Hilaj was seen to hand a large bag to Castano.[5]Following this, Porja walked away and Hilaj and Castano walked back in the direction of the Mercedes, stopping on the steps of 12 Brondesbury Villas. At this point, Abi-Khalil was seen to walk towards Brondesbury Villas. However, before he reached Hilaj and Castano they were detained and the bag was seized from Hilaj. The bag appeared to contain drugs. Castano and Hilaj were arrested and a number of mobile telephones were seized. Porja was arrested nearby. Abi-Khalil was arrested as he headed back to the Mercedes. Three mobile telephones were seized from him.[6]In interview Porja made no comment. In interview Abi-Khalil stated that he had met Castano with the intention of buying Viagra as he had done on previous occasions. He had no knowledge of or involvement in the supply of cocaine.[7]The prosecution case was that Castano, acting as a middleman, had arranged for Porja and Hilaj to supply cocaine for Abi-Khalil. Various items of evidence were relied on: observation evidence, scientific analysis of the drugs, telephone contact between the accused, incriminating text messages and identification evidence.[8]The defence case with regard to Abi-Khalil was that he had purchased Viagra from Castano on numerous occasions and had arranged to meet him on that date to obtain further supplies. He knew nothing of the supply of cocaine or other drug.[9]Porja's case was that he had planned to meet Castano and Hilaj entirely independently of one another and knew nothing of any conspiracy to supply drugs. He denied that he was to supply Castano with a small amount of cocaine for personal use.[10]The issues for the jury as they emerged at the trial were essentially knowledge and participation. There was also some debate at the trial as to whether there was an innocent reason for all these men being in the location they were on the day.[11]The grounds of appeal are these. In the case of Abi-Khalil: (1). The appellant's conviction was not valid in that in respect of a charge of "being concerned in supplying a controlled drug to another contrary to section 4(3)(b) of the Misuse of Drugs Act 1971" the appellant could not be convicted of the offence of being concerned with his co-accused in supplying a controlled drug of class A to another when the appellant, on the Crown's case, was the "another". (“Ground 1”) (2). Further, the appellant could not be validly convicted of the offence of which he was charged as no "actual" supply had been made to him. (“Ground 2”)[12]Porja's grounds, with respect, comprise a more extended formulation of Ground 1, as Mr Normanton very fairly accepted. So we will address all those, in effect, when dealing with Ground 1.[13]We look next at the indictment for the terms of the count with which the appellants, as they now are, were charged. The particulars of offence read as follows: "OSCAR CASTANO, ARBEN PORJA, BEC HILAJ AND TANNOUS ABI-KHALIL on the 1st day of April 2015 were concerned with each other in the supplying a controlled drug of Class A of a quantity of cocaine, to another in contravention of section 4(1) of the Misuse of Drugs Act 1971".[14]Next it is necessary to remind ourselves of the terms of section 4(3)(b) of the 1971 Act. The section reads as follows:
"(3) ... it is an offence for a person— ... (b) to be concerned in the supplying of such a drug to another in contravention of that subsection ... "
[15]Essentially, the argument for the appellants on Ground 1 is this. The supply must be to another, not a co-defendant in the same count. That was confirmed in a case called Connelly, to which we shall come. But the essence of the Crown case, so the appellants submit, was a focus on the "supply" by Porja via Castano to Abi-Khalil. As Porja and Abi-Khalil were co-defendants in the same count, the offence was unknown in law and the convictions must be quashed. As such, the appellants' case so far as concerns Ground 1 of the appeal is purely technical. Even were the appellants otherwise right on Ground 1, the ground would simply have disappeared had a separate count or perhaps a number of separate counts been added to the indictment. That said, if the ground is well founded then the appeal must be allowed devoid of merit though that ground may be.[16]Ground 2 places the appellants squarely in conflict with the decision of Martin & Brimecome, to which we shall come.[17]Developing their submissions today, for the appellants, Mr Price, on Ground 1, focused on how the prosecution had put its case. It was inappropriate for this charge. The focus, as evidenced by the prosecution opening note, was on the supply, effectively, between Porja and Abi-Khalil. Although it was clear, as Mr Price realistically accepted, that the drugs would have moved onwards, the jury was not given such a direction and it should have been. If need be, the appellants could and should have been charged with some different count such as conspiracy.[18]On Ground 2, the submission, respectfully advanced of course, was that the decision of this court in the Martin & Brimecome case was wrong and in conflict with earlier authority. Though at one stage Mr Price submitted that Martin & Brimecome had been decided per incuriam, as his submission developed it was essentially that Martin & Brimecome was in conflict with earlier authority also of this court.[19]Overall, Mr Price's submission was that Ground 2 was effectively the same problem viewed from a different angle.[20]For Porja, Mr Normanton concisely submitted that the flaw here was that the jury only appeared to have considered the supply to Abi-Khalil. This emerged also from the summing-up (pages 10 and following) and there had not been a focus, as there should have been if this was the charge, on onward supply. Such onward supply had not been brought to the jury's attention.[21]For the Crown, Ms Farrelly said this in her respondent's notice:
"The words of the indictment had made it clear that the supply related to 'another' and not to one of the co-accused. In the present case, the Crown had contended that the four defendants who appeared on the indictment were involved in the ongoing process of the supply of cocaine: the evidence suggested that Porja was the man with access to large amounts of cocaine; Hilaj was his right-hand man or driver; Castano was the link between Porja and Abi-Khalil and Abi-Khalil was a 'street dealer' of cocaine to others, as evidenced by text messages recovered from his mobile telephone. The supply therefore related to the ongoing and future supply of the cocaine in which Abi-Khalil would be involved."
