Knagg & Ors, R. v [2018] EWCA Crim 1863

[2018] EWCA Crim 1863

Case No 201201781 C1, 201201650 C1, 201201652 C1, 201206962 C1

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM

Venue BIRMINGHAM CROWN COURT

T20107637, T20107805.

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 07/08/2018

Before

LADY JUSTICE SHARP

MR JUSTICE SWEENEY

MR JUSTICE BRYAN

Between

R E G I N ARespondent

RUSSELL KNAGGSAppellants

PHILLIP HADLEYAppellant

ROBERT RICHAppellant

JESUS ANIBAL RUIZ-HENAOAppellant

Tim Owen QC & Helen Law (instructed by Draycott Browne Solicitors) for Knaggs and (instructed by Olliers Solicitors) for Hadley & Rich

Christopher Harding (assigned by The Registrar) for Ruiz-Henao

Peter Wright QC & Julia Faure Walker (instructed by CPS) for Respondent

Hearing Hearing dates : 20-21 December 2017

Judgment Approved

Mr Justice Sweeney :

Introduction

[1]On 20 February 2012, after a trial lasting some five months before HHJ Inman QC in the Crown Court at Birmingham, Knaggs (now in his mid-forties), Hadley (now in his late fifties) and Rich (now in his mid-forties) were each convicted of conspiracy to import cocaine (Count 1). Cassim Koubari, Melvin Smit, and Michael Phillips were all acquitted on that Count. Rich and Knaggs were acquitted of a similar offence alleged to involve them and others unknown (Count 2), and Hadley was acquitted of five charges of conspiracy to import specified Class A & B drugs seized from a lorry at Dover and from a warehouse in Rotterdam (Counts 3-7). On Count 1, Knaggs was later sentenced by the trial judge to 20 years’ imprisonment, Hadley to 18 years’ imprisonment, and Rich to 14 years’ imprisonment – in each case less 568 days spent on remand. Anthony Perger, who had pleaded guilty to Count 1 before the trial, was sentenced to 5 years 6 months’ imprisonment – also less 568 days spent on remand.

[2]In a second trial before HHJ Chambers QC, which began on 27 February 2012 and concluded on 28 March 2012, the jury were unable to reach a verdict in relation to Jesus Ruiz-Henao (“Ruiz-Henao”) on Count 1, but acquitted his brother Hector Ruiz-Henao (“Hector”) on that Count. On 13 November 2012, after a re-trial before the same judge in the Crown Court at Birmingham, Ruiz-Henao (who is now in his late fifties) was convicted on Count 1. He was later sentenced by HHJ Chambers QC to 16 years’ imprisonment, concurrent to a sentence that he was already serving, and a Serious Crime Prevention Order was imposed for a period of 5 years. After eventual extradition from France, Duberley Navaez-Alvarez (“Alvarez”) pleaded guilty to Count 1 and was sentenced to 8 years’ imprisonment.

[3]Knaggs, Hadley and Rich now appeal against conviction by leave of the Full Court (Rafferty LJ, Sweeney J and the Common Serjeant) granted on 20 February 2014 (see

[2014] EWCA Crim 735

) upon two Grounds – each of which is concerned with the disclosure / admissibility of evidence relating to communications between alleged conspirators, namely:(1) Mobile telephone calls, principally between Rich and Hadley, which were said to have been intercepted by the Dutch authorities in the period from 16-24 October 2009 (“the Dutch intercept Ground”).

(2) A Yahoo email account with the address slimjim25@ymail.com, which was said to be used by Hadley, Rich and Alvarez to communicate via draft emails in the period from 14 May 2009 to 1 November 2009 (“the slimjim Ground”).

[4]On behalf of Knaggs, Hadley and Rich (and ultimately adopted on behalf of Ruiz-Henao) it is asserted that the Dutch intercept and slimjim Grounds concern distinct and equally pivotal parts of the Respondent’s case and that the material now available shows, in relation to both alleged methods of communication, that there was, and continues to be, serious non-disclosure by the Respondent of materials relevant to the lawfulness of the way in which the evidence was obtained – which materials were properly disclosable at trial, at least in relation to admissibility and abuse of process issues, and which (in accordance with e.g. R (Nunn) v Chief Constable of Suffolk Constabulary

[2014] 3 WLR 77

) remain disclosable in this appeal. It is said, by reference to R v Alibhai

[2004] EWCA Crim 681

at [57], that the failure to disclose itself renders the convictions unsafe, but that the substance of the undisclosed materials would also in turn have enabled the Appellants to bolster their application for specific (but still undisclosed) exculpatory material, which further taints the safety of the convictions. It is therefore clear that compliance or otherwise by the Respondent with its duty of disclosure is at the heart of this appeal.

[5]At the hearing in this Court on 20 February 2014, leave was also granted to Knaggs, Hadley and Rich to pursue a third Ground, which was concerned with the disclosure / admissibility of evidence of recordings of prison Personal Identification Number (“PIN”) telephone calls between Knaggs and Hadley. However, after the service of further evidence, that Ground was eventually abandoned. Leave was refused in relation to various other Grounds advanced by Knaggs, Hadley and Rich – including one which was concerned with alleged misconduct by the one-time Officer in the Case from SOCA, Mr Bill Butterworth. A final Ground, which related to a possible jury irregularity, was the subject of investigations by the CCRC, consequent upon which, ultimately, it was pursued no further.

[6]At, and following, a Disclosure and Directions hearing on 19 May 2015, this Court (Rafferty LJ, Sweeney & Dingemans JJ – see

[2015] EWCA Crim 1007

) variously declined:(1) An invitation by the Respondent to assume that (contrary to its case) the evidence in relation to each method of communication was unlawfully obtained, and then to determine whether, on that basis, the Appellants’ convictions may be unsafe.

(2) To order the Respondent to make any further disclosure, save where such was volunteered, with the pragmatic exception of copies of the relevant Dutch court orders / authorisations in relation to relevant telephone intercepts, which were ordered to be provided.

[7]The Court then set a timetable to bring the appeal to a full hearing on the first available date after 29 January 2016. However, thereafter the Appellants were given time to make further investigations of their own.

[8]At a further Directions Hearing on 11 July 2017, this Court (Rafferty LJ, Sweeney J and HHJ Zeidman QC – see

[2017] EWCA Crim 1068

) variously, and for the reasons given in its judgment:(1) Granted a renewed application for leave to appeal against conviction made by Mr Harding on behalf of Ruiz-Henao (which was limited to Ruiz-Henao’s Grounds 6 & 7 – i.e. the Dutch intercept and slimjim Grounds), and formally joined his appeal with that of Knaggs, Hadley and Rich.

(2) Noted that, following the provision to Knaggs, Hadley and Rich of the relevant Dutch court orders / authorisations, it was accepted that the requisite formal authority to intercept telephone calls made and received in Holland was in place at all material times.

(3) Declined to grant orders sought on behalf of the Appellants that the Respondent take all reasonable steps to obtain: (i) An un-redacted version of the BOB (i.e. investigatory) file from the Dutch Public Prosecutor. (ii) Copies, in so far as they were not part of the BOB file, of all the intelligence passed between the United Kingdom and Dutch authorities in relation to the October / November 2009 Dutch investigation. (iii) Copies of any records held by SOCA concerning the obtaining of phone intercept evidence in relation to any of the Appellants – including, but not limited to, the obtaining of such evidence abroad.

(4) Concluded, after considering the decisions in R v H

[2004] 2 AC 134

, R v Chisholm

[2010] EWCA Crim 258

and R v Austin

[2013] 2 Cr App R 33

(“Austin No.3”), that it would be a matter for the constitution of the Court which ultimately heard the full appeal to decide whether it was appropriate for the Court itself to inspect any of the undisclosed unused material, and then to decide (after any appropriate assistance from counsel on both sides) whether the appointment of Special Counsel was required in order to: (i) Review the material sought in relation to the Dutch intercept, together with the material in the Respondent’s hands about contact between the UK authorities and Yahoo, and/or the US authorities concerning the Yahoo evidence, including correspondence and intelligence. (ii) Make submissions as to onward disclosure to the Appellants; further material that ought to be obtained; and / or to make submissions at the full hearing in support of the Appellants’ appeal.

[9]After the hearing on 11 July 2017 it became clear that, prior to that hearing, Ruiz-Henao had given instructions that there should also be a renewed application for leave to appeal against conviction on his Ground 5 (which raised an Article 6 issue), but that, through no one’s fault, Mr Harding had not been aware of that, and so had not made a renewed application on that Ground.

[10]The full hearing of the appeal was ultimately fixed for 19 & 20 December 2017. It was decided that Ruiz-Henao’s renewed application in relation to his Ground 5 would be heard then. The Respondent did not require any of the Appellants’ witnesses in relation to the Dutch intercept and slimjim Grounds to be called. We asked that one, Mr Dieben (a Dutch attorney whose evidence relates to the Dutch intercept Ground), be available, if required, on the second day.

[11]On 15 December 2017, exercising our power under s.23(1)(a) of the Criminal Appeal Act 1968, we formally requested the Respondent to bring to Court any material in its possession that touched on the Dutch intercept and slimjim Grounds – in case we wished to review it, or any of it, during the appeal.

[12]On 18 December 2017 the Respondent sent an email to the Appellants, and to the Court, which stated that:

“Further to continuing re-review of unused material I attach for your immediate attention 8 pages of Decision Records of SOCA officer Butterworth. The decision records numbered 66, 88, 91, 110, 188, 206 and 208 are attached…”

The disclosed Decision Records were all to do with dealings with the Dutch authorities in the period from April to October 2009. The decision records numbered 66, 88, 91, 110, 188, 206 and 208 are attached…”

[13]In a Note dated 18 December 2017, and at the outset of the hearing the following day, it was variously submitted on behalf of Knaggs, Hadley and Rich that, in view of the Respondent’s email:(1) The Respondent’s position, maintained since leave was granted, that there was no further material to disclose, had been shown to be unreliable.

(2) The substance of the late disclosure supported the Appellants’ assertion that the obtaining and provision of the Dutch intercept material had been for the purpose of UK prosecution, in circumvention of RIPA.

(3) In consequence, the Full Hearing could not take place until: (i) The “continuing re-review” had been fully explained and completed. (ii) Further disclosure sought by the Appellants had been provided. (iii) Special Counsel had been appointed.

[14]On behalf of the Respondent it was asserted that the material was not disclosable, but rather had been served on 18 December as the Respondent wished (albeit belatedly) to rely upon it to demonstrate, by contextualisation, that the allegations of impropriety made in relation to the Dutch intercept evidence were entirely without foundation.

[15]Ultimately, we decided to examine all the material that the Respondent had brought to court in response to our formal request and having done so, and then obtained further assurances from Leading Counsel for the Respondent, we concluded that there was no duty of disclosure in relation to the material that we had examined; that there was no further material that we needed to examine; that the appointment of special counsel was not required; and that no further adjournment was necessary. We then heard argument on the merits of the appeal and Ruiz-Henao’s renewed application. Thereafter, we reserved judgment – including as to whether any further hearing was required.

[16]We now propose to deal with matters in the following

[17]The Prosecution case on Count 1 was that, in the period between 1 January 2008 and 12 November 2009, whilst Knaggs and Ruiz-Henao were both serving long sentences of imprisonment for drugs offences on G Wing at HMP Lowdham Grange, they conspired with others to import large quantities of cocaine from South America into the United Kingdom – although, ultimately, they were unsuccessful. The sentence that Knaggs was serving, imposed in 2003 after he had pleaded guilty to conspiracy to supply Class A drugs (mainly cocaine), was one of 16 years’ imprisonment. The sentence that Ruiz-Henao was serving, imposed in 2005 after he had pleaded guilty to conspiracy to supply cocaine (which had been imported into the United Kingdom from Colombia via Spain), and to assisting another to retain the proceeds of drug dealing, was one of 17 years’ imprisonment. He was alleged, in that case, to be the major figure in organising the importations from Colombia.

[18]The respective roles asserted by the prosecution in relation to Count 1 were that Knaggs, using the pseudonym ‘George’, had an organisational role. Ruiz-Henao, who had connections with drug producers in Colombia and was seeking to build up a nest egg because he was due to be released in around May 2012, was responsible for arranging the sourcing of the cocaine in South America. Hadley, referred to by the pseudonym ‘Mike’, was to provide money and to arrange contacts, including travelling to South America. Rich, referred to by the pseudonyms ‘Vince’ and ‘Elvis’, was responsible for direct contact with Knaggs, meeting external contacts, attending meetings, and being on the ground in South America – which he visited on three occasions. Alvarez, a naturalised British citizen of Colombian descent, was referred to by the pseudonym ‘Jose’, and was instructed by Ruiz-Henao to facilitate the sourcing of the drugs in South America – which he travelled to for the purpose. Perger’s role was to assist with transport and warehousing. His pseudonym was ‘Tony’. It was alleged that drugs were variously referred to in conversations and messages as “oil”, a “plastering job”, “cigarettes”, a “motorbike”, and “cars”.

[19]The prosecution was the product of an investigation by the Serious Organised Crime Agency (“SOCA”) called Operation Dearly. The Officer in the Case for a substantial period until May 2011 was a senior SOCA officer named Bill Butterworth. The evidence ultimately relied on was to the following effect.

[20]From 23-29 July 2008, Hadley travelled to Amsterdam. On 6 August 2008 Hadley and Rich flew to Madrid, returning on 8 August 2008.

[21]On 17 September 2008, during a search of Phillips’ cell at HMP Lowdham Grange, a document (written by Knaggs and Phillips, and with the latter’s fingerprints on it) was found. It was said to be a blueprint for the importation of tons of cocaine from South America into the United Kingdom, via Spain or direct, and contained references to quantities of fruit; to the chances of encountering / avoiding X-ray; to ‘Vince’ (Rich) meeting up with someone in Spain; and to the aim being to move as much product as possible in a three-month window.

[22]Each cell at HMP Lowdham Grange had a telephone and every prisoner who wanted to make calls was able to sign up for a PIN with which they could log into the phone and then make social and legal calls to approved individuals whose details and numbers they had given to the prison authorities in advance. It was not possible for others to ring in to the phones. Calls to accredited legal representatives were not recorded, all other calls were. It was part of the process that, in order to get a PIN, a prisoner had to consent in writing to his non-legal calls being recorded. Prisoners were not allowed to have mobile telephones and SIM cards. However, there was clear evidence that Knaggs had the use of SIM cards which were used to make and receive calls. There was a dispute as to where in his property one such card was ultimately found.

[23]On 24 October 2008, Hadley went to Holland where he met with a man called Metin Cicek (who was to feature again – see e.g. [29]-[32] & [43] below).

[24]Between 11 December 2008 and 6 January 2009, there were recorded PIN telephone calls between Knaggs (in prison) and Hadley and others. The calls on 11 and 13 December 2008 were said to include reference by Knaggs to ‘Elvis’ (Rich) being in South America, having gone down well, and having extended his stay to find out more things. On 26 December 2009, there was a discussion about how Hadley had walked away from a meeting with six males, all of whom had since been arrested – with Knaggs expressing concern that Hadley may have put his head above the radar, and Hadley saying:

“No, I only met them once pal, not to do with that oil business that we are doing.”

Rich returned to this country from South America on 9 January 2009. Hadley flew to Amsterdam on that date and returned four days later.

[25]On 24 January 2009 and on 7 March 2009, Hector and Alvarez visited Ruiz-Henao at HMP Lowdham Grange. In the interim, on 4 March 2009, Rich had been in telephone contact with Alvarez for the first time.

[26]In the overall period between 1 March 2009 and 1 December 2009, Hadley was alleged to have used 29 different SIM cards, Rich 17 different SIM cards and Alvarez 11 different SIM cards.

[27]On 8 March 2009, Hadley visited Knaggs at the prison and a covert recording of their conversation (parts of which were inaudible) was made. With the assistance of a senior lecturer in phonetics, Mr Hirson, it was alleged that the recording showed that Hadley and Knaggs had talked in considerable detail about the importation, in containers, of large quantities of drugs from Costa Rica to the United Kingdom via Florida, Hamburg and Belgium, and how they were going to make large amounts of money. The conversation was alleged to have included references to ‘Elvis’ (Rich) and: “…at the end of six months, you and I would have had a million – a million on top of 10 million…3,000 euros plus we’ve got to pay $1,500 to move it into Costa Rica… The way it’s going to be done is if it’s going to be vacuum packed… the only thing that is going to trip us up is information received…”.

[28]Between 11-13 March 2009, Koubari (who was also serving a long sentence of imprisonment at HMP Lowdham Grange for a drugs offence) was in contact with Perger via recorded PIN telephone calls – which were said to involve checking that Perger was still up for involvement, directing him to research travel to Costa Rica, and giving him instructions to meet ‘Vince’ (Rich), whose telephone number he gave, about pricing – including the minimum price to accept. Thereafter, Perger spoke with Rich, and on 14 March 2009 told Koubari that he had sorted it.

[29]On 19 March 2009, Hadley flew from Humberside to Rotterdam where, the following day, he was recorded on CCTV (which the Dutch authorities later recovered) with Metin Cicek (see [22] above) renting a warehouse unit at 14 Alblasstraat in Rotterdam (which was alleged to have later been used as a staging post for the drugs the subject of Counts 3-7). Cicek played the leading role in the rental process. Hadley returned to this country on 22 March 2009. On 23 March 2009, there was a recorded PIN telephone call between Knaggs and Hadley, during which it was alleged that Hadley had told Knaggs that ‘Elvis’ (Rich) had had nothing, and that Knaggs had reassured Hadley that he (Rich) would do. On 25 March 2009, there was a meeting between Hadley and Rich at McDonald’s in Hoyland. Later that day, Hadley reported the meeting to Knaggs during a recorded PIN telephone call.

[30]On 27 March 2009, a routine check of a lorry in the port of Dover revealed that its load, which had been picked up from the warehouse at 14 Alblasstraat in Rotterdam, included 191 kg of amphetamine, 53 kg of fluoroamphetamine, and 25 kg of cannabis (with a total street value of at least £3.5 million), and that the haulage company involved was due to pick up another load from the same warehouse on 30 March 2009. On 29 March 2009, a liaison officer working in the United Kingdom Embassy in The Hague was notified of that information. It was passed to Ms De Boar, a public prosecutor in Rotterdam, under whose leadership an investigation codenamed Operation ‘Samber’ was thereafter carried out by the Midden Criminonleit Crime Squad of the Regional Crime Investigation Department of the Regional Police of Rotterdam. One of the officers involved was Inspector Branderhorst. Ms De Boer decided that the deployment of special investigative powers was required and so, it was said, sought and received authorisation from an Examining Magistrate to intercept and record telephone calls made by Metin Cicek and other persons who became known during the Dutch investigation. During its course, it became clear that a brother of Cicek and (via the recovery of the CCTV footage from 14 Alblasstraat and other enquiries) Hadley, were also persons of interest. On 30 March 2009, the Dutch police raided the warehouse at 14 Alblasstraat and recovered 421.44 kg of amphetamine, 25 kg of heroin and 4.6 kg of cocaine.

