Bank of East Asia Ltd v Scottish Enterprise and Others
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Jauncey of Tullichettle,Lord Mustill,Lord Steyn,Lord Hoffmann |
| Judgment Date | 18 January 1996 |
| Judgment citation (vLex) | [1996] UKHL J0118-1 |
| Date | 18 January 1996 |
| Court | House of Lords |
[1996] UKHL J0118-1
HOUSE OF LORDS
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Mustill
Lord Steyn
Lord Hoffmann
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Steyn, which I have read in draft and with which I agree. I would dismiss these appeals.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons which he gives I too would dismiss these appeals
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Steyn. For the reasons which he gives I would dismiss these appeals
My Lords,
During February and March 1991, and in the Crown Court at Southwark, the two appellants stood trial on two charges. Count 1 charged the appellants with the offence of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug, contrary to section 170(2) of the Customs and Excise Management Act 1979. The particulars of the offence asserted that the drug was about 20 kilograms of diamorphine, and that the appellants committed the offence between 6 February and 20 May 1990 in London and elsewhere in England and Wales. Count 2, which was based on the same events, charged the appellants with the offence of attempting to be knowingly concerned in dealing with goods subject to a prohibition on importation with intent to evade such prohibition, contrary to section 1(1) of the Criminal Attempts Act 1981. After a lengthy trial the jury convicted both appellants on count 1. The judge sentenced Latif and Shahzad to terms of imprisonment of 16 and 20 years respectively. The judge discharged the jury from returning a verdict on count 2.
With the leave of the single judge the appellants appealed against their convictions on the ground of three rulings made by the judge during the course of the trial. First, the judge considered a submission that an informer and customs officers by subterfuge incited Shahzad to commit the offence and then lured Shahzad into the jurisdiction. Counsel for the appellants submitted that in those circumstances it was an abuse of process to institute criminal proceedings against the appellants and that the proceedings should be stayed. Secondly, and relying on essentially the same assertions of fact, counsel for the appellants invited the judge to exercise his discretion to exclude the central core of prosecution evidence under section 78 of the Police and Criminal Evidence Act 1984. Thirdly, counsel for the appellants submitted at the end of the prosecution case that on the prosecution evidence the appellants were not guilty of the offence charged under count 1, which was by then the only count pursued by the prosecution. The judge ruled against the appellants on all three submissions. On appeal to the Court of Appeal counsel for the appellants challenged each of the judge's rulings. The Court of Appeal rejected the three grounds of appeal and dismissed the appeals of both appellants.
The Court of Appeal refused leave to appeal to your Lordships' House but certified that certain questions of law of public importance arose. Those questions covered the first and third issues but not the second. The Appeal Committee granted leave to appeal. On the hearing of the appeal counsel for the appellants challenged the three rulings of the judge, and the conclusions of the Court of Appeal on all three matters.
The Undeniable Facts
Both appellants gave evidence. In short they testified that they were under the impression that they were dealing with an intended importation of gold. The jury rejected their explanations. Given the verdict of the jury, I need only give a narrative of the essentials of the prosecution case. In 1990 Honi, a shopkeeper in Lahore, Pakistan, was a paid informer employed by the United States Drugs Enforcement Agency. He knew local suppliers of heroin. On 6 February 1990 he met two men who wanted to import heroin into the United Kingdom. Honi reported this to Mr. Bragg, the British Drugs Liaison Officer in Rawalpindi. Mr. Bragg encouraged Honi to foster the connection with the two men. Honi acted under the instructions of Mr. Bragg. Honi suggested to the two men that he knew an airline pilot who could be used as a courier. That was untrue. The two men then introduced the appellant Shahzad to Honi. Shahzad made it clear to Honi that he, Shahzad, was ready and willing to export heroin when the occasion presented itself. At first Shahzad proposed to Honi that he could export heroin from Pakistan to Holland. Honi rejected this idea. All three men then agreed to supply Honi with heroin for exportation to the United Kingdom. That was the historical background to the subsequent and critical dealings between Honi and Shahzad.