[22]In this latter regard and with respect to Ground 2, the Crown relies upon Martin & Brimecome and submits that it was correctly decided.[23]So far as the scope of the trial was concerned, the Crown's submission is that the judge had the entire process of supply in mind when he directed the jury.[24]Developing those submissions today, Ms Farrelly accepted that if paragraph 4 of her opening note had been looked at in isolation its focus was indeed on the supply between Porja and Abi-Khalil. But, she submitted, it was clear that this trial was concerned with ongoing supply, going beyond simply the delivery of any drugs to Abi-Khalil. First, the quantity of drugs, 1 kilogram of cocaine with a street value of just less than £100,000, spoke for itself. It was clear to everyone involved at the trial that this was a case ultimately about onward supply not simply the transfer of drugs from one co-accused to another.[25]Secondly, there were before the jury text messages which showed that Abi-Khalil was involved in the onward supply of class A drugs.[26]Thirdly, there were particular text messages on the day making it clear that what was happening was a delivery of class A drugs from Porja to Abi-Khalil for the purpose of onwards supply.[27]As Ms Farrelly put it, supply was not really a live issue at the trial; the live issues were, as we have already foreshadowed, knowledge and participation. Martin was correctly decided and the convictions were safe. The legal framework[28]It is helpful to say something as to the legal framework. As it seems to us, the following propositions apply: (i). First, and as crisply summarised in Archbold at paragraph 27-39:
"The person whom the defendant is alleged to have supplied, or been concerned in the supply of, may be a defendant charged in another count of the indictment, but may not be a co-defendant in the same count ... Adepoju [1988] Crim LR 378, Connelly, 156 JP 406, Reeves [2001] EWCA Crim 91."
For the avoidance of doubt, we add that nothing said in R v Martin & Brimecome [2014] EWCA Crim 1940; [2015] 1 Cr App R 11 was intended to or did cast any doubt on this line of authority. (ii). Secondly, as emphasised in Martin & Brimecome, the word "supply" has a broad meaning. At [16], Lord Thomas CJ said this:
"The word 'supply' is a broad term. It does not by any stretch of the imagination result in a confinement to the expressions 'actual delivery' or 'past supply'. It refers to the entire process of supply ... "
[29]If fortification for this view is needed it may be noted that section 37 of the 1971 Act defines "supplying" as including "distributing" (see Archbold at paragraph 27-127). The definition is therefore consistent with a broad construction focusing on the "entire process of supply".[30]Further, and in addition to the arguments addressed to us, we have also considered the helpful commentary by Rudi Fortson QC at [2015] Crim LR 83, where some doubts are expressed as to the view taken by the court in Martin & Brimecome. We do not, with respect, share those doubts. There are obvious considerations of public policy supporting a broad construction of the word "supplying" in section 4(3)(b) of the Act with the additional attraction that, as the commentary observes, the law in both England and Scotland would then appear to be in alignment. (iii). Thirdly, we are not dissuaded from this conclusion by anything said in R v Hughes (1985) 81 Cr App R 344. The issue in Hughes involved the words "concerned in" and the fact that the judge in that case had failed to direct the jury adequately or at all as to their true meaning. In Hughes there had been an "actual supply" and this court's focus was on the other ingredients of the offence.[31]For our part, we cannot improve upon and respectively adopt the analysis of Lord Thomas CJ as to the observation of Robert Goff LJ (as he then was) in Hughes, set out at [11] of Martin & Brimecome, which reads as follows: “11. The section was for these purposes authoritatively considered by a Court of Appeal presided over by Robert Goff LJ (as he then was) in R v Hughes (Robert) (1985) 81 Cr App R 344. It is not necessary to set out the facts. Suffice it to say that the Recorder had failed to explain the ingredients of the offence to the jury, and particularly the meaning of 'concerned in'. In the judgment of the court given by Robert Goff LJ, he drew attention to the fact that there were three principal offences contained within subsection (3): under subsection (3)(a) the offence of supply or offering to supply to another; subsection (3)(b) to be concerned in the supply to another; and subsection (3)(c) to be concerned in the making to another of an offer to supply. In relation to the difference between (b) and (c) he said (at page 347): 'So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned.' He referred to R v Blake and O'Connor (1979) 68 Cr App R 1. After setting out the issue in that case, and drawing the important distinction between 'offer to supply' and 'supply', so that no one else would fall into the error of failing to innumerate the matters that the Crown had to prove, he set out (at page 348) in straightforward terms the three elements that the prosecution had to prove, as follows: ' ... for an offence to be shown to have been committed by a defendant contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove(1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act;(2) participation by the defendant in an enterprise involving such supply, or, as the case may be, such offer to supply; and(3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug.' It is particularly important to notice that the words of the statute were used in that quotation, and that the word 'actual' supply does not appear. So that no one else would fall into error, he set out the three ingredients." 'So the difference between (b) and (c) is that in (b) there has to be an actual supply in which the accused was concerned, whereas under (c) it is enough that there was an offer to supply in which the accused was concerned.' ' ... for an offence to be shown to have been committed by a defendant contrary to subsection (b) or subsection (c), as the case may be, the prosecution has to prove (1) the supply of a drug to another, or as the case may be the making of an offer to supply a drug to another, in contravention of section 4(1) of the Act; (2) participation by the defendant in an enterprise involving such supply, or, as the case may be, such offer to supply; and (3) knowledge by the defendant of the nature of the enterprise, i.e. that it involved supply of a drug or, as the case may be, offering to supply a drug.'