[31]On 31 March 2009, Perger told Koubari in a recorded PIN call that he was meeting ‘Mike’ (Hadley) and ‘Vince’ (Rich), and Koubari again gave him instructions about price negotiations and a 1/3rd deposit being required.

[32]On 2 April 2009, Metin Cicek was arrested by the Dutch Police for drug offences relating to 14 Alblasstraat and for a firearms offence. Operation ‘Samber’ continued until early June 2009 when it was concluded for lack of prospect of prosecuting anyone else. Ultimately, on 29 September 2009, Metin Cicek was sentenced to 4 years’ imprisonment.

[33]Mr Butterworth’s Decision Record No.66 dated 16 April 2009, now served, records that during a meeting with Ms De Boer, Inspector Branderhorst and others the Dutch had indicated that they had insufficient evidence at that time to initiate a prosecution against Hadley. Mr Butterworth noted that therefore there should be no impact on Hadley’s role in Operation Dearly, but that that would be reviewed regularly and, if necessary, further meetings would take place to discuss the case. He decided to continue collaborative working with Branderhorst and De Boer in relation to evidence gathering in the UK / Holland regarding the seizure at Dover and Rotterdam.

[34]In the meanwhile, on 15 April 2009, Alvarez flew to Colombia, and Hadley and Rich spoke by telephone. On 19 April 2009, Koubari and Smit had a recorded PIN telephone conversation – with Koubari explaining that an Englishman was going to come out to meet Smit; instructing Smit not to give any details of transport methods or routes; giving instructions as to three potential dates (17 May, 21 June & 19 July) for a boat sailing; telling Smit that the first delivery was to be 300 / 600 in weight with a price of 3.6 million (with Smit collecting a third prior to delivery); giving Smit the mobile phone number of ‘Vince’ (Rich); and telling him to inform ‘Vince’ that the man in Germany had already been paid. It was said that ‘Tony’ (Perger) would meet ‘Carlos’ the transport man in Costa Rica, and that ‘they’ were paying 7,000 a unit. Later that day, Smit rang Rich.

[35]On Monday 20 April 2009, Rich and Hadley met at McDonald’s at Dearne Valley Parkway. In a subsequent PIN recorded call that day, Smit told Koubari that ‘he’ wanted to come to the Netherlands on Wednesday. Koubari indicated that ‘they’ needed transport as ‘they’ used to bring in stuff via Spain but it kept on getting intercepted or went missing – hence they had involved Koubari. Transport had been arranged for 600 units with ‘the stuff’ going between two industrial compressors. Smit said that he would be meeting two men on Wednesday – ‘Mike’ (who was in charge of the money) and ‘Vince’ (who was in charge of “the other part of the world, the handing over part”). After 600 units, ‘they’ would do 5,000.

[36]On 21 April 2009, in a PIN recorded call, Smit said “he’s coming tomorrow” and Koubari said that he had spoken to the boss of the man who was coming and had explained to him how it all worked. Smit was told to tell ‘them’ that ‘Tony’ (Perger) was the runner and that the container would leave Costa Rica and sail to Long Beach, and then sail on to Hamburg where Koubari’s contact, an inspector, would release the container. In another such call later that day, Koubari and Smit agreed to tell ‘them’ that the man in Germany had been paid 250,000, that there were other transport costs, and that ‘they’ must pay up 500,000 or the deal was off.

[37]On Wednesday 22 April 2009, Hadley and Rich were observed to travel together by train from Doncaster to Brussels, and then by taxi to Eindhoven, where they met Smit in a brasserie at the railway station. Prior to the meeting, in a PIN recorded call, Koubari spoke with Smit and told him to tell ‘them’ that the 300 units were 7,000 a unit, and would not be delivered until Smit received the 500,000. There was surveillance of the meeting between Hadley, Rich and Smit and parts of the conversation (which the prosecution alleged related to the importation of cocaine) were overheard – including reference to 1,000 kg; a route that had already been tested; a male called ‘Tony’ (Perger); Hamburg; and “You have to make a down payment before you get something”. Shortly after the meeting, Koubari was in contact with Smit via a recorded PIN telephone call. Smit reported that the others had refused to pay a deposit, whether of 1/3rd or 500,000, and that they had asserted that both ‘Tony’ and ‘George’ had said that a down payment was not needed. Koubari confirmed that when the load came into Maasmechelen someone would have to sign for it, that the units would be in 1 kg blocks, and that “everything is there in San Jose and it is all ready”. In the evening of 23 April 2009, whilst Hadley and Rich were on route back to Doncaster, Smit contacted them by phone – after which, in a recorded PIN telephone call, he reported to Koubari that he had told ‘them’ that, without a deposit, the deal was off. He also said that he had the feeling that ‘they’ did not have the money, and first wanted the money from the cocaine.

[38]On 24 April 2009, in another PIN recorded call, Koubari told Smit that he had come to an agreement with the people that they would pay a deposit of 200,000, and asked Smit to sort out another transport company in Costa Rica. On 25 April 2009, there was telephone contact between Rich and Smit and Rich and Perger, after which, in a recorded PIN call, Smit told Koubari that ‘that man’ had called and the deal was on. Koubari said that as soon as ‘it’ arrived in Maasmechelen ‘they’ would have to come over with the dough; that he did not want the ‘Englishmen’ to know how the transport system worked; that it was only 300 units now; and that he wanted to get ‘Carlos’ involved for the second one which would be more. Koubari said that he had spoken to ‘them’ direct, and that if they did not pay up they could “bugger off”. On 26 April 2009, Hadley and Rich were observed to meet Perger at a public house in Sheffield. Perger reported the meeting to Koubari in a subsequent recorded PIN telephone call – during which he indicated that ‘they’ were expecting him to go on the 10th or 11th. On 29 April 2009, during a recorded PIN telephone call between Koubari and Smit, Koubari said that the plan was that ‘Tony’ would go to Costa Rica and sort out 300 units and tell ‘them’ when it was delivered. Koubari also said that ‘they’ owed him about 300,000 Euros and that all he wanted to do was to rip ‘them’ off, but then (when Smit became annoyed) said that he was not being serious, and that ‘they’ wanted the deposit dropped from 500,000 to 200,000.

[39]On 30 April 2009, in a PIN recorded call, Koubari explained to Perger that he only wanted him ‘there’ for two days, that ‘Mike’ and ‘Vince’ would be flying out, and that ‘Mike’ would bring him some money. On 1 May 2009, Hadley and Rich met at McDonald’s at Dearne Valley Parkway. On 3 May 2009, in PIN recorded calls, Koubari told Smit that ‘they’ were trying to get the money together as they really wanted to do it, and would pay as soon as the goods “get there”; that he had asked for “one point two”; that he would send ‘Tony’ over next week; that 300 units would come to Germany; and that if ‘they’ did not come up with the money “we will have the 300 units in any case”. On 4 May 2009, Rich flew from Manchester to Caracas, Venezuela and on to Colombia. He remained in South America until 11 June 2009.

[40]On 7 & 9 May 2009, there were recorded PIN telephone conversations between Knaggs and Hadley during which they discussed, respectively, a “plastering job”, and Knaggs asked about a mate of Hadley’s (Rich) who was “on holiday” and was told that the mate would be ringing him. On 10 May 2009 Perger visited Koubari in prison, during which they discussed a shipment from Colombia to Costa Rica in two days’ time; 350 kg; and the need for them to be paid £7,000 per kilo. On 11 May 2009, a meeting between Perger and Hadley was observed at a public house in Sheffield, after which Koubari and Perger spoke by telephone.

[41]On 14 May 2009 a Yahoo email account, slimjim25@ymail.com,was created in Cali, Colombia by Rich / Alvarez using the name ‘James Smith’ for the account holder. The prosecution alleged that the account was used from that day onwards by Rich, Hadley and, on occasion, Alvarez to communicate with each other securely from different locations by variously logging into the account (using the password ‘americano69’) and creating, reading or altering draft emails – thereby, on such occasions, avoiding the need to send the emails and thus avoiding interception. ‘George’ (Knaggs) was often referred to as ‘g’; ‘Vince’ (Rich) as ‘v’; Jose (Alvarez) as ‘j’ or ‘h’; and ‘Tony’ (Perger) as ‘t’. On the day that the email account was opened, Rich drafted an email to Hadley saying: “hi mate, the bank is barclays account no. 00025526 sort code. 20-21-78 miss monica motato is it possible to put another 500 into it will you speak to George??? Cheers pal, take care”.

[42]On 15 May 2009 Hadley drafted a reply to Rich saying:

“got it ok mate did h wife get the 500 I sent the name was m c londono, g said this guy is sending part of the oil with h yet i heard h say he did not know the name ! what the fuck is going on mate I’m not handing any more over until I know who is who and what part they play i have to cash t up so he can visit try and find out mate g not making me good all these people involved but they don’t have cash! g saying h putting oil on and someone else and the guy whos wife;s a/c I put the cash in that’s 3, g says londono is h mate and made the intro to h so he’s putting 50 barrels on, this other guy 100 and h 150!!!”

On 16 May 2009 Rich drafted an email to Hadley saying:

“hi mate, why doesn’t g just be truthful with everyone, I thought we were a team???? i haven’t got h with me at the min but will find out what’s happening and let you know tomorrow….i think the only people who know what they are doing is ma and you!!!!!! A0 i will try and ring you tomorrow instead of this, its easier to talk, plus its nice to talk to someone who speaks English…still can’t get a date and time for this meeting pal, so ill let you know when I hear something…keep smiling pal x”

[43]In a PIN recorded call on 17 May 2009, Koubari explained to Smit that ‘Tony’ had got the money (said to be £2,000 for expenses from ‘Mike’), and then discussed with Smit that there were to be 450 units, and the arrangements for the handover of the units and the money – with Smit expressing concern about ‘Mike’s’ Dutch/Turk man (an apparent reference to Cicek), and the possibility that Mike might have a weapon. On 20 May 2009, there was telephone contact between Knaggs and Hadley and Hadley and Perger, and on 21 May 2009 Hadley drafted an email to Rich in which he said: “will try my best to get the plastering job mate, all for one and one for g bet that got a smile o white one ha ha ha ”.

[44]In the meanwhile, in his Decision Record No.88 dated 20 May 2009 (now served), Mr Butterworth recorded a meeting that day with Inspector Branderhorst, during which the latter had indicated that the Dutch did now have evidence of Hadley’s involvement in the Dutch seizure – which had the potential to impact on Operation Dearly. Mr Butterworth decided to travel to Rotterdam with the CPS lawyer advising Operation Dearly and to liaise with the Dutch prosecutor.

[45]On 23 May 2009, Rich drafted an email reply to Hadley saying:

“yes mate, let’s hope we get the plastering job going, it will make me feel like something is happening…and make me feel better after suffering with the shits three times, getting eaten alive by mosquito’s and now been covered in red lumps all over my arms and legs, and living every day not knowing what the fuck anyone is saying!!!!!! But i suppose I’d rather be here suffering all that instead of having to deal with g…….take care mate ”

. Later that day, following various telephone calls between Knaggs and Hadley, including a recorded PIN call during which Knaggs said to Hadley that “everything is bang on”; mentioned that one of two contracts had a higher purchase price; and referred to a “three hundred quid guarantee”; Hadley drafted an email to Rich saying:

“just had talk with g, t leaving on the 11th, you meet scrapyard man on the 16th, g now talking to h friend to see if we can work something out for the plastering job!!! If they come back to me, got his nose in ha ha ha. also going on hols for a few days mate will take this and phone with me”

. Later that day Hadley was in contact with Perger and Smit, and (in a PIN recorded call) Perger told Koubari that he had had a text from ‘Michael’ (Hadley) and that everything was fine.

[46]On 24 May 2009 Hadley had a mobile telephone call with Knaggs. Later that day, Hadley drafted an email to Rich saying:

“…don’t see the plastering job being on mate they want to much…”

Later that day, in a PIN recorded call, Knaggs spoke with Hadley about two contracts that were in play, and said that he felt that one needed to be completed before they went on to the second. On 25 May 2009 Hadley, by then in Portugal, drafted an email to Rich saying:

“don’t kill plastering job of completely mate they may be rethinking”

. On 26 May 2009 Rich drafted an email in reply, saying: “no probs mate, we definitely havin a meeting on tues dinner time, ill jus say we not 100% happy with it yet and will not go forward with it until we are! hope your having a good holiday pal, talk to ya soon”.

[47]In his Decision Record No.91 dated 26 May 2009 (now served) Mr Butterworth recorded the fact of a meeting in Rotterdam between himself, the CPS lawyer, Ms De Boer, Inspector Branderhorst and others – at which it was decided that the Dutch would continue their prosecution of Metin Cicek and would allow Hadley to be investigated by the Operation Dearly team to the point where there were sufficient grounds for prosecution for the UK conspiracy. If that was never achieved then the Dutch would mount a prosecution against Hadley for his part in the Dutch seizure, including obtaining a European Arrest Warrant. Mr Butterworth recorded that that would allow Operation Dearly to carry on a covert pro-active operation with the knowledge that evidence existed linking Hadley to Operation Samber, and that the two prosecutors were happy with that arrangement.

[48]On 28 May 2009, Hadley drafted an email to Rich saying:

“not heard from g so I think everything ok now mate”

. Later that day, Rich drafted an email in reply stating:

“hi mate, tried ringing you a few times today (Thursday)…need to talk to you on Friday any time from 8am my time, they are moaning about the 20 they have stood a V place, someone has told them that plastering job isn’t looking like its going to happen now and they are moaning about the cost of having it stood…..I would love to know who is telling them all this, cause ive never even said it was on, nevermind its been off!!!=A0 ring when ya can pal, i can only ever get any sense out of you….cheers mate”

[49]On 29 May 2009 Knaggs and Hadley spoke by mobile telephone, after which Hadley drafted an email to Rich saying:

“problems with phone networks yesterday, g just rang saying the same thing, they are saying only just been told that the plastering job off, I said we have never said it was on, he wants you to ring with pen and paper at 6.15pm eng time mate I will try you in a bit if I can get through”

Thereafter Hadley tried to ring Knaggs on his mobile number, and then drafted an email to Rich saying: “tried to get through mate now 7.30 will try about 11pm”.

[50]On 30 May 2009, in a PIN recorded call, Perger told Koubari that he had spoken to ‘Mike’ (Hadley) and would be meeting him on Monday (1 June). Koubari told Perger that he would be “out there” in 14 days; that on the 15th he was going to meet a friend of Koubari’s; that on the 16th he was going to meet ‘Vince’ (Rich), and that on the 17th all four out there would sort it out. Koubari told Perger that he would like Costa Rica, and that once it was sorted he was to get out. On 31 May / 1 June 2009 there was telephone contact between Hadley and Knaggs and Hadley drafted an email to Knaggs stating:

“07551890263 santa’s number mate merry xmass ha hah”

. Following telephone contact between Hadley and Perger, they met at a public house in Sheffield. After the meeting, in a PIN recorded call, Perger told Koubari that he had met ‘Mike’; and it was agreed that Perger would fly out on the 11th for three days. Koubari stated that everything was in place; that Perger would meet a man and would introduce him to ‘Vince’ (Rich). In another PIN recorded call Koubari told Smit that ‘Mike’ would contact him and that everything was organised “over there”; that ‘Vince’ was over there; that ‘Tony’ (Perger) would be there on the 14th; that ‘Carlos’ and the warehouse were ready; that ‘Vince’ had a different warehouse and would not reveal where it was; that ‘Carlos’ would meet ‘Vince’ in a van and give ‘Vince’ the keys; that ‘Vince’ could then take the van to his own warehouse; and that Smit had to get into contact with ‘Mike’ and ‘Tony’. Thereafter Rich responded to Hadley’s earlier draft email saying: “cheers pal, you might as well be santa cause the next time I see you will be fukin christmas at this rate…”.

[51]On 2 June 2009, Hadley was in telephone contact with Smit and Perger, and Rich drafted an email to him saying:

“hi mate, my number is 00573127127323 cheers”

. After that, in a recorded PIN call, Perger told Koubari that ‘Mike’ had been in touch with him that day; that he was fine and that he hoped that they could shift some ‘cars’ soon. Koubari told Perger to book his tickets for the 13th or 14th, and that Smit and someone else would be in contact with him. In another PIN recorded call, Smit told Koubari that ‘he’ had phoned, and that ‘he’ would be coming over to see Smit that week; that ‘Vince’ would come and collect the van; and that ‘Mike’ would make the payment while Smit was guarding the “cigarettes”. Koubari told Smit that the thing would leave on the 19th, and would arrive in Maasmechelen on 1 or 2 July. Smit said that he would meet ‘them’ in Eindhoven, and Koubari said that there would be 20 in a box; that there would be 25 boxes; and that they would be the normal removal boxes.

[52]On Wednesday 3 June 2009, Rich drafted an email to Hadley stating:

“hi mate, looks like the meeting is on for wed now…so if ya want to ring at three your time I might be able to let you know what time its on…lets hope nothing else changes now and we can just get one sorted, and then hopefully we can get this thing finished!!!! It will be nice to have the money pal, but the bonus is having the chance to meet you and bec”

. Shortly afterwards Rich added:

“…talk to ya soon pal…fingers crossed.”

Thereafter, Hadley was in telephone contact with Smit and Perger, after which Perger spoke with Koubari in recorded PIN calls – during which he said that he had spoken with Smit; that everything was “good to go”; that he had the £2,000; that he was awaiting an email booking confirmation; and that he was going on the 13th.

[53]On 4 June 2009, Rich drafted an email to Hadley saying:

“hi mate, well the meeting went well and everyone seems happy nothing was said bout plastering job and I didn’t have to explain myself. now as for the other job, they have got exactly 300 to send, trouble is it still isn’t where we need it to be but its very close they have sent a guy to sort the final move out and he will confirm its all arrived by this weekend. So we will be ready for the date to hand it over! They still haven’t got the sizes you want because no one has seen it, they have said that the only way we can give you them is for me and h to fly out to the stuff next week and measure it ourselves! so we will have to do that pal and then just stay there til its done. It’s a fukin joke! They still won’t confirm any figures until the first one is done so we will jus have to wait on that. Ive told them about the third date moving and they seemed fine about that. So at least its on and I feel confident that its going to happen, the biggest problem ive got now is our lass sorry I cant give ya any more info yet mate, hope you have better luck over there. Have a safe trip…”

Later that morning, in a recorded PIN call, Perger told Koubari that he had had to cancel one flight and to book another, and so had little money left, but would be there on the 13th. Koubari said that Perger would meet the others on the 14th and that the exchange would take place on the 16th. Also on 4 June 2009, Hadley travelled to Brussels by Eurostar. On arrival he was met by three malesand was followed, via a meeting with others in Amsterdam, to Groningen where he went to the address of Metin Cicek. In the meanwhile, both Knaggs and Perger were in contact with Hadley by telephone – with Perger, in PIN recorded calls, then telling Koubari that he had called ‘Mike’ and was still having problems with booking flights. Koubari told him that Smit would contact him to give him instructions.

