Lieuwe Hoekstra And Jan Van Rijs And Ronny Van Rijs And Hendrik Van Rijs V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Coulsfield,Lord Osborne,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 23 January 2002 |
| Docket Number | C213/97 |
| Published date | 23 January 2002 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Coulsfield Lord Osborne
| Appeal Nos: C213/97 C212/97 C226/97 C254/97 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION AND SENTENCE by LIEUWE HOEKSTRA, JAN VAN RIJS, RONNY VAN RIJS and HENDRIK VAN RIJS Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: Van Bavel, Gebbie; Anderson Strathern: Pen, McLaughlin, Kennedy; Anderson Strathern: Jahae, Gildea; Macafee: Sjöcrona, Nelson; Macafee
Respondent: F.J. McMenamin, Q.C., A.D., Blair; Crown Agent
23 January 2002
[1]The appellants are Lieuwe Hoekstra, Jan Van Rijs, Ronny Van Rijs and Hendrik Van Rijs, who were convicted, after trial, on 20 February 1997 of being knowingly concerned in the attempted fraudulent importation of cannabis resin in contravention of section 170(2)(b) of the Customs and Excise Management Act 1997. All the appellants are Dutch nationals. Five other persons, all British, were charged on the same charge: one of them pled guilty at the conclusion of the Crown case and three more were convicted after trial. One was acquitted. There was also a separate charge of attempting to defeat the ends of justice against the British accused, of whom one pled guilty and one was convicted. The first and second appellants were sentenced to 14 years imprisonment and the third and fourth to ten years. The first and third appellants gave evidence at the trial: the others did not.
[2]The circumstances giving rise to the charges have been explained in a number of previous court opinions and in the first instance it is only necessary to give an outline of the main features of them. The Crown case was that in July 1996 a vessel, a ketch known as the Isolda, crewed by these appellants, and carrying a large quantity of cannabis resin, sailed through the Fair Isle channel between Orkney and Shetland, travelling in an eastwards direction. At a point in the North Sea somewhere to the north east of the Moray Firth, the Isolda met another vessel, the Ocean Jubilee, which was crewed by two of the Scottish group of accused, and the cargo of resin was transferred from the Isolda to the Ocean Jubilee. Customs officers who had been maintaining surveillance of the operation then intervened. Both vessels were pursued and detained and the accused were arrested. In the course of the pursuit and arrest of the Ocean Jubilee, an attempt was made to burn the cargo and one of the Customs officers was accidentally killed. The evidence led by the Crown included evidence of observations of both vessels prior to and at about the time of the alleged meeting and transfer of cargo and of the pursuits and arrests. There was also evidence as to events during the preceding months including evidence of journeys to and from Spain, meetings and telephone calls. There was also evidence as to the movements of the Isolda, and information derived from the global positioning system on board the Isolda. From this evidence, it was alleged, inferences could be drawn that there had been a scheme, in which all the accused were, in different ways, knowingly involved to prepare for the attempted import of cannabis to the U.K. and its distribution once there. In addition there was forensic evidence derived from examination of the vessels and their alleged cargo. That included evidence of the finding of fibres on board the Isolda which matched the material used to wrap the cannabis resin found on board the Ocean Jubilee. It was not suggested in the course of this appeal that the evidence was insufficient to entitle the jury to convict these appellants, assuming that all the evidence was admissible.
[3]All the convicted persons lodged notices of appeal. The proceedings in the appeals by the British appellants became separated from those involving these appellants. The British appeals were heard in December 1998: only one, the appeal by Brian Silverman, was upheld and a retrial was ordered in his case. Silverman was convicted again on 24 March 1999. The position now is that all the proceedings concerning that group of accused have been disposed of.