[32]With respect to the observations in Archbold at paragraph 27-41, we do not think that Martin & Brimecome "misrepresents" what was decided in Hughes or that there is any conflict between those two decisions. As demonstrated in Martin & Brimecome, in the key passage in Hughes, Robert Goff LJ used the words of the statute - where the wording "actual supply" does not appear. As we do not see a conflict between Martin & Brimecome and Hughes it is unnecessary to decide what we could or should have done had there been such a conflict.[33]We were also referred by Mr Price to the decision of this court in R v Akinsete [2012] EWCA Crim 2377. The court there did use the wording "actual supply" but it was doing no more than repeating that which was contained in Hughes. The issue there was also not on the difference between any actual or completed delivery on the one hand and some potential delivery on the other but whether circumstantial evidence sufficed to demonstrate a supply. In our judgment, Akinsete takes the matter no further, as Lord Thomas CJ observed in Martin & Brimecome at [12].[34]We turn to apply the law to the facts. Ground 1[35]Given our view of the law, the essential question under this ground is whether, on the facts, supply was confined to dealings between the co-defendants or whether the trial court was concerned with a broader process of supply. As it seems to us:(i) In considering what was said by the prosecution and the judge it is important to keep in mind the issues before the court. These went to matters such as whether that which was to be transferred was cocaine or Viagra, the reasons for the defendants otherwise unexplained presence together at the location in question and, more broadly, knowledge and participation.(ii) The decisive factual consideration in our minds as to the scope of the trial and the matters there argued is that this case was concerned with one kilogram of cocaine rather than any lesser quantity. In our judgment, that quantity speaks for itself. Plainly it was not for Abi-Khalil's personal use. If so, it was for onward supply by him, as contended by the Crown. If that be right, the count was not confined to dealings between co-defendants in the same count.(iii) The indictment, on its true construction, as Ms Farrelly correctly submitted, plainly contemplates supply to "another" who is not included in the preceding wording: "each other".(iv) We are unable to read counsel for the Crown's opening note as being confined to dealings between the co-defendants inter se. That Abi-Khalil was, as submitted at paragraphs 4 and 5 of the note, the immediate recipient of the cocaine is obvious but begs the question as to whether that is the end of the process of supply or not and whether the presentation of the case at trial was confined to that immediate supply. Even if there was any doubt arising from paragraphs 4 and 5 of the opening note, paragraphs 45 and 49 of that note (which it is unnecessary to read into the judgment) make it clear that the case was concerned with the broader process of supply to the market.(v) We agree with Ms Farrelly that there was material in the texts before the jury which made the matter clear that the scope of the trial was not limited to the dealings between the co-defendants.(vi) Nothing said by the judge in his summing-up at pages 10 to 15 (to which we were referred) suggests that the court was exclusively concerned with the dealings of the co-defendants between themselves.[36]In the view which we take of the matter, while we accept that a direction was not given in terms as to onward supply, none was needed. Onward supply was clearly not in issue. The issues were not about the scope of any supply but, as already underlined, related to other matters going to knowledge and participation.[37]If, however, we are wrong in that regard and a direction as to onward supply should have been given then, in our judgment, nonetheless we entertain no doubt as to the safety of the conviction. The scope of supply was not the point in the case and even if there should have been a direction and one was not given, it does not begin to bear on the safety of the conviction.[38]Accordingly, we dismiss the appeal on Ground 1. Ground 2[39]This ground can be dealt with summarily. In light of the decision in Martin & Brimecome and the analysis we have suggested above, the fact, if it be the fact, that there was no "actual supply" to Abi-Khalil is neither here nor there. On the law as set out in Martin & Brimecome it simply does not disclose a foundation for the submission that Abi-Khalil could not be convicted of the offence in question.[40]Accordingly, we dismiss the appeal on Ground 2 and it follows that the appeal as a whole in respect of both appellants must be dismissed. Postscript[41]We note that an interpreter was engaged for the trial and for this appeal for the appellant Abi-Khalil. We expressed some surprise at this at the outset. On the material before us, Mr Abi-Khalil has lived in this country for 25 years. We cannot help remarking that in those circumstances we find it surprising that an interpreter needed to be engaged. [FOR THE TRANSCRIPT WRITER – THE FOLLOWING EXCHANGES DO NOT FOM PART OF THE JUDGMENT AND DO NOT NEED PARAGRAPH NUMBERS][42]MR PRICE: May it please your Lordships, I have an application to make for your consideration. When the learned single judge granted leave, a representation order was made in favour of myself. However, all the work done in relation to the application, I was asked to sort out all kinds of perceived problems about the case, which I hope I addressed properly, was not covered by the representation order and I would ask whether this court -- I have checked with the costs department in this building, the court does have the discretion to grant a representation order to cover the preparation of the application because if I had been trial counsel then that preparation of the successful application would have been covered under the representation order at the Crown Court.