[54]After a telephone contact from Perger, Hadley stayed the night of 4 June 2009 at the Hotel Mercure in Groningen. Late that evening, he drafted an email to Rich saying:

“there is a poss of work from puru, equdor, lima does the dhl man send from any of these, im with the contract men here, I told them the people back home fucked it up for now but as soon as job one gets home we will talk if job still on, they have dhl men here mate! G said to keep it quite but in passing if while chatting you asked if dhl man worked from other places as well as v, g said puru good but I don’t know if that was job one way. If you think it will make waves don’t ask, and t booked now he leaves on the 12th mate.”

[55]On 6 & 7 June 2009 there was telephone contact between Knaggs and Hadley, and Perger and Hadley and, on 7 June, Perger visited Koubari in prison and Hadley drafted an email to Rich saying:

“you ok mate, rang all day”

. On 8 June 2009, there was telephone contact between Knaggs and Hadley, Perger and Hadley, and Smit and Hadley. That evening, in a PIN recorded call with Koubari, Smit said that ‘Mike’ (Hadley) had rung him, that the deal was back on, and that he had told ‘Tony’ (Perger). Koubari said that they were the only ones who could bring the stuff over without being stopped, that ‘they’ knew that, and that he would wait until Wednesday to speak to ‘George’ (Knaggs). He went on to say that he was not happy about the extra risks involved in supplying it 3 times in ‘100’ units, but that ‘Tony’ would still be going on the 12th. Smit said that he had to cancel it when he heard that they did not have the 2 million. Koubari said that he would make it very clear to ‘George’ that he wanted 500,000 as a deposit, then he would start the ball rolling. Koubari then decided that the deal was off. In a subsequent PIN recorded call Perger told Koubari that he had spoken with ‘your’ man and that things were now fine. He believed that ‘they’ were having a meeting and he was waiting for an update, and hoped that the meeting went well – saying “Let’s do it”. Koubari said that if the deal did not go ahead there were other people who wanted to jump in.

[56]On 9 June 2009, Rich drafted an email to Hadley saying:

“hi=AOmate, the two people we were meeting decided to fly in rather than drive, but the flight got delayed for 3 hours and they were expecting to land bout half eleven so they phoned to say by the time they had got through the airport and got to us it would be well after midnight, so they asked to see us around half nine in the morning…sorry pal we had been sat waiting all the time and are all fucked off that we’ve waited all day for nothing…all we can do is go tomorrow and see them, at least they have come and want to talk so lets keep our fingers crossed…I will talk to you at 8am my time…good luck with g!!!!”

There was then telephone contact between Hadley and Smit, Hadley and Perger and Hadley and Knaggs. In a PIN recorded call Smit told Koubari that he had phoned and told ‘them’ that he and Koubari were getting out. Koubari said that he had spoken to ‘George’ (Knaggs) and that ‘they’ had come up with another proposition, and wanted a third first, and that ‘they’ would pay in full when ‘they’ collected the other two thirds. Smit said that he had phoned ‘Mike’ (Hadley) and had told him that he was not happy with the situation. In another PIN recorded call, Koubari told Perger to continue with his flight plans and that he would give him a contact number before he flew. In a final PIN recorded call that day, Smit told Koubari that he wanted out, but was undecided as he wanted to make some money. He said that he had told ‘Mike’ that he was not carrying on for the time being. Koubari said that ‘they’ did not have to make a deposit and would collect one third, and within 24 hours ‘Mike’ had to collect the other 200. He said that if Smit did not take part the commodity would remain in Germany. Smit said that he was scared, but wanted to take the chance – stating that “we all want it to succeed” and “so we are back in business”.

[57]On 11 June 2009, in a PIN recorded call with Koubari, Perger said that he was not flying the following day because ‘they’ had cancelled it because of all the messing about. Koubari told Perger that Smit was back in, and Perger said that he would speak with ‘Mike’ (Hadley) and put everything in place. Shortly thereafter, Koubari rang Smit and asked him if he had rung ‘Mike’. Smit said that he had; that the lad who was there was back; and that ‘they’ still wanted to do it, but it would have to be next month. A few hours later, Alvarez and Rich arrived back from South America at Heathrow, where they were collected by Hector. Thereafter, Perger telephoned Hadley and, in a later PIN recorded call, told Koubari that the deal was back on, that the new date was the 21st, and that he (Perger) would be ‘out there’. Koubari said that he would see ‘George’ the following day.

[58]In PIN recorded calls on 13 June 2009, Koubari told Perger (who was complaining about money that he had lost on flights, and losing out on a lot of money by not going to work) that the date had been put back. Koubari said that he was angry about the whole situation, and that ‘George’ (Knaggs) was very angry and was going to have words with ‘Mike’ (Hadley). Arrangements were made for Perger to visit Koubari on the 5th, to meet Smit on the 6th and to fly out on the 10th. In a PIN recorded call on 14 June 2009, Koubari told Smit that he was taking ‘Tony’ out of everything as he was super stupid. Smit was now to organise everything, and the boat would leave on the 21st. In the meanwhile, they were to stay off the phones.

[59]In his Decision Record No.110 dated 17 June 2009 (now served) Mr Butterworth decided to contact the Dutch SIO to update him about the latest intelligence, from Koubari’s recorded PIN calls, in relation to Perger and Smit.

[60]On 20 June 2009, following a telephone call between Rich and Alvarez, Ruiz-Henao was visited at HMP Lowdham Grange by his brother Hector and Alvarez. They spoke in Colombian Spanish (which was recorded and translated) and talked in what was said to be highly incriminating detail about the need to be wary of surveillance, shipments in containers, a delivery in a month’s time followed by one every two months, buying goods from Diego (Bahos – see [74] below), the transportation fee, the cost of bribing a corrupt official, sums of money in Euros and US Dollars, and the need to build up capital.

[61]In PIN recorded calls on 1 July 2009, Koubari told Perger that he thought that ‘they’ were talking a lot of bullshit at the moment. Perger said that he was going to ring ‘him’ later that day or the day after. Koubari told Perger to keep the conversation ‘normal’. Perger then rang Hadley. On 2 July 2009, in another PIN recorded call, Perger told Koubari that he had spoken to “your friend’s mate” and that there was nothing wrong. Koubari said that he had not seen ‘George’ (Knaggs). Shortly thereafter, Perger telephoned Hadley again. On 5 July 2009, Perger duly visited Koubari at HMP Lowdham Grange.

[62]On 6 July 2009 Rich flew via Prague to Madrid, returning the following morning. After his return he called Alvarez and was in telephone contact with both Hadley and Knaggs (who were also in telephone contact with each other). On Wednesday 8 July 2009 Rich sent a draft email to Hadley, using the slimjim account, saying:

“hi mate, hope your ok…I have arranged to meet j on sat morning, and both of us are going...let me have a number for you to arrange it”

. On Monday 13 July 2009, following telephone contacts on 10 & 12 July 2009, Rich met Alvarez and two other males in London. In a PIN recorded call on 17 July 2009, Knaggs told Hadley that things had changed for the better – in that Hadley was going to get what he wanted, which was to sit down and speak with the ‘Gaffer’ / ‘Boss’ to sort things out, and that that would happen very quickly. On 19 July, Perger visited Koubari at HMP Lowdham Grange.

[63]On 29 July 2009, Hadley sent a draft email to Rich saying: “07501747165”. Later that day he called Rich using that number. On 30 July 2009 Hadley flew to Spain, returning the following day. On 4 August 2009 Rich, Hadley and Alvarez met a Colombian male near Stockwell tube station. On 6 August 2009, in a PIN recorded phone call, Koubari told Perger that there was some movement with the guy that Perger had been talking to before. Koubari wanted to know the people that ‘they’ were dealing with before he (Koubari) came aboard.

[64]On 7 August 2009, a meeting was observed between Hadley, Rich, Alvarez, two of Alvarez’s cousins and Hector at a public house that was situated about a mile from HMP Lowdham Grange. Alvarez and Hector then visited Ruiz-Henao, and there was detailed discussion (again recorded and again said to be highly incriminating) between them about Hadley and Rich’s forthcoming trip to South America, and the funding of any transaction. The prosecution alleged that Ruiz-Henao gave instructions to put pressure on ‘George’ (Knaggs) so that matters could progress, and to speak to ‘Mike’ (Hadley) about getting cash for travel expenses. After the visit Hector and Alvarez returned to the public house where Hadley, Rich and the others had waited, and a further discussion took place between them. The conversation, which was partly recorded, included reference by Hadley to travelling out himself and “6,000 each”. Rich referred to too many people being involved and the need to get ‘it’ done by September.

[65]On 15 August 2009, in a recorded PIN call, Koubari told Smit that “the other thing they are doing is going ahead”, and that Smit must protect himself. Koubari said that ‘Mike’ (Hadley) and ‘Vince’ (Rich) would leave to go to the other side to set things in motion again and sort out the paperwork. Koubari continued that he had told ‘Mike’ not to contact Smit until after he had been back for a couple of weeks in case he was being followed, and told Smit that ‘Vince’ had been to Spain to meet a friend of his to make sure that it all went to plan. Also that day, Ruiz-Henao was visited by his wife and others in prison and there was discussion about investing 10 - 15 million, routes and contacts in Colombia, about Ruiz-Henao’s need for trustworthy people outside prison, and that the others were in a hurry “because the pound 40 - 45 here it’s incredible” (said by the prosecution to be a reference to the then price per kilo of cocaine in the UK).

[66]On 17 August 2009 Hadley and Rich met at McDonald’s, Cortonwood. Later that day, during a recorded PIN call, Koubari told Smit that he was not confident with ‘Vince’ (Rich) and the others – as the last time everything had been in place and they did not turn up with the goods. Koubari said that the goods were already in a container but could easily be retrieved. Smit said that he was not happy to source another storage unit, so Koubari said that he would call it all off.

[67]On 19 August 2009, in a PIN recorded call between Knaggs and Hadley, there was cryptic reference to the sale of a ‘motorbike’ to a relative of Knaggs and the sale price. Hadley said that ‘they’ wanted to meet “half-way” at 11 o’clock tomorrow to see it. Knaggs said that he would ring his relative, sort things out, and then ring Hadley back before 11am the next day – which he did. At 11am on 20 August 2009, Hadley and Rich were observed meeting Alvarez and another man at Newport Pagnell Service Station and there was a discussion about travel (including whether they were all going to go together), flight arrangements and expenses – with Hadley saying:

“That’s what I do. If I can’t do it I’ll die trying. That’s how I’ve always worked. No ifs, no buts, that’s how it works”

. Also on 20 August 2009, £1,000 was paid into Rich’s Co-op account. On 21 August 2009, in a PIN recorded telephone conversation, Hadley told Knaggs that the sale of the ‘motorbike’ would be £3,000 rather than £2,000. Hadley continued:

“He weren’t having it at all mate. It meant having to re-advertise it, try and find somebody else”

. Knaggs said not to worry, as it would all be worth it anyway. Also, that day, Alvarez spent £1,089.60 arranging flights to South America.

[68]On 24 August 2009, Hadley flew from Leeds Bradford to Ecuador via Amsterdam, and Rich and Alvarez flew from Heathrow to Ecuador via Madrid. By 25 August 2009 Alvarez was in Colombia, and on 2 September 2009 £1,000 was paid into his bank account from Hadley’s Halifax account at the branch in Conisborough in South Yorkshire. On 6 September 2009, Rich drafted an email to Hadley stating: “hi mate, hope your arse returns to its normal size soon, hope it was a big butch man that violated you! My number is 3122666671…cheers pal”.

[69]On 7 September 2009, Hadley (who had been in Ecuador the day before) returned from Colombia via Amsterdam to Leeds Bradford. That day, Rich drafted two email messages to him. In the first he said:

“hi mate, the guy is called Gordo…his number is 07733702685. He is expecting your call tomorrow morning. The amount of money he needs is 106.211 pounds, that is everything included, even the 12 percent! Cheers pal”

In the second Rich said:

“hi mate, his wife’s details are…Halifax bank, M MOTATO…sortcode 11-04-73, account 00584749. jose account details…halifax bank D NARVAEZ…sort code 111713, account 00366566…share money between the two please…cheers pal”

[70]On 8 September 2009, Alvarez’s account received £1,000 from Hadley’s Halifax account. Rich then drafted an email to Hadley saying:

“hi mate her details are…M MOTATO…sort code 11-04-73, account 00584749…my cousin’s number is 07983 648059 his name is gary…cheers pal”

. Hadley replied:

“ok pal my number 07551890264”

. On 10 September 2009, Rich drafted an email to Hadley saying: “ok pal my number 07501747160 premo”.

[71]On 11 September 2009, in a PIN recorded call, Koubari spoke with Perger, who said that he had tried many times to get hold of a man who must have dropped his phone, and that ‘Mike’ had also cut his number. Koubari said that he believed that something had gone horribly wrong ‘out there’, and Perger said that it would serve them right. In another PIN recorded call shortly afterwards, Koubari spoke with Smit and told him that ‘Mikey’ had used a different route and had got different people to get the job done; that they were trying to get ‘cigarettes’ from America to Spain, but that the whole thing had gone horribly wrong; and that the person who had been supposed to hand over the material had done a runner with 200. Koubari said that he always wanted the money up front and was there to get ‘shit’ from A to B.

[72]On 17 September 2009, following telephone contact between Hadley and Knaggs, Hadley drafted an email to Rich saying:

“00573127251859, 00573148548032 his name carlos, you have the number from yopo, good luck pal x ring when you get him”

. On 18 September 2009, Hadley drafted another email to Rich repeating the telephone numbers and saying:

“this is the man you met with alex or his brother, you have the numbe”

. Later that morning, a further £1,000 from Hadley’s Halifax account was transferred to Alvarez’s account. On 19 September 2009, in a PIN recorded call, Koubari spoke with his brother and asked him to do him a favour by ringing an Englishman called ‘Mike’ (on a number attributed to Hadley) and saying that he was calling on behalf of Carlos and that the deal was no longer going ahead.

[73]It was on or around 22 September 2009 that a man called Diego Bahos (who was alleged by the prosecution to have been an associate of Ruiz-Henao, and to have arranged the supply of cocaine in Colombia) and two of his relatives were murdered.

[74]On 23 September 2009 Rich, in Colombia, drafted an email to Hadley saying:

“hi mate, this job is sending the stuff in a container full of fruit, they only use the bottom row so the figure we send is 80…your money pays for 20…the transport take to flat place and deliver container to a pre-arranged address, their fee for this is 40 units! That leaves 40 for us to sell…out of that 10 are yours to sell and keep the money, the other 30 we get for a good price to sell and make some money on…they can do this every month and have been running for 15 years. It takes 2 to 3 weeks to arrive. they are looking at sending 2 to 3 times and then upping the amount we send…they say its guaranteed and we only lose out if police catch…that’s all I know. cheers pal.”

. Shortly afterwards, Hadley replied:

“bought 25 not 20 so why only 20 now, I think taking the piss with 50% mate they were having a go at the other guys 33% if we are to work with them we should start by being straight with each other tell them, need to know return price to them? We have people to sort out at the landing end don’t forget. We should get any we buy at cost mate, do we sell the 80 or 40, tell them that they will not get better people to wo”

The following day, Rich and Alvarez extended their stay in South America by changing their return flights from that day to 12 October 2009.

[75]On 26 September 2009 Hadley flew from Manchester to Dubai, returning three days later. That same day, Ruiz-Henao was visited at HMP Lowdham Grange by his wife and others. The recording of the conversation showed that they spoke in detail about the shooting of Diego Bahos and its consequences, including a large amount of money being lost.

[76]At trial, the prosecution disclosed that on 29 September 2009 Operation Dearly had received intelligence that Hadley had an email account slimjim25@ymail.com and a user name James Smith and that, in consequence, on 30 September 2009 a preservation request, which had been authorised by Mr Butterworth, was received by Yahoo Inc USA.

[77]On 2 October 2009 Hadley flew to Amsterdam, where he was observed to be met and taken to Groningen. On 3 October 2009, Ruiz-Henao was visited by his brother Hector and others. Their conversation was recorded. There was discussion in detail about the death of Diego Bahos and the loss of the money. There were also highly incriminating references (it was alleged) to ‘it’ having been despatched and being ‘here’ around the 15th, as well as references to Knaggs, Hadley and Rich. On 4 October 2009, Hadley returned from Holland.

[78]On 9 October 2009 Rich, still in South America, drafted an email to Hadley saying:

“hi mate, met with both guys today…the stuff will arrive on the 16th, we will get the number on 15 or 16th to ring the man n pick it up…the money can be sorted out where you are with the guy you used for yours. Ive sorted an email out for later use. He told me the police found the hotel we used in c r, they also have been trying to find him as well, so im thinking that phone your using isn’t safe seen as I phoned from hotel, maybe ya should get rid by the weekend!!! He is also going to see someone who he thinks runs to s a, and will get back to us on it……d’s brother still ant sorted owt wi money, but says that his mate has got between 20 n 40 in sunny place n is taking it to where you are, so we’ve got chance to sell it, this is happening pretty soon but we can talk about it when I get back……plus its d’s brother that has got this contact in v place, so hes finding all info out that we need….that’s about it for now, talk to you in the morning pal”

[79]There was then telephone contact between the two of them, and on 10 October 2009 Hadley replied:

“07733852256 put the dates back on mate! what date do they want me over that end, do you know! what time do you get here and on what day, I need to get the tues flight it leaves at 9pm from m/c theres only one flight left to get me back to mets end and that gets me there on sat 17th we could do a chat before I go if poss.”

[80]On 11 October 2009, Perger visited Koubari at Lowdham Grange, and they discussed 200 kg of a commodity, concealments in liquid, transport from South American countries, ‘Mike’, and Koubari’s German contact.

[81]On Monday 12 October 2009, Rich, still in South America, drafted an email to Hadley saying: “hi mate, the stuff has arrived now but they need to get the container out of the docks and then get the stuff out of it, that’s why they need a few days. you will just get a address to pick it up from! the dates are 15 or 16th, but don’t panic one more day will not matter. when they ring with the number they will give details about how to pay! they are looking at every 20 days and say this will be reduced once we have done a couple because they will have the money to send 2 or 3 different containers at closer intervals. i land about tea time on tues, then ive to get tube to train station and then bout 1 hr 40 mins on train, when I get picked upi will ring on new phone, so it will be between 7 and 8. i will give my mate this email so he can send you the number once your over there. would have been nice to see ya for a chat before you went but its probably better I don’t see ya till you get back, gives me chance to see if im been followed!! Have a safe trip mate and ill see you soon x ps. If you come back wearing a white frock and hve a red dot on your forehead, our friendship is over!!!!!!!!!!!!”.