[4]The appeal proceedings concerning these appellants have been more complex and lengthy. It will be necessary to explain what has happened in some detail in dealing with one of the grounds of appeal, which alleges that there has been excessive delay in disposing of the appeal. For the moment, it is enough to say that there was some initial delay in securing representation for these appellants, but that a variety of grounds of appeal and amended grounds, and related devolution issue minutes, were eventually lodged by the end of 1999. A partial hearing of the appeal took place in November and December 1999. A decision was issued in January 2001, but that decision was challenged and set aside and further devolution issues were raised thereafter. The hearing to which this opinion relates eventually took place in October 2001. By that time, the grounds of appeal relating to these appellants had been consolidated and agreement had been reached among the appellants as to how and by whom these grounds should be presented and argued. The upshot was that we heard argument on nine grounds of appeal. Three of these, numbered 3, 4 and 9, relate in one way or another to the use of a tracking device to locate the Isolda, and can be said to have arisen from events at the trial between 2 and 9 December 1996. Ground 5 relates to the question of authority to arrest the Isolda and arises from an objection to evidence taken at the trial on 17 December 1996. Ground 2 arises from a visit made by the jury to the Isolda in the course of the trial, on 30 December 1996. Grounds 6 and 7 concern alleged misdirections by the trial judge in his charge to the jury. Ground 8 concerns an incident which took place in the course of the appeal proceedings, on 7 July 1999. The final ground, ground 10, is based on allegedly excessive delay in completing the appeal proceedings. We propose to deal with these various matters in the order indicated above. Ground 1 of the consolidated grounds of appeal, which raised the question whether there had been sufficient evidence of importation of the cannabis resin, was dropped.
[5]We should observe that some of the grounds of appeal were put forward, as written grounds, by some of the appellants but not by others. We have not however thought it necessary to identify, in every case, which ground was put forward on behalf of each appellant. All the grounds, in our view, raise matters which, if justified, would be material to the validity of the conviction of each appellant and we have therefore treated all the arguments advanced to us as relevant to each of the appellants. We should also observe that, in addition to the consolidated written grounds of appeal and the oral submissions we have the benefit of written submissions or skeleton arguments from some of the appellants. Many of the arguments advanced have appeared in these various sources, written or oral, in varying forms; and some of them have also appeared in different forms in the many devolution issue minutes lodged from time to time. We have not attempted to set out all the various forms which the arguments have taken from time, or to catalogue the devolution issue minutes but have treated as definitive the form in which the grounds of appeal and the devolution issues were presented to us at the hearing.
Grounds of Appeal 3 and 4
[6]These grounds of appeal together with ground 9 and an associated devolution issue minute of 6 April 2001 all arise out of events at the trial between 2 and 9 December 1996. In brief, it emerged that there had been a tracking device on board the Isolda which had assisted the surveillance officers to locate it. As a result, questions have been raised as to the legality of the device and the admissibility of evidence obtained as a result of its use. The appellants have also sought to obtain information as to what the device would have recorded and what records of the use of the device would disclose. In order to understand and deal with the points at issue it is necessary to set out in some detail what took place during this phase of the trial.
[7]On Monday 2 December 1996 a witness Nicholas Ernest Jones, an aircraft systems operator employed by a private aviation company, gave evidence as to certain survey flights carried out for the Customs & Excise in July 1996. The first part of his evidence was concerned with sightings of a life boat, identified as the Ocean Jubilee. He then said that on Sunday 28 July 1996 he was asked to locate a different target (transcript 2.12.96 p. 29) . The target was located at position 5928 north 0408 west at 1300 GMT on that date. The position was somewhat north and west of the Orkney islands but south of the Shetland islands. The target vessel was following a course which would take it through the Fair Isle Channel between Orkney and Shetland: it was a two-masted motorised ketch. On the following day, Monday 29 July, there were further flights and further sightings of the ketch, this time heading in a south-easterly direction somewhere to the east of the Moray Firth. Mr. Jones gave evidence that information about the position of the ketch had been passed to customs officers on surface vessels. At the end of his evidence in chief, Mr. Jones explained that most of his observations were made visually but that equipment on the aircraft was also used and that the position of the vessel was established by plotting radar contacts.
[8]In cross-examination by Mr. Findlay, on behalf of the first appellant, Mr. Jones explained that the equipment on the aircraft included radar, a colour television camera and an infra red camera. He was then asked (transcript p. 50) what use was made of satellites or satellite tracking systems. At this point, the witness indicated that he was reluctant to answer the...
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