A few days later Shahzad alone approached Honi. He proposed an export of 20 kilograms of heroin on his own, cutting out the other two men. Honi agreed. The arrangement made between them was that Shahzad would deliver the heroin to Honi in Pakistan; Honi would arrange for an airline pilot to carry it to the United Kingdom; Honi would take delivery of the heroin in London; and Shahzad or somebody on his behalf would collect the heroin in London and arrange for its distribution in the United Kingdom. On 1 April 1990 Shahzad delivered 20 kilograms of heroin to Honi. The street value of the drugs in England was £3.2 million. In accordance with his instructions Honi delivered the drugs to a Drugs Enforcement Agency officer. On 10 April 1990 Mr. Bolton, a Customs and Excise officer travelled from England to Pakistan and collected the packages of heroin and on 13 April 1990 he brought them to England. The officer did so on the instructions of his superiors. But he had no licence to do so. The Pakistani authorities had been kept informed of what was going on.
In May 1990 Honi came to England. Customs and Excise officers arranged for Honi to stay in a hotel room under surveillance. The customs officers arranged for Honi's telephone calls to be intercepted. Events in his room were recorded by video camera. Honi did not, however, have possession of the packages of heroin. Honi then set about trying to persuade Shahzad to come to England to take delivery of the drugs. On 19 May 1990 Shahzad arrived in London. During the next two days Shahzad and Honi discussed the details of the delivery of the heroin and payment. On the afternoon of 20 May the appellant Latif joined Honi and Shahzad. Shahzad and Latif knew each other. Latif said words to Shahzad to the effect that Shahzad could tell Islamabad that he (Latif) had arrived. Shahzad and Latif continued to discuss the proposed delivery of the heroin.
A man, who pretended to have possession of the heroin on behalf of Honi, then arrived. He was in fact a customs officer carrying 6 bags of Horlicks, got up so as to resemble the original bags of heroin. The customs officer delivered the bags to Shahzad who was immediately arrested. Latif had been arrested a little earlier outside the hotel room.
The judge's rulings on abuse of process and exclusion of evidence under section 78.
The principles applicable to the court's jurisdiction to stay criminal proceedings, and the power to exclude evidence under section 78 of PACE, in a case such as the present, are not the same. Nevertheless, there is a considerable overlap. It will therefore be convenient to consider the judge's findings under these two headings together.
Before making his rulings at the start of the trial the judge would have studied the depositions. Honi gave evidence on the voire dire. Latif and Shahzad did not testify at that stage. As to the dealings between Honi and Shahzad in Pakistan, the judge summarized the position as follows:
"… this is a case in which, as I find, all the suggestions for the crime came from the defendant [Shahzad]. I have to say, having heard the detail of how the arrangement was made in Pakistan, according to Mr. Honi, I think it would be a misuse of language to say there was an incitement by Mr. Honi of the defendant or a soliciting of the offence. The defendant voluntarily acted to explain his plan to Mr. Honi in Pakistan and Mr. Honi was merely his agent to arrange the carriage. Of course, Mr. Honi told him there was the opportunity to import these drugs to the United Kingdom by means of this carriage. Of course, all that was a deception, but the action all came from the defendant and the defendant … voluntarily came to the United Kingdom to deal in drugs here."
On appeal to the Court of Appeal Lord Justice Staughton added to the judge's observations that the importation, which Shahzad had arranged through Honi, would not have taken place when and how it did without the assistance of Honi and the customs officers. The trial judge found that the Customs and Excise lured Shahzad to the United Kingdom by trickery and deception. He also found, however, that he was not brought to England by force: he came voluntarily with a visa he applied for. There was no extradition treaty between the United Kingdom and Pakistan. No breach of extradition laws was involved. The judge said that
"what happened here is that every step the defendant [Shahzad] wished to take was facilitated by the authorities in order to make sure that they could bring a suspected and substantial drugs dealer to book."
The judge concluded that a stay would not be justified. The gravamen of his reasoning appears in the following passage:
"Though no court will...
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