[82]In the late afternoon of Tuesday 13 October 2009, Rich and Alvarez arrived at Heathrow from Ecuador via Madrid. On 14 October there was telephone contact between Rich and Hadley and Rich and Alvarez.

[83]In his Decision Record No.188 dated 14 October 2009 (now served) Mr Butterworth recorded that he had decided to create an International Letter of Request for the Dutch case papers in relation to Operation ‘Samber’ to enable consideration of the prosecution of Hadley here for the Dover seizure being linked to the Rotterdam find – noting that the greater evidence of the cocaine conspiracy sat in the UK and that the evidence gathered by the Dutch would add to its weight. In his Decision Record No.191 dated 15 October 2009 (also now served) Mr Butterworth noted that previous surveillance of Hadley had identified him visiting the home of Metin Cicek, who had recently been sentenced to 4 years’ imprisonment; that it was believed that other members of Cicek’s family may well be helping Hadley; that Mr Branderhorst had a high level of interest in the Cicek aspect; and that he may well be able to assist Operation Dearly in providing Dutch investigative capabilities. In the result, he had decided to contact Mr Branderhorst about Hadley’s travel plans.

[84]On 15 October 2009, Rich visited an associate at Lowdham Grange and their discussion was covertly recorded. It was alleged that Rich spoke of nearly being killed twice whilst in South America – mentioning Panama, Costa Rica and two handguns.

[85]That same day, Hadley flew to Amsterdam and travelled on to Groningen where he booked into the Mercure Hotel. The Dutch authorities had been warned about his arrival. Dutch Police Reports, which were disclosed, indicated that information was received on 14 & 15 October from the British authorities to the effect that Hadley was due to travel to the Netherlands on 15 October, and giving various telephone numbers that he was associated with including one ending 256; that the police had sought an order from the Public Prosecutor to intercept that number; that the Public Prosecutor had obtained the necessary permission of an Examining Magistrate at the Rotterdam District Court (initially, as permitted, orally and later confirmed in writing), and had then authorised the intercept. Hence, from 16 - 18 October 2009, Hadley’s calls were intercepted on the 256 number.

[86]On 16 October 2009, there were four intercepted telephone calls between Hadley and Rich. In the first, Hadley told Rich that:

“Everything’s alright over in the other place”, and they agreed that it would be safer not to give Hadley’s telephone number to another person. In the second, Hadley told Rich that he had found ‘him’ and was sat with him, and that everything was now sweet, and they discussed how relieved they both were. Rich agreed to call ‘him’ at tea time and then to call Hadley. At 5.18pm Rich rang Alvarez, and then rang Hadley and told him that he had just rung the other person, but that person had not heard anything from another who was 6 hours behind. Hadley said; “Safety first with them mate. They’ve got to get it out haven’t they and get it put somewhere.”

Rich told Hadley that they were using a new system where it was actually put inside, previously it had been in the corners. Rich told Hadley not to panic if he did not hear from ‘him’ today. In the fourth call, Hadley explained that he didn’t want to speak previously because he had been sat with other people. Rich said that it was not the first time that their associates had done this – it had been done loads of times using fruit and the corners, in smaller sizes than they were planning to do on this occasion. They discussed concealments and a system for importing goods and agreed that there was nothing to worry about – it was now just a waiting game. Rich concluded “We had this last time and the next thing we will all end up fucking dead”.

[87]On 17 October 2009, there were another four intercepted telephone calls between Hadley and Rich. The first call was in the morning, when Rich said that he had not heard from ‘him’ and would chase ‘him’ up after a couple of hours. The second call was shortly after 3.30pm, when both expressed their frustration at waiting and Rich said that he would wait half an hour before ringing. At 4.22pm he rang Alvarez. The third intercepted call between Rich and Hadley was at 4.23pm. Rich said that he had spoken to ‘him’ and ‘he’ had phoned ‘that guy’ up, who had said that they were ‘here’ and safe; but would need a couple more days to take the stuff out because it was the first time they had done it and there was a lot of stuff to come out. There was also mention of an ‘old fellow’. Hadley said that he had to meet someone at the R place, right down at the bottom, but would be there (in Holland) until it had happened, and they were all happy. They discussed surveillance with Hadley saying:

“They can fucking watch us all they want mate, were mates and that’s it, we’ve done nowt wrong, let em prove any different”

. That call ended abruptly when Hadley’s number ran out of credit – as he explained in the fourth intercepted call a few minutes later.

[88]In an intercepted call on Sunday 18 October 2009, Rich and Hadley discussed the ongoing delay, with Rich saying that he might call on Monday night.

[89]A Dutch Police Report was disclosed which indicated that on 19 October 2009, at their request, the Public Prosecutor had obtained the necessary permission of the Rotterdam District Court (again, initially orally and later confirmed in writing) and had thereafter authorised interception of calls made on Hadley’s mobile handset with the IMEI number ending 9700. That had led to the interception of calls by or to Hadley during the remainder of his stay in Holland using that handset and a Dutch telephone number ending 429.

[90]In the morning of Monday 19 October 2009, a call was intercepted during which Rich and Hadley again discussed the delay – agreeing that they should know more by the following day. At around 5 pm that day Rich was in telephone contact with Alvarez, after which he rang Hadley telling him that he had been in touch with ‘him’, that ‘he’ had heard nothing and that they needed another couple of days. Hadley complained about the stress of the situation and wasting £100 per night waiting.

[91]On 20 October 2009, a call from Hadley to Rich was intercepted during which Hadley explained that he had changed to a local phone number and mentioned a mate in Pakistan. They discussed the delay and their continuing frustrations. Rich said that the stuff would be “shit hot” when they got it out.

[92]In the morning of 21 October 2009, Rich was in telephone contact with Alvarez, after which there were several intercepted calls between him and Hadley. In the first, Rich said that he had just been on the phone with ‘him’. He and Hadley discussed people being in different time zones and a further delay meaning that Hadley would have to re-book his flight. Hadley also mentioned the “kid I’ve got in Pakistan”. In the late afternoon Rich was again in telephone contact with Alvarez, and then rang Hadley. It was said that Rich told Hadley that he had spoken with ‘him’ and said that he was worried about people “in the C place” (Colombia) turning their phones off, and that ‘he’ had asked if Rich had spoken to ‘George’. ‘He’ had said that ‘he’ had spoken to a friend who was in with ‘George’, and that ‘George’ (Knaggs), who thought that Rich and Hadley had brought back $30,000 from South America, wanted Rich to visit him. That call was cut off, whereupon Hadley rang Rich and they discussed Rich going to see ‘George’; having lost the money because people had been killed; the delay; and worries about why people “in the C place” should have their phones turned off. ‘Jose’ (Alvarez) was mentioned in the context of being someone in contact with others overseas. Hadley mentioned using a top man in Dubai. Shortly after 6pm Hadley rang Rich again and told him to get ‘him’ to call Hadley “on this number”. Rich expressed concern about passing the number over the phone, but Hadley said:

“It’s going to get fucking dumped anyhow”

. Shortly afterwards, Rich was in telephone contact with Alvarez. At 6.35pm, Hadley received a call from an unknown male using a Dutch number. They discussed the delay and the fact that Hadley was concerned about his friend in Pakistan (“the guy with the paperwork to buy all these things”). However, they agreed that he (Hadley) would stay for a few more days and that the caller would ring him if he knew anything. Hadley later called Rich and they discussed people ripping off Diego Bahos’s family, and how to deal with ‘George’ (Knaggs) and the $30,000 – with Hadley complaining about Colombians. In subsequent text messages between them, Hadley said: “It feels like we have been fucked mate” and Rich said, amongst other things: “Oh well pal, lets see what the next few days bring…keep ya chins up”.

[93]In the first two calls between Rich and Hadley in the morning of 22 October 2009, Rich expressed his reluctance to visit ‘George’ (Knaggs). They discussed being ripped off and agreed that the amount was a lot for “over there” (Colombia). Rich said that he and Hadley knew exactly where to find the scammers if they travelled back “over there”. They also discussed the fact that Rich had told the family that he had a load of money, and that he was interested in buying something over there. Rich wondered whether something had happened to their associates to make them ditch their phones, or whether possibly someone had been arrested. Thereafter he rang Alvarez, after which there were further recorded calls between him and Hadley. Rich told Hadley that he had just spoken to ‘him’, and that he had threatened him. He also told Hadley that he had decided to visit ‘George’ (Knaggs). Rich said that he would call someone about the $30,000 before he went to see ‘George’, and would tell ‘George’ that he had not been in touch with Hadley and did not know where he was. Before visiting Knaggs, Rich was again in telephone contact with Alvarez. Rich’s visit to Knaggs was covertly recorded. In the first half of the meeting they talked about the rental of business premises called The Beauty Box. It was alleged that, thereafter, they talked about a failed cocaine importation (which Knaggs said that he had called off), and about a future agreement to import cocaine (which part of the conversation was the alleged foundation of Count 2). As to the failed importation, it was alleged that, having expressed various concerns about security, Knaggs had said that he had “pulled the fucking plug” and that “It’s just gonna cost me a few quid”. After the visit there were further intercepted calls between Rich and Hadley. Rich told Hadley about the visit, saying that a prison officer was sat close to them and so they could not speak properly. He said that ‘George’ would sort everything out with Hadley, and that he had told him that he had not seen Hadley – who said that he thought that ‘George’ was telling different people different things. Rich said that he had made himself so red hot that he did not want to do anything at the moment. Nevertheless, he and Hadley discussed wanting to get a call from someone ‘down there’.

[94]In the morning of 23 October 2009, Rich was in telephone contact with Alvarez again. He then called Hadley and told him that he had spoken to ‘him’ – who had still not heard anything. Hadley said that “Something’s not right”. In a subsequent call Rich told Hadley that he would send him someone’s number so that he (Hadley) could speak to them direct. Shortly thereafter, Hadley rang Alvarez’s number – introducing himself as ‘Mike’ and referring to Rich as ‘Vince’. The recipient of the call said that everything was alright and urged Hadley to be patient. Hadley then texted and called Rich – explaining that the man had said that he was getting a phone call ‘today’. Just after 9pm, Rich tried to get into telephone contact with Alvarez. A few minutes later, in a text, he explained to Hadley that he had tried but could not get through; and that he had sent a text but had yet to receive a reply. Hadley then rang Rich, saying that he was worried that something may have happened to their contact. They likened their position to waiting to be executed. Rich said that he would try the contact again or text him. Hadley said that he would be returning (to England) the following day. Hadley then sent a text message to Rich asking:

“Have you got the email address they are using”

. Rich responded in a draft email on the slimjim account:

“agroindustrias-internacionales@hotmail.com password...decopapa\murdo2008”

He then texted Hadley:

“Ive just put it on our site for ya!”; to which Hadley responded: “I ment have you had a look to see if anything was put on”; to which Rich replied: “yes ive looked, nothing on mate”

. A piece of paper with, written on it, details of the agroindustrias Hotmail account and the password, was found when Alvarez was arrested in Paris on 7 November 2009 (see [103] below).

[95]In the morning of Saturday 24 October 2009, Hadley called Alvarez’s number, introduced himself as ‘Mike’, and had a conversation about contacting associates. He then called Rich and related the previous conversation. The two of them then decided to meet their contact face to face, and also discussed moving the date back and the quantity ‘40’. They were frustrated at the failure of their plan. Hadley explained that he would be back in England at tea time, and that he was going to dump his phone. Thereafter they were in telephone contact and Rich was in telephone contact with Alvarez.

[96]In Decision Record No.206 dated 27 October 2009 (now served) Mr Butterworth recorded his decision to travel to Holland with the CPS lawyer to liaise with Ms De Boer and Mr Branderhorst regarding Hadley’s latest visits and to seek their formal agreement to use the Rotterdam seizure evidence in the UK courts.

[97]On 28 October 2009, Hadley and Rich met up at McDonald’s at Cortonwood and were also observed to be conducting extensive anti-surveillance. That evening Rich used the slimjim account to draft a message to Hadley in relation to a particular vehicle about which he was concerned, saying: “it was in the same place when I drove back down, I swapped cars and went back and it had gone that was around 10ish have you seen anything mate”.

[98]Early in the morning of 29 October 2009 Rich drafted another email, the final version of which was:

“hi mate that is the first time ive seen them anywhere, you know what im like with looking round…ive never seen that van before… i was thinking about it last nite and if they were following me, why did they not follow me straight away instead of waiting until you came up to where i was… (I think we both need to keep our heads down)… they could be watching either one of us with the amount of places we have been a lately! why not gey ya money out of that job and back off things for a bit?? it’s better safe than sorry”

Hadley ultimately replied:

“sounds like a good idea will wait for our friend to get in touch today have you spoke to him! The thing with the van is that it got there before me mate, and i told no one what what i was doing or going, they could have your car tracked have you been using that one a lot, think did you tell anyone where you were going and were you in the car on the phone when you told them, I think this is because of visits to prison mate, easy place to listen to all that’s been said by – but they have to put things together to find out who is who, you know he was talking to at least 3 people who we know and could not stop of that phone, you visiting two off the same wing and him being who he is and what he is doin.”

He also advised Rich to stay away from the prison.

[99]In the afternoon of 29 October 2009, Hadley tried to get into telephone contact with Alvarez, and then drafted an email to Rich saying:

“sounds like a good idea will wait for our friend to get in touch today have you spoke to him! I have tried but he is not answering the phone, can you try the other one you have mate”

Later that afternoon Hadley was in telephone contact with Alvarez, after which he drafted an email to Rich and Alvarez ultimately saying:

“spoke to j he is putting new one on here this is mine mate 07760900542 leave on for j j I will be at k/c at 14.30 can you meet me or put on here place I have to meet you, this bit is for j not for you v [j has this email address doesn’t he v]”

Thereafter, Hadley was in telephone contact with Alvarez.

[100]In Decision Record No.208 dated 29 October 2009 (now served) Mr Butterworth recorded that he and the CPS lawyer had met Ms De Boer and Inspector Branderhorst in Holland, and that it had been established that the Dutch had initiated their own investigation into Hadley’s activities in the Netherlands. He recorded that a copy file of Dutch evidence had been provided, and that Ms De Boer and the CPS lawyer were happy that the material gathered by the Dutch could be lawfully used in the UK courts should it be allowed by SOCA policy and the requirements of the CPS. He therefore decided to seek to use Dutch telephone intercept of Hadley during his recent stay in Holland as evidence in a UK court.

[101]In the morning of 30 October 2009, Rich responded to Hadley’s last draft, saying:

“hi mate, got ya number…yes j got this email. talk to you soon”

. On 1 November 2009, Hadley drafted an email to Rich saying:

“no meet up mate don’t know what the fuck is going on, out the email address on here what they gave will you. I think the prison visits or the problem with the van, and you left your phone in the van outside while you went in mate, you never know what they will get up to mate stay away from prison and the phone your mate has been using”

That was the last use of the slimjimaccount.

[102]Thereafter, and in the period from 2-5 November 2009, there were numerous telephone and text contacts between Hadley and Alvarez. After further contact on 6 November 2009, Hadley and Alvarez met in the late evening at Newport Pagnell Services - after which Hadley sent a text message to Alvarez telling him to be careful.

[103]On 7 November 2009, Alvarez was arrested in Paris taking delivery of 2.6 kilos of cocaine (which was not said to be in furtherance of the instant conspiracy). He had in his possession slips of paper one of which had “MIKE SLIMJIM25@YMAIL.COM AMERICANO 69” written on it, and another of which had “agroindustrias-internacionales decopapa/murdo 2008” written on it.

[104]On 11 November 2009, the cells of Knaggs, Ruiz-Henao and Koubari were searched. A piece of paper recovered from Knaggs’ cell contained details of addresses in Colombia, a contact number in Colombia “to leave messages”, and details in relation to Ruiz-Henao and Hector – with a London number to “leave a message”. A diary found in Knaggs’ cell contained Hadley’s address and his partner’s email address. A piece of paper was found in Ruiz-Henao’s cell which was alleged to list properties owned by Knaggs and his relatives which were intended to be sold to raise money for the purchase of drugs in Colombia. On the same day a search was carried out at Hadley’s address. A laptop computer was recovered, examination of which revealed that it had been used to log on to the slimjim account, and drafts and fragments of draft email communications on that account were also found on it. During a search at Rich’s address a computer tower was found which, examination subsequently showed, had also been used to log on to the slimjim account. Later, a concealed SIM card was found by independent Counsel in LPP material taken from Knagg’s cell – though there was a dispute as to who had put it there.

[105]On 21 November 2009, during a prison visit by his wife and children, Ruiz-Henao was recorded discussing in detail the failure of the operation, his suspicion that it had been infiltrated, the arrest of Alvarez in Paris, and the prospect of a successful prosecution.

[106]In interview after eventual arrest:(1) Knaggs said that he knew Koubari and Phillips slightly, but had known Hadley for some years and had spoken with him about various matters including bio fuel. He believed that Hadley had gone to Ecuador about bio fuel. He knew Ruiz-Henao who was also at HMP Lowdham Grange. He did not recall Rich ever being referred to as ‘Elvis’ or ‘Vince’. He said that he had used a SIM card in prison because he did not trust the prison PIN system. He falsely claimed that he did not recognise the document that had been found in Philip’s cell.

(2) Rich said that he had travelled to South America with Alvarez, who was a friend. He had no business contact with Hadley, did not know Ruiz-Henao, and had had no close contact with Knaggs since Knaggs had been in prison.

(3) Hadley said that he had travelled either on business related to bio fuel or for a holiday. He accepted that he had had contact with Knaggs via phone calls and visits. However, in a prepared statement, he denied knowledge of any drugs, saying that he had rented the Dutch warehouse unit in connection with the sale of stone and marble.

(4) Ruiz-Henao declined to answer questions.

[107]On 13 January 2010 (albeit that, initially, both made statements saying that it was on 10 January) Inspector Branderhorst handed four discs of intercepted calls to SOCA officer Webster, and on 11 February 2010 the CPS issued a formal Letter of Request to Ms De Boer asking her:(1) After obtaining any necessary judicial or other authority, to forward copies of the interception of communications carried out during Hadley’s visit to the Netherlands in October 2009.

(2) To obtain a statement from the police officer who wrote the police report requesting the interception of communications and recording of telephone data, together with any other relevant documentation.