LORD JUSTICE GROSS: Are you saying that the representation order you obtained does not cover the work you have done?

[44]MR PRICE: Yes. Most of the work was done for the purposes of the application, the bundle and the authorities and all that is before your Lordships. The work for today was relatively small compared to the work done on the application.

LORD JUSTICE GROSS: Did you raise this at the time?

[46]MR PRICE: Raise it with who?

LORD JUSTICE GROSS: With the Registrar?

[48]MR PRICE: No, it is a matter for the court as to whether you consider, having looked at the submissions made, which are in the bundle, and the work done in relation to the preparation for the application, whether you consider that that was work which was properly done and which would have had it been trial counsel there would have been an order in existence covering that work but because I was not trial counsel there is no order and all I can do is to ask the court whether it might be --

LORD JUSTICE GROSS: Do we have a discretion?

[50]MR PRICE: Yes.

LORD JUSTICE GROSS: And this has not been raised before anyone else?

[52]MR PRICE: I raised it with the costs department at this court asking for guidance.

LORD JUSTICE GROSS: When?

[54]MR PRICE: Before this hearing, a couple of days ago.

LORD JUSTICE GROSS: The reason I ask, Mr Price, is simply that I have been in cases where a little probing has demonstrated that an unsuccessful application has been made to the Registrar, and I did not want to find that there had been one. You have not made any such application?

[56]MR PRICE: I have not, no.[57]MR NORMANTON: I have a similar application.

LORD JUSTICE GROSS: You have a similar application?

[59]MR NORMANTON: Yes, in fact the same application, my Lord, just in relation to the preparing of the grounds. I think it would be obvious to everyone that Mr Price has done more work than me in relation to that but I have done some work in relation to it and so I make the same application.

LORD JUSTICE GROSS: Thank you very much.

[61]Is there anything you would like to say about this?[62]MS FARRELLY: No, thank you very much, my Lord.

LORD JUSTICE GROSS: We will just rise very briefly. (A short adjournment)

LORD JUSTICE GROSS: Mr Price, Mr Normanton, what we have decided to do is this. If you want to pursue that application, could you put it, no more than a page or a page and a half, in writing to us by 4.00 pm Tuesday, that is Tuesday, 17th January, and we will give you a written answer as soon as possible. We are not saying what the answer will be but we would like to see the application in writing to clarify what you have been given, what you want -- I do not mean in pounds and pence but what you want and then we will reflect on it once we have seen it in writing.

[65]MR PRICE: Thank you, my Lord.

LORD JUSTICE GROSS: Thank you all very much for your assistance.

Cited in 1 later judgment