(3) To obtain a statement from the prosecutrix to confirm her view that the crime under investigation was serious enough to ask the examining magistrate to authorise interception; to confirm that she had received such authorisation in this case; and that she had given her own order to the police authorising them to intercept.

(4) To obtain from the court file the signed authorisations of the examining magistrate.

(5) To obtain a statement from a police officer to confirm receipt of the order to carry out interception, which numbers and calls were intercepted, and to exhibit copies of the computer discs.

[108]In February 2010, a Letter of Request was sent to the US authorities requesting all stored communications and other files reflecting communications to and from the slimjim account. On or about 19 April 2010, Yahoo Inc in California received a search warrant from the FBI for records relating to the slimjim account. The records, consisting of 5 pages (dealing with the user profile and the dates times and IP addresses for logins) and a CD-R (dealing with “snapshots” of the email content and email headers on the account) were produced in statements by Julia Albert (a Custodian of Records at Yahoo Inc) and sent to the FBI – after which they were forwarded to SOCA and thereafter copies of them were served.

[109]In a letter dated 17 June 2010, Ms De Boer responded to the Letter of Request, but gave only information about the original ‘Samber’ investigation. However, in a letter dated 4 November 2010, she granted permission to use the transcripts of the calls intercepted in “operation Samber”, including calls that were made with or by another person.

[110]In a letter dated 22 July 2011, which was disclosed shortly thereafter, Ms de Boer made clear that the original Dutch investigation ‘Samber’ had lasted until 4 June 2009; that a new Dutch investigation called ‘Samber 2’ had started on information provided, by the British authorities through the international department of the Dutch National Police Force, that Hadley was due to travel to the Netherlands on 15 October 2009 in relation to the imminent supply of cocaine into the UK. In the result, she had decided that there was enough probable cause to justify the use of special investigative measures against Hadley, Mesut Cicek (the brother of Metin) and other persons of interest. Accordingly, in accordance with Dutch law, and obtaining the prior approval of a judge when needed, she had authorised wire taps, and the obtaining of historic telecommunication data and data of a hotel booking (relating to Hadley).

[111]At the trial of Knaggs, Hadley, Rich, Koubari, Smit, and Philips, which began in mid-September 2011, the prosecution also adduced evidence that Colombia was not exporting bio fuel products and proved the previous drug-related convictions of Knaggs, Ruiz-Henao, Koubari and Philips as evidence of propensity.

[112]Before Inspector Branderhorst gave evidence on 4 October 2011, the intercepted calls had been played to the jury, who had agreed transcripts of each. The transcript of the Inspector’s evidence shows that, amongst other things, he said that:(1) Under Article 67 of the Dutch Criminal Procedure Code interception was permitted in relation to certain offences and applied in Hadley’s case.

(2) The procedure for interception was that the police would make a written report to the Public Prosecutor seeking interception; the Public Prosecutor would then make an application to an Examining Magistrate; if granted by the Magistrate the court order would be given to the Public Prosecutor who would then issue their own order to intercept; the two orders would then be sent to Regional Interception Unit in Holland, who would then forward the orders to the relevant service provider (if the number was Dutch) or to all the service providers in Holland (if the number was foreign, or the warrant related to a handset), who would then provide a live feed to the Regional Interception Unit where any calls would be recorded and stored.

(3) There was also an emergency procedure whereby the various applications and grants could be made orally, provided that written versions of the orders of the Court and the Public Prosecutor were thereafter provided to the service provider within three days.

(4) All the intercepts in this case had been carried out lawfully by the Regional Interception Unit, where on 30 November 2010 he had made copies of the intercepted calls on four discs which he had handed to Mr Webster on 13 January 2011, and which he formally identified.

[113]In cross-examination on behalf of Knaggs, Inspector Branderhorst said, amongst other things, that the service providers would not act without a court order. Absent the jury, counsel then appearing on behalf of Hadley made clear that he did not suggest that the discs were not genuine. Counsel then appearing for Knaggs indicated that Knaggs had an expert report which indicated that the XML file was not in numerical order. In further cross-examination on behalf of Knaggs, Inspector Branderhorst said that he did not know if the British authorities had been in contact prior to the authorisation of the intercept.

[114]During the trial, as a result of enquiries by Knaggs’ then representatives which were brought to the attention of the prosecution by Rich’s counsel, a Deputy Compliance Manager at Yahoo, Emily Nick, made a statement to the effect that the word “snapshot” referred to the making of a copy of all email content that existed in any folders in an email account at a moment in time, and that Yahoo had produced two such snapshots (one the result of the preservation request, the other the result of the warrant). She also said that an email that a user had deleted from their account prior to the time of preservation would generally not be available. (2). The Defence cases

[115]The defences put forward by each of the then defendants were as follows:(1) Knaggs’ case on Count 1 was that he had had no intention to import cocaine into this country, rather he had been involved in a scam with Philips, and later with Koubari, to defraud Hadley of money supposedly for the transport of drugs. His motive for defrauding Hadley was that he had carried out extensive work for Hadley in relation to Hadley’s successful appeal (in 2006 – see below) but had not received any remuneration. His intention had been to involve Hadley in what appeared to be a drugs operation, but which was in fact a fiction, to try to obtain a cash deposit on the false basis that money was required for transport. Hence his scheme had involved what, on the face of it, was a plausible plan to import drugs, and any evidence appearing to disclose an agreement to import cocaine was no more than part of that scam. However, he had only ever spoken to Hadley about transport, not drugs. He was aware that Hadley was intending to import oil but had played no part in that himself. As to Count 2, his case was that the recording of the conversation with Rich on 22 October 2009 did not demonstrate an agreement to import drugs – at most it was boastful nonsense, rooted in the discovery by Rich and Hadley of the scam, and a desire on his part to mollify Rich. He accepted that he had lied in interview about the document found in Philips’ cell – saying that he had not wished to admit a connection with a document that related to drugs, and that he had not wished to implicate others. He called witnesses, including a fellow prisoner, Mr Flook, who said that Knaggs had spoken to him about scamming someone.

(2) Hadley said that his only involvement was in an agreement to import vegetable oil for bio fuel. He had believed that it would be concealed in an importation of cigarettes to avoid payment of duty. He also adduced evidence that he had attended a course on bio fuels and had access to what was said to be relevant equipment. He did not dispute any of the draft emails and intercepted calls (albeit saying that some calls were missing) but said that they were to do with the oil venture, not drugs. He denied all knowledge of the drugs the subject of Counts 3-7, saying that his involvement with Cicek was in relation to travertine stone. He denied lying in interview about his visits to Holland and Dubai. He also alleged that as a result of the overturning, in 2006, of his conviction, in 2004, for conspiracy to supply heroin consequent on disclosure failings in relation to surveillance evidence (see

[2006] EWCA Crim 2544

), and of Mr Butterworth having been involved in that case, and of Hadley having commenced civil proceedings against a number of those involved including Mr Butterworth, the instant investigation had, in consequence, been biased and improper, as evidenced by various matters including: (a) Mr Butterworth telling one of Hadley’s interviewing officers not to reveal to Hadley that he (Butterworth) was the SIO. (b) Concerns about parts of the surveillance on 28 October 2009 and other aspects of the investigation including the conduct of Mr Butterworth (based on the allegations, in particular, of two SOCA Officers Miss Powell and Mr Webster, which had been disclosed in detail shortly before the trial). (c) The fact that his case had not been investigated with sufficient care. (d) The fact that, after the initial arrests, a listening device had been placed in his car for some months; that during some 100 hours of recordings he had said nothing incriminating; and that the installation of the device and the recordings had only been disclosed during the trial.

(3) Rich said that Hadley was an acquaintance of his who he knew to be a successful business man. Hadley had approached him to assist in the sourcing and importation of vegetable oil. He had been present at the meeting with Hadley and Smit in Eindhoven on 22 April 2009 but had played no part in it. There had been no mention of cocaine or any other drug, but he had overheard conversation about transportation, which he had believed to be in relation to the bio fuel scheme. He had travelled to South America on 3 occasions – the first in 2008 for a wedding; the second when he had been introduced to Alvarez (who Knaggs had introduced to Hadley), and he had been taken to various meetings, at which Alvarez had translated, which he had believed to be about sourcing oil; and the third, with Alvarez and Hadley, when he had been trying to develop a relationship with Alvarez’s niece. Again, he had understood any discussions to be about oil. He did not dispute the content of the slimjim draft emails and accepted that he had written some of them – but said that (for the most part) they were messages between Alvarez and Hadley. As to the Dutch intercept recordings, which he did not dispute, the shipment that was due to arrive in October 2009 was one of oil but was being transported in a container carrying counterfeit cigarettes because Hadley had wished to avoid duty on the oil. He denied lying about his business arrangements with Hadley and said that in interview he had not been asked about either bio fuel or cigarettes.

(4) Koubari’s case was that he had agreed with Knaggs to pretend to import cocaine to target Rich and Hadley – who had agreed to buy drugs from others in South America and to pay him for the transport. However, the plan had proved to be impossible to put into operation. He further alleged that he had been threatened by a police liaison intelligence officer.

(5) Smit’s case was that he had agreed to help Koubari in a plan to import cocaine into somewhere in Europe – but that he had intended to run off with the transport down payment. He said that he had no idea whether the plan to import had been genuine or not, his only interest had been in appropriating the down payment in the expectation that if he succeeded the drugs suppliers would not supply their drugs for import.

(6) Phillips did not give evidence. His case was that it could not be proved that the document found in his cell on 17 September 2008 related to Count 1, and that there was no evidence that he was party to any conspiracy.

[116]Ruiz-Henao was represented by a solicitor and two counsel at his trial, but represented himself at his re-trial. He did not ask any questions during the prosecution case and gave and called no evidence. It was his case that the prosecution had not proved that there was a conspiracy to import cocaine; that even if they had, they had not proved that it was a conspiracy to import cocaine into the United Kingdom (as opposed to into some other European country); and that even if they had, they had not proved that he was a party to that conspiracy. He relied, in particular, on what he asserted to be a lack of proof of prior dealings between himself and Alvarez; limited contact with Alvarez during the indictment period (with no telephone contact after 10 April 2009 and no evidence of any contact at all after 7 August 2009); a comment that he had made during the recorded conversation on 21 November 2009 (“never to England, it was Belgium or Holland”); and the fact that, during 2009, he had made three applications (which were in evidence) to move prison. (3). The ultimate issues at trial

[117]In the trial of Knaggs and the others the ultimate issue on Count 1 was therefore whether it was proved that the defendant being considered had been party to a conspiracy to import cocaine into the United Kingdom. On Count 2 it was whether it was proved that Knaggs and Rich had been party to a different conspiracy to import cocaine. On Counts 3-7 it was whether Hadley had conspired with others to import the specific drugs.

[118]The ultimate issues in Ruiz-Henao’s re-trial were whether it was proved that there was a conspiracy to import cocaine into the United Kingdom; and, if so, whether it was proved that he was a party to that conspiracy. (4). Rulings in the Crown Court – Knaggs, Hadley & Rich

[119]Prior to trial, and albeit that he had not been involved in any of the calls himself, Knaggs raised the admissibility of the Dutch intercepts as an issue, submitting that they were not authorised by the Dutch authorities and had not been made in the circumstances as claimed by the prosecution. In July 2011, his representatives invited the court to make a request for assistance on his behalf to the District Court of Rotterdam under the provisions of s.7 of the Crime (International Co-operation) Act 2003 – as to whether any application or order was ever made in respect of the telephone numbers ending 256 and 429, together with the provision of the relevant court orders, underlying material relied upon and the date when the application was made; and to the Public Prosecutor’s Office for details of the public prosecutor responsible for the application, the identity of the suspects in relation to whom surveillance was undertaken, and the telephone numbers in relation to which the application was made

[120]The application was heard by HHJ Inman QC on 4 & 5 August 2011 – in part ex parte to avoid prejudice to Knaggs. It was submitted that the intercepted calls formed an important part of the case against him; that it was alleged that they had in fact been intercepted in the UK and had been dressed up to appear foreign; and that the material served to date by the prosecution was not sufficient to prove that they were Dutch intercepts and properly authorised – which was relevant to admissibility and might amount to an abuse of process.

[121]The judge underlined that it was for the prosecution to prove that the intercept material was admissible in evidence; that he would make that determination prior to trial; and that the prosecution had said that all material authorising the intercepts would be disclosed in accordance with the CPIA. The request for underlying material was, he said, extremely wide and it would be inappropriate to make such a request of a foreign jurisdiction, particularly in respect of suspects under surveillance in what might be an ongoing operation. The application, as drafted, was for the court to make a very large unfocused request for information to which a defendant in the UK would not normally be entitled – hence, in the terms sought, it was refused.

[122]On 13 September 2011, the judge gave a long ruling in relation to various requests for further disclosure. He recorded that, in relation to admissibility, Knaggs had sought disclosure of copies of the authorisations from the Dutch court for any covert surveillance and/or telephone intercepts that were undertaken; full details of Operation Samber, including its start date and the identity of the Dutch prosecutor in charge of it; copies of the information sought in the letters of request and the information that was provided by the British to the Dutch; all Dutch intercept orders; witness statements of the officers who carried out the interception; witness statement(s) from the authorising Dutch prosecutor(s) who had applied for the court orders; copies of the requests to intercept the relevant telephone numbers; and copies of the original four CDs supplied by the Dutch.

[123]The judge noted that, in response, the prosecution had asserted that they had served all the relevant information that would establish that the intercepts had been lawfully obtained and were admissible, and that there was no documentation in their possession which could or may assist the defence in arguing to the contrary. The prosecution had also indicated that the four original CDs had been, or would be, brought to court for examination and copies (in addition to the compendious disc already served) provided.

[124]Against that background the judge decided that, at that stage, he was satisfied that no order was necessary for the disclosure of further material but said that when he considered the admissibility of the intercepted calls any question of further disclosure that might arise would be considered or reviewed.

[125]As to the slimjim evidence, the judge noted that Knaggs wished to dispute admissibility, and that it was submitted on his behalf that, as part of doing so, he needed to check that the CD that he had been provided with by the prosecution was a true copy of the original. Again, the prosecution had said that the original could be brought to court and copied again if necessary. Against that background, the judge recorded that he was satisfied that no further disclosure should be ordered in that regard.

[126]In a ruling on 15 September 2011, the judge dealt with the admissibility of various aspects of the evidence, including the evidence in relation to the Dutch intercept and the slimjim account.

[127]As to the Dutch intercept evidence, it had been submitted in behalf of Knaggs that Aujla

[1998] 2 Cr.App.R. 16

was authority for the proposition that for such evidence to be admissible in this country three things must be shown – that the calls were not intercepted in the UK; that they were not at the behest of the authorities in the UK; and that they had been shown to meet the admissibility requirements of the country of origin. However, the judge concluded, Aujla was not authority for such propositions. If the calls were recorded outside the UK the statutory bar under RIPA did not apply to them and (subject to s.78 of PACE) they would be admissible if relevant to an issue in the case – with the factors identified in Aujla being relevant to such a decision.

[128]The judge recorded that the prosecution had disclosed the Letter of Request seeking the Dutch intercept evidence; the letter from Ms de Boer dated 17 June 2010 (see [109] above) setting out how, in March 2009, she had decided to start an independent investigation (‘Samber’), during which no investigative powers were deployed at the request of the British authorities, and that she had authorised telephone tapping after receiving authorisation from an examining magistrate; the second letter from Ms de Boer dated 22 July 2011 (see [110] above) setting out how the ‘Samber 2’ investigation had started on information that Hadley was to travel to the Netherlands on 15 October 2009, and how she had authorised wire taps after first receiving the necessary warrants from an examining judge; a copy of a Dutch police application for the investigation of telecommunications; 4 CDs (one containing calls between Mr Hadley and a lady friend, the other three being relied on and having been copied onto a single disc for each defendant – including an electronic time stamped file); statements from Inspector Branderhorst and Mr Webster dealing with the hand-over of the CDs; and copies (in Dutch and English translation) dated 15 & 20 October 2009 of orders made in relation to the relevant numbers. Whilst the judge referred to the orders as being court orders, it appears that they were the prosecutor’s orders – which referred (with reference numbers) to the preceding court orders.

[129]On behalf of Knaggs it was submitted that no original court orders had been produced; that the copies did not have a court stamp upon them; that there was no evidence as to who had actually carried out the intercepts; that it was suspicious that different people referred to the Dutch operation as ‘Samber’, ‘Samber 1’ and ‘Samber 2’; that it was also highly suspect that in his original statement Inspector Branderhorst had given a different date as to the hand-over of the CDs; and that time was needed for a defence expert (Mr Clues – whose funding had just been authorised and who was at court on 15 September 2011) to examine the original CDs.

[130]The judge concluded that he was sure that the prosecution had sent the Letter of Request to the Dutch requesting the material supplied for the purpose for which it was being used; that the Dutch had investigated Hadley and Cicek; that drugs were recovered from where they were said to have been recovered and that Cicek had been imprisoned; that the request made by the Dutch police to intercept calls and the copies of the court orders were genuine; and that the discs had not been tampered with. He also noted that Hadley did not take any issue with the accuracy and genuineness of the recorded calls – indeed, that he relied upon the content of some of them. Likewise, Rich had not suggested at any stage that the evidence was not genuine or inaccurate.

[131]Against that background, the judge reached the ultimate conclusions that he was satisfied that the evidence of the phone calls was reliable; that there were no sensible grounds for concluding that the phone calls were or may not have been intercepted, as demonstrated by the documentation, or were not what they appeared to be, or had been tampered with; that he was therefore satisfied that the evidence (the relevance of which was not disputed) had been lawfully obtained in Holland, and lawfully requested by the UK authorities; and that, lawfully obtained or not, it was wholly reliable and its admission in evidence could not conceivably so adversely affect the fairness of the trial that it should be excluded under s.78. The application for an adjournment was also refused, as any expert examination should have been done months before and, in any event, would have no bearing on admissibility.

[132]As to the slimjim draft emails, the judge recorded that the Letter of Request had been disclosed, and that the prosecution relied on the statement dated 7 May 2010 of Ms Albert (see [108] above) who, with a business declaration, had produced the 5 pages of evidence and one CD from Yahoo Inc. Albeit that he was not a party to the drafts, it was submitted on behalf of Knaggs that there was no continuity; that in her first statement Ms Albert had referred to two CDs not one, and that there should be an expert report on behalf of Knaggs but that that had been prevented by funding approval problems with the Legal Services Commission.

[133]The judge noted that Mr Hadley had not disputed that the slimjim account was accessed from his computer, nor that what had been found on the computer was genuine and had not been tampered with.

[134]Against that background, the judge concluded that there were no grounds at all for considering that there was any doubt that the evidence was lawfully obtained in the USA. Rather, said the judge, it had been lawfully requested by Letter of Request and was being used for the purpose for which it was obtained. Equally, there were no grounds whatsoever for considering that the evidence was in any way unreliable and therefore, lawful or not, it was evidence that could quite properly go before the jury. There were no grounds for exclusion under s.78 and therefore the evidence was admitted.

[135]At the conclusion of the prosecution case, an abuse of process application was made on behalf of Knaggs, Hadley and Koubari. It was based on various matters including alleged disclosure failures; the assertion that the Dutch intercept evidence was not what it purported to be and that proper authorisation of it had not been disclosed; the assertion, following enquiries made online of Yahoo agents about Yahoo’s ability to recover deleted emails, that slimjim emails may have been adulterated; and (based, in particular, on the concerns of the two SOCA officers Miss Powell and Mr Webster) that there was bad faith at the core of the investigation.

[136]In ruling against the application, the judge confirmed that during the prosecution case there had been no challenge, by either Hadley or Rich, to either the Dutch calls or the slimjim draft emails. (5). Rulings in the Crown Court – Ruiz-Henao

[137]In November / December 2011, before his first trial Ruiz-Henao made an application under Regulation 16(2) of the Criminal Defence Service (General) (No.2) Regulations 2001 (SI 2001 No. 1427) (“the 2001 Regulations”) in relation to his then Legal Aid solicitors Daniel Berman & Co. He asserted, amongst other things, that he could not communicate with them; that he had been given only part of the papers; that he had not been given an opportunity to see his Defence Statement; that his Defence Statement (which had been served by the solicitors on his behalf on 28 July 2011) had been served on other defendants without his authority; that it was wrong; and that he had refused to sign it. He had also complained to the Solicitors Regulation Authority (although that complaint was later withdrawn). The application was considered, and refused on the papers, by the Recorder of Birmingham.

[138]On 10 April 2012, after Ruiz-Henao’s first trial, the case was listed before HHJ Chambers QC (who, it will be recalled, had presided over the first trial) to fix a date for the re-trial. However, proposed new counsel attended and made another application under Regulation 16. He advanced similar points to those advanced in the November 2011 application, with additional complaints as to events during the first trial – in particular, that Ruiz-Henao had been told not to give evidence because of issues with his Defence Statement (which had been constructed without his instructions). The proposed new solicitors were Salhan & Co. Ruiz-Henao’s’s trial counsel asserted in response, without breaching privilege, that a lot of what the judge had been told in support of the application was palpable nonsense, but that arrangements had been made for Mr Berman, a senior solicitor at Daniel Berman & Co., to see Ruiz-Henao.

[139]The judge underlined that Daniel Berman & Co had not had an opportunity to comment on the application and that (having presided over Ruiz-Henao’s first trial) there were things in the application which he, the judge, knew to be palpably wrong. Ultimately the judge said that he was not making a determination, as the established practice was for requests for transfer to be determined by the Recorder of Birmingham, but that nothing that he had heard suggested merit in renewing the application. The judge made clear that Ruiz-Henao needed to understand the hard work undertaken on his behalf by his trial lawyers and that there would be a re-trial. If legal aid was not transferred, the choices would be for the present able team to continue to represent the Applicant, or alternatively it would be likely that the certificate would be discharged, and that he would have to represent himself, which would not be to his advantage. The trial date was fixed for 6 June 2012.

[140]On 13 April 2012, following a meeting with Ruiz-Henao, Daniel Berman and Co. wrote to the Court refuting the allegations that had been made against them, but indicating that they felt that they could no longer act. Thereafter the application to transfer representation to Salhan & Co was renewed and was ultimately referred to HHJ Chambers QC for determination.

[141]In his comprehensive ruling the judge set out the history, including his own observations of the interaction between Ruiz-Henao and his trial counsel; the fact that Ruiz-Henao had appeared to be content not to give evidence; and that the principal issue raised at trial on his behalf had been whether the recorded prison visit conversations proved a conspiracy to import drugs into the United Kingdom – as opposed to some other European Country. The judge continued:

“9. For the reasons set out above, I am driven to the conclusion that now that his brother has been acquitted, this defendant wants to run a different defence that he thinks would be more likely to find favour with a jury, such as the defence run by Koubari. It is inconceivable that he was not aware how his case was to be put or that that was done without his instructions. Whether or not his Defence Statement was signed by him, and it probably was not, is irrelevant. The real question is whether his case was run on his instructions; it clearly was. There were many conferences and he was not the sort to sit back and say nothing. He could hear what was going on and appeared fully content. He had able and experienced solicitors and counsel. Likewise I do not believe that he was bullied against his will not to give evidence. The clear inference is that he is seeking to contrive a breakdown with his present solicitors for his own ends. He needs to understand that if he runs a different case at the re-trial it is likely to be the subject of legitimate comment by the prosecution whatever the Defence Statement said at the first trial or whether it was signed or not and whoever represents him and whether he is unrepresented.”

[142]The judge then went on to consider Regulations 16 & 17 of the 2001 Regulations and a number of authorities (to all of which we refer in [149] – [153] below). He then continued:

“14. Returning to the present case, huge public expense has already been expended by the current solicitors and counsel on behalf of the defendant. On the basis of everything that I have read about this application and know as the trial judge I am not satisfied that any of the grounds under regulation 16 are made out. In my judgement this is a deliberate attempt by a defendant to manipulate the system and engineer a breakdown of his relationship with Daniel Berman & Co. I am not satisfied that there has been an irretrievable breakdown (the assertion that they wanted him to instruct other solicitors of their choosing if they could not act even if correct, is irrelevant to the matters that I have to decide). If there has been a complete breakdown, then I consider it to have been deliberately engineered by him so as to justify me in not exercising my discretion in his favour. 15. Accordingly this application to transfer the representation order is refused and Daniel Berman & Co remain on the record as the defendant’s solicitors for the forthcoming re-trial. 16. As stated above, the defendant has an able and experienced team of of solicitors and counsel who, to my mind, served him well at the first trial before me. He would be well advised to continue with them. I hope that he and his solicitors can patch up their differences, and that notwithstanding the contents of their letter, Daniel Berman & Co can be sufficiently “thick skinned” in the best traditions of their profession, to continue to act. 17. Having refused the application, it is now for the defendant to decide whether he wants to ask Daniel Barman & Co to continue to act for him or whether he wishes to be unrepresented at the re-trial and represent himself. He needs to understand that if he represents himself he will be subject to the same rules of evidence and procedure as any other defendant. He will be aware that this is a very serious offence and, if convicted, he is facing a very substantial prison sentence. 18. Notwithstanding my comments above, if he decides that he does not wish to be represented by Daniel Berman & Co, or they decline to continue to represent him, I will be minded to withdraw the representation order, pursuant to Regulation 17. I therefore propose to have the case listed for mention very soon with the defendant to be produced, so that the defendant can tell me what he has decided and, if necessary, for me to withdraw the order. 19. The re-trial will proceed when listed and the defendant should know that he will be expected to be ready whether represented or not.”

[143]The case was next listed on 15 May 2012, when Ruiz-Henao decided to represent himself, and the re-trial was re-fixed for 24 October 2012.

[144]In a subsequent Defence Statement, in English, dated 27 August 2012, Ruiz-Henao admitted presence during conversations on visits where the subject matter was the supply of drugs, but said that he did not accept the prosecution’s interpretation of the recordings and wished to instruct his own expert so as to challenge both what the prosecution expert claimed that he had heard and the English translation of it – but, it was said, despite asking the prosecution and the court, he had as yet received no assistance in how to instruct such an expert. In any event, he asserted, he had never agreed to the criminal supply of drugs; none of the conversations could reasonably be construed as more than a mere negotiation; it was apparent that the only agreement ever reached in the case was to scam others; and, in any event, his conversations, whether pretended or real, were about supply into mainland Europe, never into the UK. He then raised issues as to whether the evidence in relation to Dutch intercept and the slimjim account was legally obtained or admissible. He also made a number of specific requests for disclosure.

[145]At hearings on 12 July 2012 and 8 October 2012, the judge reminded Ruiz-Henao of the trial date and, at the latter hearing, further warned him that the re-trial would proceed on the fixed date unless there were the most exceptional circumstances.

[146]The first indication of private funding being sought by Ruiz-Henao was about a week before the re-trial. On the fixed date, 24 October 2012, Salhan & Co solicitors (albeit not on the record) appeared pro bono on behalf of Ruiz-Henao, indicating that they and counsel (Mr Cooper QC) were willing and able to represent him, but not until there was funding in place. An application was made to adjourn until 29 October 2012 to enable funding for representation to be put in place. The judge was told that a first potential source of funding had come to nothing, but that Ruiz-Henao had been pursuing another source of funding through a Mr Rhodes, a self-employed builder. Mr Rhodes gave evidence before the judge that he hoped that contracts would be paid which would enable him to be in sufficient funds by 26 October 2012. He said that he did not know Ruiz-Henao, but that his new partner (whose first name only was given) did. However, no documents were produced to show that such funding might be available, nor was there any evidence as to the source of the money, nor had any due diligence been begun. Nor, indeed, were Salhan & Co prepared to come on the record in anticipation of the receipt of funds. In those circumstances, given that the prosecution was ready to proceed; that a witness (Inspector Branderhorst) had attended from abroad to deal with any voir dire; that a timetable for legal argument had been set; and given the history of the case to that point, including the uncertainties as to funding and provenance, the application was refused.

[147]Thereafter, still on 24 October 2012, there was a voir dire in relation to the Dutch intercept evidence – during which Mr Branderhorst gave evidence. The prosecution relied on the Public Prosecutor’s Orders which referred to the preceding Orders granted by the Rotterdam Magistrate, and the evidence was admitted.

[148]On 25 October 2012, the judge heard an application to exclude the slimjim account evidence but concluded (as he had done at the outset of Ruiz-Henao’s first trial, when Ruiz-Henao was represented) that the evidence had been lawfully obtained and was therefore admissible Legal Framework (1). Transfer of legal representation

[149]Ruiz-Henao’s application to transfer his legal representation from Daniel Berman & Co to Salhan & Co was made under Regulation 16 of the 2001 Regulations which were in force at that time and provided that:

“(1) Where a representation order has been granted an application may be made to the court before which the proceedings are heard to select a litigator in place of a litigator previously selected, and any such application shall state the grounds on which it is made.(2) The court may: (a) grant the application where: (i) the litigator considers himself to be under a duty to withdraw from the case in accordance with his professional duties of conduct and, in such a case, the litigator shall provide details of the nature of such a duty; (ii) there is a breakdown in the relationship between the assisted person and the liquidator such that effective representation can no longer be provided and, in such a case, the litigator shall provide details of the nature of such breakdown; (iii) through circumstances beyond his control, the litigator is no longer able to represent the assisted person; or (iv) some other substantial compelling reason exists; or (b) refuse the application.” (a) grant the application where: (i) the litigator considers himself to be under a duty to withdraw from the case in accordance with his professional duties of conduct and, in such a case, the litigator shall provide details of the nature of such a duty; (ii) there is a breakdown in the relationship between the assisted person and the liquidator such that effective representation can no longer be provided and, in such a case, the litigator shall provide details of the nature of such breakdown; (iii) through circumstances beyond his control, the litigator is no longer able to represent the assisted person; or (iv) some other substantial compelling reason exists; or (b) refuse the application.”

[150]Regulation 17 obliged the court to consider withdrawal of a representation order if “the assisted person declines to accept the order in the terms which are offered” or “where the representative named in the...order declines to continue to represent the assisted person”.

[151]In R v Smith (Henry Lee)

[2006] EWCA Crim 2307

this Court said that there was no evidence of “a breakdown in the relationship between the assisted person and the representative” where the defendant had invented a spurious reason for dispensing with the services of his legal representatives.

[152]In R v Ulcay

[2007] EWCA Crim 2379

Sir Igor Judge P (as he then was), giving the judgment of the Court, said: “The purpose of this part of the regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to the fact that the lawyer offers sensible, but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for change of legal representative, he may well explain to the defendant that the consequences may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not allowed to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation”.

[153]In R v Iqbal (Naseem)

[2011] EWCA Crim 1294

this Court again emphasised that, on applications to transfer representation, vigorous scrutiny was needed to avoid disruptions to trials and adverse effect on the public purse. Broadly the same approach applies to the Regulations now in force – see e.g. R (Sanjari) v Birmingham Crown Court

[2015] 2 Cr.App.R. 30

. (2).

Disclosure / special counsel

[154]The statutory scheme as to disclosure before and at trial in 2011 & 2012 was set out in Part 1 of the Criminal Procedure and Investigations Act 1996, as amended. It does not require setting out herein. It suffices to record that under s.3(1) the initial duty of disclosure required the prosecutor to disclose to the accused any material which had not previously been disclosed and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused; and that s.7(A) required that, after initial disclosure, the prosecutor had to keep the position under review until the accused was convicted or acquitted.

[155]The leading authority as to disclosure before and at trial was and remains R v H (above - in which Hadley was one of the Appellants). Material may assist the accused not only where it could be used to explain the accused’s actions, support his case, have a bearing on scientific or medical evidence in the case, or provide material for cross-examination of prosecution witnesses, but also where it might lead to the exclusion of evidence or a stay of proceedings, or a finding that any public authority had acted incompatibly with the accused’s rights under the ECHR. However, there is no duty on the prosecutor to disclose unused material that is or may be supportive of their case or neutral. As Lord Bingham said at [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”.

[156]The duty of disclosure after conviction was considered by the Supreme Court in R (Nunn) v Chief Constable of Suffolk Constabulary (above). The Court concluded that, whilst the CPIA does not apply, the prosecutor has a common law duty to disclose any relevant material, not already known to the applicant/appellant, which might assist the applicant/appellant in casting doubt upon the safety of their conviction.

[157]In R v Alibhai (above) at [57] the Court said:

“…in a case where a complaint is made of non-disclosure of documents, it is not always necessary for an appellant to demonstrate that the disclosure of the material would have affected the outcome of the proceedings. As was observed in R v Ward (1993) 96 Cr App Rep. 1 at page 22:- “Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence”

We accept that in many cases it would suffice for an appellant to show a failure on the part of the prosecutor to meet disclosure obligations so that it is reasonable to suppose such failure might have affected the outcome of the trial. It is a matter of semantics whether this means that it is necessary upon an argument of this kind for a defendant to demonstrate “prejudice”. That said, even where there has been a failure on the part of the prosecution to make disclosure, this court will not regard a conviction as unsafe if the non-disclosure can properly be said to be of “insignificance in regard to any real issue”: see R v Maguire (1992) 94 Cr App Rep. 133 at page 148”. “Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence”

[158]In R v Austin

[2009] EWCA Crim 1960

(“Austin No.2”) at [30] the Court concluded that: “It is well established that a failure by the Crown to comply with its duty of disclosure will constitute a ground of appeal. Whether a conviction is thereby rendered unsafe will depend on the nature of the matter not disclosed in the context of the issues in the case and the other evidence”.

[159]In R v Garland

[2016] EWCA Crim 1743

at [55] the Court said that, whilst regard may be had to the question of what impact the withheld material might have had, the ultimate question is whether, taking into account all the circumstances of the trial, the material that should have been disclosed causes the Court to doubt the safety of the conviction.

[160]R v H (above) was concerned with disclosure relevant PII material. As to special counsel, at [22] Lord Bingham said:

“There is as yet little to express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice, to secure protection of a criminal defendant’s right to a fair trial. Such an appointment does however raise ethical problems, since a lawyer who cannot take full instructions from his client, nor report to his client, who is not responsible to his client and whose relationship with the client lacks the quality of confidence inherent in any ordinary lawyer-client relationship, is acting in a way hitherto unknown to the legal profession. While not insuperable, these problems should not be ignored, since neither the defendant nor the public will be fully aware of what is being done. The appointment is also likely to cause practical problems: of delay, while the special counsel familiarises himself with the detail of what is likely to be a complex case; of expense, since the introduction of an additional, high-quality advocate must add significantly to the cost of the case; and of continuing review, since it will not be easy for a special counsel to assist the court in its continuing duty to review disclosure, unless the special counsel is present throughout or is instructed from time to time when need arises. Defendants facing serious charges frequently have little inclination to co-operate in a process likely to culminate in their conviction, and any new procedure can offer opportunities capable of exploitation to obstruct and delay. None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant. In the Republic of Ireland, whose legal system is, in many respects, not unlike that of England and Wales, a principled but pragmatic approach has been adopted to questions of disclosure and it does not appear that provision has been made for the appointment of special counsel: see Director of Public Prosecutions v Special Criminal court [1999] 1 IR 60.”

[161]In R v Chisholm

[2010] EWCA Crim 258

at [44]-[52] the Court made “…some tentative observations about the use of special counsel in an appeal against conviction where the grounds of appeal relate to a witness anonymity order and special counsel was instructed at trial”. At [48] the Court said: “At the appellate stage, it is obviously not the case that whenever the single judge or the full court is considering an application for leave to appeal against conviction on grounds relating to an anonymity order, it will request the appointment of special counsel. In many cases, the court, on reading the closed material will be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However, there may be cases where, before deciding whether to grant leave, or on granting leave, the court might consider it necessary in the interests of justice to request that special counsel be appointed. This might be for a number of possible reasons: the court may consider that help is needed from special counsel to ensure that it has all the material which it ought to have; the court might want to know whether special counsel, having read the grounds of appeal and supporting advice, would wish to present argument in support of any of the grounds of appeal on the basis of material not known to the applicant or the applicant’s ordinary counsel relating to what happened in the closed proceedings. Or there might be questions on which the court feels that it needs the assistance of special counsel to do justice. These matters would call for individual consideration in the individual case”.

[162]In R v Austin

[2009] EWCA Crim 1527

(“Austin No.1”) and Austin No.2 (above) the Court was concerned with appeals against convictions for cocaine importation in which the prosecution evidence had included recordings of landline and mobile telephone calls said to have been made in Colombia. The Court, in open and closed judgments, concluded, amongst other things, that in ruling on the admissibility of both types of call the judge had wrongly taken into account material that had been put before him in “PII hearings”. In any event, new material then came to light in consequence of which the Respondent conceded the appeal and a retrial was ordered. Thereafter the prosecution offered no evidence on the importation charges, and after that Austin was tried for money laundering offences and convicted. Austin No.3 (above) was concerned with his appeal against that conviction, on the Ground that the trial judge had wrongly taken the closed judgments in the previous appeals into account (which he had obtained with this Court’s approval but without informing either of the parties) in ruling on an abuse of process application. In the result the court considered the power of the trial judge and the Court of Appeal to view unused material, and the appointment of special counsel at first instance and on appeal. In dismissing the appeal, the Court decided, amongst other things, that:(1) It was important to keep firmly in mind the difference between the issues of disclosure and abuse of process. Disclosure is concerned with the question of what material should be disclosed to the defence with a view to it being deployed before the tribunal of fact, and it is the everyday experience in criminal proceedings that a judge may be required to examine material that is prima facie disclosable and it might (although only exceptionally) be appropriate for special counsel to be appointed for this purpose. If the judge ruled against disclosure the judge would put the material out of his mind for the purpose of any subsequent rulings in the case, including any ruling on abuse of process. All that was well established. Abuse of process was different because it involved a substantive determination, thus for a judge to determine such an application by reference to material that the defence had not seen created a difficulty.

(2) The judge was entitled to accept, and should have accepted, the assurances of leading counsel for the prosecution that there was not material to disclose to the defence which was capable of supporting the abuse of process argument.

(3) The judge could, however, have informed the parties that by reason of the unusual history he wished himself to review the relevant material from the earlier case in order to satisfy himself that proper disclosure had been made in the latter case. Had he so informed the parties he would have been entitled to proceed to read the closed judgments for that purpose. Such a step would have been entirely proper and in accordance with the principles set out in the case law.

(4) It would have been permissible for the judge to have appointed a special counsel to help address the question of disclosure, given the unusual history of the case. However, there was no obligation on him to do so. It had been open to the judge to conclude, without special counsel, that disclosure obligations had been properly discharged. Whilst it might be that the appointment of special counsel to consider disclosure would have been a reassurance to the defendant, that was a question of judgment for the judge, which he could properly exercise either way.

[163]As to the position on appeal, at [79], by reference to a line of cases from R v McDonald

[2004] EWCA Crim 2614

to R v Ebcin

[2005] EWCA Crim 2006

, the Court said: “As all parties have recognised, where an appeal is brought in connection with an issue of PII or disclosure……it is essential that the Court of Appeal should have the capacity to view material that is undisclosed to a defendant, since otherwise the appeal process would be emasculated. The function of the Court of Appeal is different from that of a jury, in that the prime consideration for the Court of Appeal is the safety of a conviction. In such circumstances the choice for the court is stark: either to review undisclosed material which remains undisclosed to a defendant and his representatives, or to appoint special counsel to see the material and argue on a defendant’s behalf, subject to the necessary limitations”.

[164]Having referred to the judgment in Chisholm (above), the Court continued at [80]: “…Not infrequently, the Court of Appeal must consider material which cannot be revealed in order to decide whether a conviction is or may be unsafe. As the Court emphasised in Chisholm, the court will often be able to reach a view about the propriety of what happened and the safety of the conviction without any need for special counsel. However it must be an added safeguard for a defendant in an appropriate case, that the assistance of special counsel can be sought…..For our part we associate ourselves with the observations made in Chisholm and need add nothing to them, save perhaps to commend the help given to us by special counsel in this case”.

[165]In R v Clarke & Shepherd

[2017] EWCA Crim 37

(to which we were referred) the Court set out the procedure to be followed on appeal in relation to PII issues – whether the exercise was originally conducted in the Crown Court or was being conducted for the first time in relation to post-trial disclosure. (3). Interception

[166]Section 17 of RIPA (which was in force at the material time) provided that: “(1) Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings [or Inquiries Act proceedings] which (in any manner)–(a) discloses, in circumstances from which its origin in anything failing within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur. (2) The following fall within this subsection – … (b) a breach by the Secretary of State of his duty under section 1(4) of this Act;

(c) the issue of an interception warrant or of a warrant under the interception of Communications Act 1985; … (a) discloses, in circumstances from which its origin in anything failing within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or (b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur. … (b) a breach by the Secretary of State of his duty under section 1(4) of this Act; (c) the issue of an interception warrant or of a warrant under the interception of Communications Act 1985; …

[167]The effect of s.17, combined with the other provisions of RIPA, was, with very limited exceptions of no relevance in this case, to prohibit reliance on any evidence obtained by an interception warrant.

[168]Section 1(4) of RIPA required that where the UK was party to a mutual legal assistance treaty in connection with the interception of communications which required the issue of a warrant or equivalent, the Secretary of State was under a duty to ensure that no request was made by the UK except with lawful authority – defined in s.1(5) as including authorisation under s.3 or s.4 of RIPA or an interception warrant pursuant to s.5(1). Both the UK and the Netherlands were parties to the Convention on Mutual Assistance in Criminal Matters, which requires that any request from a foreign state to intercept telecommunications must include “confirmation that a lawful interception order or warrant has been issued in connection with a criminal investigation”. Thus, in order to procure Dutch interception via the Convention the UK authorities would first have to issue an interception warrant under s.5(1)(b) of RIPA, the existence of which would trigger the prohibition in s.17, making the product of the Dutch intercept inadmissible in this country. However, that does not prevent less formal liaison between police and prosecutors in this country and police and prosecutors abroad, including the provision of information by one to the other. If the foreign police and prosecutors carry out any intercept during or after such liaison the admissibility of the intercept in this country will depend, as the cases immediately below illustrate, upon the particular facts of the case and consideration of s.78 of PACE.

[169]In R v Aujla

[1998] 2 Cr.App.R 16

, the appellants were charged with facilitating illegal entry, and the evidence against them included calls from two Dutch offenders in Holland which had been intercepted under authorisation granted, without the knowledge of the English police, by the appropriate judicial authority in Holland. The statute then in force in this country was the Interception of Communications Act 1985. The Court concluded that admissibility turned on the application of s.78 of PACE, including consideration of the circumstances in which the evidence was obtained. Equally, the giving in evidence of the Dutch intercepts would not elicit the Secretary of State’s sources of knowledge or the surveillance authorities’ confidential methods of work (which were the public policy issues underlying the prohibition on use of UK intercept by the 1985 Act). Finally, the court underlined that even if it were to emerge that there was some breach of Dutch law, and it could be said that there was some breach of Article 8, that would not necessarily result in the exclusion of the evidence.

[170]In R v P

[2002] 1 AC 146

, the public prosecutor in another country had obtained an order from a magistrate authorising the interception of calls made by a drug smuggling suspect. The intercepts resulted in tape recordings being made of telephone conversations between the suspect and each of the Appellants – including calls from the other country to the UK and vice versa, or when both parties were either in the other country or in England. The English prosecuting authorities, via a Letter of Request, sought and, after judicial approval in the other country, obtained the recordings and proposed to put them in evidence. Approving the decision in Aujla (above), the House of Lords held that although the proposed use involved an interference with the accused’s article 8 rights no breach had been shown because all had been done in the other country pursuant to statutory authority and subject to judicial supervision; that, after consideration of s.78 of PACE the trial judge had been right to rule in favour of admission; that there was no rule of public policy, independent of statute, that intercept should not be used in a criminal trial; and that, where secrecy was not required in the public interest, it was “necessary in a democratic society” within article 8(2) for all relevant and probative evidence including intercept evidence obtained abroad, to be admissible to assist in the apprehension and conviction of criminals and ensure that their trial was fair.

[171]The House also noted (in accordance with abundant authority which it is unnecessary to set out herein) that a defendant is not entitled to have unlawfully obtained evidence excluded just because it has been so obtained. What he is entitled to is an opportunity to challenge its use and admission in evidence, and a judicial assessment of the effect of its admission upon the fairness of the trial as is provided for by s.78. (4). Fresh evidence

[172]Section 23 of the Criminal Appeal Act 1968 provides that:

“(1) For the purposes of an appeal, or an application for leave to appeal, under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice- (a) order the production of any document, exhibit or thing connected with the proceedings, the production of which appears to them necessary for the determination of the case…….. (1A) The power conferred by subsection (1)(a) may be exercised so as to require the production of any document, exhibit or other thing mentioned in that subsection to- (a) the Court; (b) the appellant; (c) the respondent. (2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to- (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.” (a) order the production of any document, exhibit or thing connected with the proceedings, the production of which appears to them necessary for the determination of the case…….. (a) the Court; (b) the appellant; (c) the respondent. (a) whether the evidence appears to the Court to be capable of belief; (b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal; (c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and (d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

Ruiz-Henao’s renewed application for leave on his Ground 5 (1). Introduction

[173]As originally drafted, Ruiz-Henao’s Ground 5, in relation to which the single judge refused permission, asserted that he was denied a fair trial as he was prevented from giving his evidence because of concerns that he had.

[174]In correspondence with the Criminal Appeal Office after that refusal, Ruiz-Henao sought to broaden the ambit of Ground 5. Against that background, and whilst not supporting the renewed application, Mr Harding invited the court to consider Ground 5 in an amended form, along the lines of the following: “The Applicant was denied a fair trial and his rights under

Article 6 of the ECHR

were breached in that:(a) He was not afforded adequate facilities for the preparation of his defence;

(b) He was prevented from being represented by a representative of his own choosing;

(d) He could not fully understand or speak the language used in Court, and he was not provided with an interpreter; and

(e) Through a lack of understanding of the criminal justice system, the lack of an interpreter and the lack of a legal representative, the Applicant was unable to advance his true defence. The trial was not a fair trial and the conviction of the Applicant is unsafe”. (a) He was not afforded adequate facilities for the preparation of his defence; (b) He was prevented from being represented by a representative of his own choosing; (c) He was unable to examine the witnesses against him or to obtain the attendance of witnesses on his behalf; (d) He could not fully understand or speak the language used in Court, and he was not provided with an interpreter; and (e) Through a lack of understanding of the criminal justice system, the lack of an interpreter and the lack of a legal representative, the Applicant was unable to advance his true defence. (2). The arguments

[175]Mr Harding underlined a number of the matters raised by the Applicant in correspondence (whether with the Criminal Appeal Office or his former legal representatives), namely that:(1) He did not receive a fair trial and his rights under

Article 6 of the European Convention on Human Rights

were infringed.

(2) The breaches of his rights went wider than the original Ground 5 pleaded, in that the trial was rendered unfair by more than the fact that he was prevented from presenting his full defence through concerns that he had.

(3) He was denied equality of arms, in that he was not afforded legal representation and was obliged to represent himself in a complicated and serious trial, and where he had no litigation support to trace and marshal witnesses;

(4) He was effectively prevented from calling other witnesses for the defence, owing to his incarceration as a Category A prisoner and lack of representation. He sought assistance, by letter to both the Crown and the Judge in this respect, but said that he had received no help. On 2 December 2012 at 14.25 he had said in court: “For me to give evidence I will have to call my witnesses and I have asked the Court and the CPS for assistance, but nothing was done”.

(5) He was not provided with an interpreter and was therefore denied the fundamental right to understand the criminal proceedings against him and to contribute to them. He was unable to cross-examine the prosecution witnesses because he was not able to formulate the questions he would want to ask in English, and therefore was effectively prevented from challenging the Crown’s case.

(6) Although he had some facility in English, this was completely insufficient for the purposes of defending himself at trial, and because of the problems with understanding more complex sentences and with vocabulary, he was often unable to follow what was going on in the trial.

(7) The fact that he required an interpreter was clearly recognised after the trial when, in 2013, the trial judge ordered that the Serious Crime Prevention Order which was imposed on Ruiz-Henao should be served on him in both its original form and in a Spanish translation.

[176]We have also taken into account the Applicant’s own expressions of the substance of Ground 5 as now pursued – in particular in the correspondence listed in his letter to Mr Harding dated 20 July 2017. In essence, he submits that he was denied the opportunity to present his defence – due to the lack of representation, the lack of an interpreter, his own position in custody, and his lack of knowledge of the criminal justice system. In particular, he asserts, there was no good reason for an interpreter not to have been provided, as one was present during his first trial and was interpreting for both him and his brother. In the result, he submits that his rights under Article 6 (b), (c), (d) & (e) were breached during his retrial.

[177]On behalf of the Respondent it is variously submitted or underlined that:(1) At the first trial the interpreter was specifically employed to assist the Applicant’s brother and was not required by the Applicant.

(2) At no point between the service of Ruiz-Henao’s first Defence statement on 28 July 2011 and the end of his first trial did he express any concern about that Defence Statement.

(3) The Applicant never waived privilege.

(4) After the refusal of legal aid transfer to Salhan & Co, the Applicant had chosen to represent himself.

(5) For the reasons that he gave, the judge was perfectly entitled, as a matter of discretion, to refuse the application to transfer representation and the application to adjourn the re-trial in order for private funding of representation to be secured. Indeed, as to the latter, he had had the advantage of hearing Mr Rhodes give evidence, and no documentary evidence to support the alleged likely existence of funds had been produced.

(6) The judge had ruled (and had carefully explained to Ruiz-Henao) that if he wished to adduce any evidence that caused him any concern the evidence would be heard in private. However, in the afternoon of 6 November 2012, after the judge had checked that the Applicant did not wish to receive any more guidance and the Applicant had confirmed that he had had enough time to think about it, the Applicant indicated that he did not wish to give any such evidence.

(7) Before making his closing speech, Ruiz-Henao declined the offer of a Colombian Spanish interpreter – see the reference at p.5D of the Transcript of the summing-up.

(8) As illustrated by the references to it at pp. 12A-C, 36F-37A, 45G, 46D, 47C-D, 48C, 48F, 52D-F, 65H-66A, 73G-74A and 80F-83H of the Transcript of the summing-up, the Applicant’s closing speech demonstrated that he was clearly competent and aware of the arguments relevant to his defence, and presented his arguments in a structured and logical way.

(9) The summing-up was impeccably fair, including as to the fact that the Applicant was representing himself – see the Transcript at p.5B,F-G. (3). Conclusion

[178]This Ground is much wider than the version of it that was before the Single judge. It also includes assertions that are not backed up by evidence. In our view, whether viewed individually or in any combination, the aspects now sought to be advanced do not provide an arguable basis for the contention that there was any breach of Article 6.

[179]Ignoring the need for an application for formal permission to amend (as required by R v James [2018] 1 W.L.R. 2749 at [38]) our reasons are that:(1) There is obvious force in the various points made by the Respondent.

(2) The judge presided over the first trial and thus, albeit that Ruiz-Henao did not give evidence, was well able to assess his ability to speak and understand English.

(3) The more so as there was an interpreter at the first trial, but he was used by Hector, not by Ruiz-Henao.

(4) Likewise, the judge presided over various hearings prior to the re-trial, necessarily considered the new Defence Statement that Ruiz-Henao had drafted in English, and presided over the re-trial itself – thereby having considerable further opportunity to assess Ruiz-Henao’s ability to speak and understand English.

(5) In the result, the judge was entitled to conclude that Ruiz-Henao’s English was of a sufficiently high standard to ensure that no interpreter was required and that his trial was fair.

(6) The fact that the judge offered Ruiz-Henao the services of an interpreter for his closing speech and required him to be served with both English and Spanish versions of the Serious Crime Prevention Order shows nothing more than the belt and braces fairness of the judge, whereas Ruiz-Henao’s refusal of the interpreter is telling, as is the quality of his closing speech – as attested to by the many references to it in the summing up.

(7) Ruiz-Henao was represented by solicitors and two counsel at his first trial. The judge’s consideration of the application to transfer legal aid representation was in scrupulous accord with the 2001 Regulations and the authorities, and his conclusion that Ruiz-Henao was endeavouring to manipulate the system cannot be criticised. In the result, Ruiz-Henao chose to dispense with his experienced and able lawyers and to represent himself. Nor is there any arguable basis upon which to suggest that the judge’s decision (having heard evidence) to refuse to adjourn the start of the re-trial (to enable the possibility of private representation to be further explored) was wrong.

(8) Albeit that he was in Category A custody, it is simply not the case that Ruiz-Henao was prevented from challenging, giving or calling evidence. Indeed, he chose not to take advantage of the Judge’s indication that any evidence that caused him concern could be given in private. The facilities available to him were not arguably inadequate.

(9) It is also clear from the transcripts that the judge was astute to ensure that, whilst representing himself, Ruiz-Henao did understand the system and that the summing up was scrupulously fair – including the directions in relation Ruiz-Henao’s English and lack of representation. Disclosure / special counsel (1). Introduction

[180]It will be recalled that on 15 December 2017, the Court exercised its power under s.23(1)(a) of the Criminal Appeal Act 1968 and formally requested the Respondent to bring to Court any material in its possession that touched on the two Grounds of Appeal – in case the court wished to review it, or any of it, during the appeal.

[181]As also indicated above, at the outset of the hearing on 19 December 2017 (against the background of the late service / disclosure by email the day before of the eight Decision Records of Mr Butterworth) it was variously submitted on behalf of Knaggs, Hadley and Rich that the Respondent’s position that there was no further material to be disclosed had been shown to be unreliable; that the substance of the late disclosure supported the Appellants’ assertion that the obtaining and provision of the Dutch intercept had been for the purpose of UK prosecution in circumvention of RIPA; and that in those circumstances the Full Hearing could not take place until the “continuing re-review” mentioned by the Respondent in its email had been fully explained and completed, further disclosure had been provided to the Appellants, and Special Counsel had been provided. (2). The arguments

[182]Mr Tim Owen QC, on behalf of Knaggs, Hadley and Rich said that their position was one of concern and bemusement as to the circumstances in which the new material had emerged. They did not know that any ongoing review was taking place and there should be a s.9 statement setting out the nature of the review, who was conducting it, and the completion date. Unless that was established, the appellants could not be satisfied that the disclosure exercise had been completed.

[183]Further, Mr Owen submitted, by reference to R v Austin (No.2) (above) and the arguments about the appointment of special counsel advanced at the Further Directions Hearing on 11 July 2017, and given the context that there was an issue (raised, in particular, by two SOCA officers) as to the good faith and integrity of Mr Butterworth (albeit that permission to appeal had not been granted on that issue), there was a legitimate concern about the integrity of the disclosure exercise which was disturbing and such that special counsel should be appointed. At trial, counsel then appearing for Knaggs had tried to investigate the relationship between SOCA and the Dutch and compliance or otherwise with the law, including the suggestion that the evidence had been procured against the background of the decision to prosecute here, and that there had been no independent Dutch investigation. That was the allegation that had been pursued for the last 3 ½ years, and a reading of the now disclosed Decisions tended to confirm it. In the result the court needed assurance from special counsel to ensure that it had all the material that was required.

[184]Mr Peter Wright QC, on behalf of the Respondent, asserted that the Respondent had sought to continue to discharge its common law duties in what had been an evolving appeal (as reflected in the various reports served by the Appellants) over a substantial period of time, and (looking back) to ensure that there had been proper disclosure at trial. It was against that background, he explained, that the Decision Records of Mr Butterworth had been served because the Respondent sought to rely on them in relation to the appeal Grounds pursued. It was not material that fell to be disclosed at trial, or under the common law duty in relation to the appeal. Rather, it contextualised actions taken in this country and in the Netherlands,

[185]Mr Wright then took the court through the material in relation to Dutch intercept at dividers 35 – 48 of the Respondent’s appeal bundle, juxtaposing it (as we have done above) with the eight Decision Records of Mr Butterworth, and ultimately submitted that the mutual assistance between Operation Dearly and the Dutch, whether in ‘Samber’ or ‘Samber 2’, did not undermine the safety of the convictions; that nor was there any failure to have considered or disclosed any unused material; and that the allegations of impropriety made in relation to the Dutch intercept evidence were entirely without foundation. There was no evidence of improperly directed surveillance, quite the opposite, and the material had been served to abate the speculation surrounding the material that had been disclosed. Having regard to the principles in Chisholm (above) it was not an appropriate case for the appointment of special counsel.

[186]In reply, Mr Owen submitted that the Appellants’ position was clear, as set out in [31]-[33] of the statement of Mr Dieben dated 5 April 2017, namely that (based on the documents Mr Dieben had seen) it was impossible to say whether the ‘Samber 2’ investigation was de facto an operation led by the British authorities; however, there were multiple investigative acts carried out by the Dutch authorities which appeared to have been prompted by information from the British authorities; and if a decision had been taken prior to the interception that Hadley would be prosecuted in the UK and not in the Netherlands, that would raise serious doubts as to the lawfulness of the intercepts in Dutch law. Yet, Mr Owen submitted, there had still been no specific response touching on the issue of Dutch legality. In the result, his prime submission was that there should be disclosure and that there was a danger that if the court reviewed the material without the input of special counsel there would be an appearance of unfairness.

[187]Mr Harding, on behalf of Ruiz-Henao, adopted and echoed Mr Owen’s submissions throughout. (3). Our decisions and reasons

[188]We have, between us, considerable experience of disclosure exercises. Given the background that the offence arose out of events in 2008 / 2009; that the trials were completed in 2012; that permission was first granted in February 2014; that the Appellants had already been given what was conceded to be a “generous” amount of time to make their own investigations; that we had already read into the case (with the benefit of copious written arguments from both sides and their respective appeal bundles); that the appointment, without more, of special counsel would inevitably cause further delay; and the principles identified in the combination of R v H, R v Chisholm and R v Austin (No.3) (all above), we concluded that, given the Appellants’ concerns about the probity of the investigation, we should ourselves anxiously scrutinise the material that had been brought to court for three purposes, namely:(1) To identify, if present, any material that should have been disclosed hitherto – whether at first instance or in the appeal.

(2) To identify, if present, any material in relation to which it would be appropriate to appoint special counsel to assist Appellants or the Court in any way.

(3) To ensure that there was no possibly relevant material with which we had not been provided, and to decide whether special counsel was required to assist in this regard.

[189]As to the third purpose, we required that the originals of all Mr Butterworth’s Decision Records be provided to us. Also, against the background that, as is often the case, the Respondent’s junior counsel Miss Faure Walker had largely been responsible for the Respondent’s compliance with its disclosure duties, we also required Mr Wright QC to personally check and to assure the Court, if it was the case, that the Court’s formal request of 15 December 2017 had been fully complied with. Ultimately, and after carrying out his own independent review, including checking two crates of material which were recovered from storage, he gave that assurance.

[190]In the result, the materials that we subjected to anxious scrutiny included:(1) The originals of all the Decision Records (sensitive and non-sensitive) covering the whole of the investigation.

(2) The originals of the folders of notes of the SIO (sometimes referred to as Daybooks).

(3) A volume of email material.

(4) Draft statements of Michelle Lai (from Yahoo).

(5) Unredacted versions of some of the material reviewed by Mr Dieben.

(6) A file of miscellaneous material dealing with telephone analyses and Dutch intercept.

(7) An unredacted Letter of Request relating to Dutch products.

(8) A file of intelligence reports in two tranches.

(9) Further notes of meetings between UK and Dutch lawyers.

[191]Having scrutinised the materials at some length, we concluded that:(1) There was nothing in relation to either the Dutch intercept Ground or the slimjim Ground that should have been disclosed hitherto but had not been.

(2) There was no material in relation to which special counsel might assist the Appellants or the Court.

(3) There was no possibly relevant material with which we had not been provided, and special counsel was not required to assist in that regard.

(4) Therefore, there was nothing to order the disclosure of; it was not necessary to appoint Special Counsel; and (given that we could readily put out of our minds anything that we had read that might assist the Respondent) we should invite submissions on the merits of the appeal.

(5) The material that we had scrutinised should be held in a safe by the Registrar until further Order. The Dutch intercept Ground (1). Fresh Evidence

[192]The Appellants principally rely upon three statements (dated 6 April 2017, 8 July 2017 and 4 December 2017) by the Dutch Attorney Thom Dieben. Some reliance is also placed, but to a significantly lesser extent, upon two technical reports (dated 23 September 2013 and 16 March 2014) by Hans van de Ven (into which it is unnecessary to go). The Appellants also place some reliance on a statement from Paul Ashton served by the Respondent (which, it is said, does not deal with key aspects of Mr van de Ven’s evidence), and failures in relation to emails from Ms De Boer.

[193]Neither Mr Dieben nor Mr van de Ven was required to give evidence by the Respondent. Ultimately, we reached the same conclusion, but considered the statements / reports of both witnesses de bene esse.

[194]The import of the combination of Mr Dieben’s statements was said to be that they brought colour and context to the material that had been disclosed by the Crown. When granted access by the Dutch College of Procurators-General to what was supposed to be the Prosecution file he found a file that contained nothing relating to ‘Samber 2’ and a large number of redactions; three months later he had been told that he had been provided with the Police file, which had been redacted by the Prosecution Service, by mistake; he was then offered another opportunity to see the Prosecution file, but there were no documents in it that related to ‘Samber 2’; three months later he was told that that file had been the case file of another person; hence he had never been shown any record of a Dutch decision that no prosecution would be brought against Hadley; and it was said to be “quite remarkable” that nothing that he had been shown contained any record of the intercept product. There were thus, it was said, “serious irregularities”. In consequence, on 7 November 2017, Mr Dieben had made a further request to the Police to sort the position out, and the Court was asked to consider an adjournment to enable the product of that request to be considered in due course. (2). Submissions

[195]Mr Owen began his submissions with a general complaint, said to be applicable to both Grounds, that it was unfair that the Court had seen undisclosed unused material which directly bit on the safety of the convictions, whereas the Appellants had not. It was, he submitted, not acceptable to proceed where obviously relevant material in relation to disclosure (which was the central issue in the appeal) existed and the Court had seen it and he had not. The way out of the article 6 problem which this created was, he submitted, for him to view all non PII unused material in relation to the two Grounds, and for special counsel to be appointed to view all related PII material. Absent that, Mr Owen submitted, he could be on a wild goose chase and barking up the wrong tree.

[196]Absent such access, Mr Owen submitted, he was unable to advance the Dutch intercept ground, save by reference to the inferences (above) based on Mr Dieben’s statements. Nevertheless, he submitted, the reality was that either the intercept was not Dutch intercept at all, or (if it was) it was procured by the UK authorities in a manner that ought to have led to its exclusion.

[197]On behalf of the Respondent, Mr Wright submitted that, in dealing with disclosure, this Court had acted in accordance with the authorities and would readily be able to ensure that there was no resultant bias, whether conscious or subconscious, in its approach to the merits of the appeal – which were all one way on this Ground. There was no breach of the duty of disclosure. The evidence before and at trial was clear, as was the material served or disclosed since – these were Dutch intercepts which were lawfully obtained, and the content of the calls that had been put in evidence had not been disputed by those who had been involved in them. The points raised by Mr van de Ven had been dealt with in evidence at trial by Inspector Branderhorst. HHJ Inman QC was clearly right, on the material before him, to rule in favour of admissibility (whether legally obtained or not), and there had been no dispute about the content of the proved calls by those involved in them. There was no explanation as to why the new evidence was not obtained and used at trial, and anyway it did not afford any ground for allowing the appeal.

[198]In any event, Mr Wright submitted, even if the intercept evidence should not have been adduced, the remainder of the case against the Appellants was overwhelming and their convictions were thus safe.

[199]Mr Owen responded that Inspector Branderhorst had not dealt with Mr van de Ven’s point about the location of interception, and that the issue had been pursued at trial – but on the basis that the evidence was incomplete. (3). Our decision and reasons

[200]Mr Owen’s general complaint of a breach of Article 6 in relation to both Grounds is wholly misconceived. What we did, by anxiously scrutinising the relevant undisclosed material, was entirely consistent with R v Austin (No.3) and the other cases cited above, even though we are the ultimate decision makers on the safety of the convictions. We scrutinised the material solely for the three limited purposes explained above – ultimately concluding that there was nothing to disclose; that there was no material in relation to which special counsel might assist the Appellants or the Court; and that there was no other possibly relevant material with which we had not been provided and special counsel was not required to assist in that regard. The Appellants have not been deprived of any material that would have allowed them properly to pursue admissibility or abuse of process arguments in relation to the Dutch intercept evidence. Finally, we had no doubt that, as experienced judges, we were well able to put out of our minds anything that might help the Respondent in the material that we had seen during the disclosure exercise, and most emphatically have done so.

[201]In the result, we have reached the clear conclusion that the Decision Records were rightly served rather than disclosed and that there was no failure of disclosure in relation to the Dutch intercept material that we scrutinised. For the reasons advanced on behalf of the Respondent, we have no doubt that both judges were entitled to admit the Dutch intercept evidence (and subsequently, in HHJ Inman QC’s case, to rule that there was no abuse of process in relation to it); that, in any event, it was only one part of the case against the Appellants and that even if excluded (whether alone or in combination with the slimjim evidence), and notwithstanding the acquittal of Koubari, Smit and Phillips, the remainder of the case against the Appellants was, as demonstrated above, overwhelming.

[202]Equally, the Respondent was entitled to take the view that it was not necessary for Mr Dieben or Mr van de Ven to be called. No purpose would have been served by cross-examining them. Instead it was appropriate for the Respondent to make submissions as to the relevance and weight of their evidence.

[203]Against that overall background, and for those reasons, and although we considered it de bene esse, we have reached the clear conclusion that (whatever the position on failure to adduce their evidence at trial) the evidence of Mr Dieben and Mr van de Ven does not afford any basis for allowing the appeals on this Ground. Accordingly, we decline to admit their evidence under s.23 of the 1968 Act, and this Ground fails. The slimjim Ground (1). Fresh evidence.

[204]The evidence relied upon by the Appellants, all of which we considered de bene esse, is the combination of the following:(1) Four reports (dated 10 November 2012, 15 July 2013; 24 March 2014 and 4 September 2014) from Steven Burgess – dealing with public revelations about the US National Security Agency (“NSA”) PRISM programme, pursuant to which Yahoo engaged in mass data collection at the behest of the NSA; data said to be missing; and inferences of the use of live monitoring.

(2) A report (dated 28 November 2012) from Bevan Clues (the expert who attended trial on behalf of Knaggs in relation to Dutch intercept issues) – commenting on inferences to be drawn of live monitoring.

(3) Five reports (dated 6 November 2012, 31 July 2013, 24 March 2014, 24 August 2014 and 13 April 2017) from Mark Abramson – dealing with inferences to be drawn of live monitoring or multiple capture.

(4) The statements (dated 22 May 2014 and 1 July 2015) obtained by the Respondent from Michelle Lai, a Custodian of Records at Yahoo Inc in California – dealing with the preservation request on 30 September 2009 and the search warrant received on 19 April 2010 and asserting that the materials produced were not the product of continuous interception.

(5) Correspondence between the Respondent and the US authorities in 2014 about the need to obtain evidence, including expert evidence, to rebut the Appellants’ experts’ reports, and the failure of the Respondent to do so.

(6) The declaration (dated 8 June 2016) and interrogatories of Michelle Chan (née Lai) in an action brought by Knaggs against Yahoo Inc in California – which are said to demonstrate the evasiveness of Yahoo in answering critical questions, and the absence of relevant experience or knowledge in the witness when asserting that there was no live monitoring of the slimjim account.

(7) The deposition in the same action, on 20 September 2016, of Narayan Dash (Senior Director of Engineering at Yahoo Inc) confirming that there was no live monitoring and why data was still on the relevant server at the time of the snapshots – which was said to demonstrate his inadequate knowledge, the evasiveness shown by Yahoo in the answering of simple questions, and the inadequacy of the Respondent’s evidence on the slimjim Ground.

[205]The ultimate explanation from Yahoo, given by Ms Chan (Lai), and confirmed by Mr Dash, in sworn evidence, was that there were two snapshots of the slimjim account, one on 30 September 2009 (in answer to the preservation request) and the other on 7 May 2010 (in answer to the search warrant); that they were taken from Yahoo’s servers and nowhere else; that in 2009 / 2010 there was an autosave process during the drafting of an email (normally approximately every 2 minutes, but it could be more or less frequent); that emails deleted from the account holder’s mailbox view could nevertheless still be present on the email server until the quantity was such that an automatic purge process was initiated; and that on an email account with relatively few messages, deleted emails might remain on the server for a long time and could then (as here) be recovered by Yahoo’s proprietary snapshot tool; and that the material supplied had not been the product of any continuous monitoring or bulk data gathering. (2). Submissions

[206]Mr Owen underlined that in the early part of the first trial the Appellants had been unaware of the preservation request and that nor had Mr Ashton (the new SIO) been told about it by his predecessor Mr Butterworth. Mr Owen then took us through the chronology of the statements from Ms Albert and Ms Nick (see [108] & [114] above) which were served before and during the trial, and Mr Abramson’s first report in November 2012 (prior to the PRISM revelations) which raised question marks as to whether there had been multiple captures of what was on the slimjim account, with a real question as to the definition of “deleted”. Mr Owen acknowledged that, without access to the full tools of Yahoo, Mr Abramson could not prove anything, but underlined that Mr Abramson’s view remained (at the time of the appeal) that Yahoo’s evidence did not make sense.

[207]Mr Owen further pointed out that since leave had been granted the Respondent had engaged with this Ground by obtaining statements from Ms Lai, had expressed concern about the content of those statements in correspondence, which was shared by Mr Abramson - but had not obtained any expert evidence of their own, and nor had they required any of the Respondents’ witnesses to give evidence. It was that lack of challenge that was the bottom line. This Ground was unchallenged and uncontradicted. The fresh evidence cast a fundamentally different light on the origins of the evidence, its legality and admissibility – with the clear likelihood that it was the product of PRISM.

[208]Mr Wright submitted that to the extent that witnesses from Yahoo had given different explanations as to Yahoo’s ability to recover deleted emails there was a clear explanation, namely that some (including those contacted on behalf of Knaggs in 2011, if they were not automated) were from customer care, whereas Ms Chan (Lai) and Mr Daish were dealing with the different proprietary tool used by Yahoo when dealing with snapshots. It had not been the Respondent’s case that emails were deleted, but there was also clear evidence as to how deleted emails could be recovered by the snapshot tool.

[209]Mr Wright continued that the Respondent did not accept Mr Abramson’s speculative assertions that the material from Yahoo was incomplete. On the face of his reports he had failed properly to consider the responses from Yahoo; had deliberately conflated autosave and snapshot; and his conclusions were based on conjecture not an examination of the available material. Nor, given that Mr Clues was instructed on behalf of Knaggs at trial in relation to Dutch intercept issues, was there any explanation for why no expert evidence was obtained at that stage in relation to the slimjim evidence.

[210]Mr Owen replied that the overwhelming inference was that there was no tactical decision in relation to expert evidence at trial, only an attempt to make sense of the situation in the face of the misleading statement of Emily Nick. It was therefore in the interests of justice formally to receive the fresh evidence. (3). Our decision and reasons

[211]As with the Dutch intercept Ground, and emphatically, we have put out of our minds what we read during our scrutiny of the undisclosed unused material. As we have already indicated in [201] above, there is no breach of article 6.

[212]In the result, we have reached the clear conclusion that there was no failure by the Respondent to disclose in relation to the slimjim material that we have scrutinised.

[213]In our view there is no proper basis for the suggestion that the Yahoo email evidence adduced at trial was the product of unlawful monitoring or unlawful snapshotting of any sort. The consistent evidence of the Yahoo witnesses was that the evidence was not the product of such conduct, and the evidence of Ms Chan (Lai) and Mr Dash (upon which the Appellants seek to rely) actually provides a clear explanation of why that was so – both as to autosaves and their timing and the potential for the abiding presence of certain emails on the relevant server. Thus, taken as a whole, the evidence now relied on by the Appellants does not support a conclusion that there was unlawful monitoring of some sort such that the evidence should have been excluded

[214]The most important witness for the Appellants on this Ground is Mr Abramson. However, in our view, his evidence amounts to no more than speculative opinion without any factual foundation. No purpose would be served by his cross-examination, and there was no obligation on the Respondent to cross-examine him. He strays into analysis of the documentary evidence; he has no factual knowledge of events to buttress the views that he expresses; the views that he expresses are no more than speculative opinion; the evidence relied on must be viewed as a whole and aspects of it are contrary to his speculative hypothesis; and it is perfectly justifiable for the Respondent simply to make submissions on relevance and weight – not least as his views are contrary to evidence sought to be relied on by the Appellants as a result of questioning on behalf of Knaggs, albeit that they say that the answers are not to be taken at face value.

[215]Ultimately, we have concluded that both judges were entitled to admit the slimjim evidence (with HHJ Inman QC admitting it whether legally obtained or not). Subsequently, HHJ Inman QC was also entitled to reject an abuse of process application that was, in part, concerned with the slimjim evidence.

[216]In any event, the slimjim evidence was only part of the evidence relied on by the Respondent against the Appellants and even if excluded (whether alone or in combination with the Dutch intercept evidence), and notwithstanding the acquittal of Koubari, Smit and Phillips, the case against the Appellants, as described above, was overwhelming.

[217]Thus, whatever the position as to the failure by the Appellants to call evidence at trial, and although we have considered all the evidence now relied on by the Appellants de bene esse, we have reached the clear conclusion that that evidence does not afford any basis for allowing the appeal on this Ground. Accordingly, we decline to admit the evidence under s.23 of the 1968 Act, and therefore this Ground also fails.

Overall conclusions

[218]No further hearing is required (save, if necessary, to deal with any consequential applications). We have no doubt that the conviction of each Appellant is safe and, for the reasons set out above, we refuse Ruiz-Henao’s renewed application for leave to appeal and dismiss all the appeals against conviction.

order

Background (the prosecution case, the defence cases, the ultimate issues at trial, and rulings in the Crown Court); Legal framework (transfer of legal representation; disclosure / special counsel, interception, and fresh evidence); Ruiz-Henao’s renewed application; Disclosure / special counsel; the Dutch intercept Ground; the slimjim Ground; and Overall conclusions. Background (1). The Prosecution case

Knagg & Ors, R. v [2018] EWCA Crim 1863

Disclosure / special counsel

Overall conclusions

order

Cited in 2 later judgments