R v Ali (Liaquat)

JurisdictionEngland & Wales
JudgeLORD JUSTICE THOMAS,Lord Justice Hooper,LORD JUSTICE RIX,Lord Justice Moses
Judgment Date09 July 2008
Neutral Citation[2008] EWCA Crim 146,[2007] EWCA Crim 2937,[2005] EWCA Crim 87,[2005] EWCA Crim 368
Docket NumberCase No: 2003 03958, 04027, 04111 C1; 2004 06347 C3,Case No: 2007/1079/B4 AND 2007/1081/B4,No: 03/2822/D1,No: 200605089/C3
CourtCourt of Appeal (Criminal Division)
Date09 July 2008

[2005] EWCA Crim 368

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Justice Thomas

Mr Justice Jack

His Honour Judge Radford

No: 03/2822/D1

Regina
and
Robert William Briggs-price

MR ROBIN SPENCER QC & MR CHARLES BENSON appeared on behalf of the APPLICANT

LORD JUSTICE THOMAS
1

On 14th April 2003 the applicant was convicted at the Crown Court at Nottingham before His Honour Judge Stokes QC and a jury of an offence of conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979 and sentenced subsequently, as varied, to a term of imprisonment of 17 years and a concurrent term of 3 months for contempt of court in respect of which he had been found in contempt by the learned judge during the course of the trial. He renews his application to the full court after refusal by the single judge and appeals as of right against the finding and sentence for contempt.

2

We will first consider the renewed application. The Crown's case was that, between 1st September 1999 and 21st June 2000, the applicant conspired with John Barton, Mr Mason and Mr Maeer (all three of whom were tried with him) and three other people, Mehmet Tekin, Yacup Tekin and Tahir Rashid, to evade the prohibition on the import of heroin. The allegation made by the Crown was that the quantity involved was 100 kgs; but it is important to point out that none was in fact ever imported.

3

Barton absconded prior to the first day of the trial and was tried and sentenced in his absence. Mason was found not guilty and Maeer found not guilty by the direction of the judge.

4

It is necessary for us to give a short outline of the facts.

5

As initially charged, there was alleged to be a prior conspiracy. It was the Crown's case that, in about March 1999, Barton had visited one of the Tekins in Amsterdam and handed over a bag which was subsequently taken to the bank and a large sum counted out. The Crown alleged that this money was paid for a consignment of heroin. Tekin was subsequently arrested and imprisoned in Holland.

6

The period of the conspiracy covered by the indictment and the events surrounding it begin in September 1999. It appears that Barton began visiting the applicant, who was a man of some considerable wealth. The police had by that time put a listening device into his Range Rover and a listening device into the games room at Latchem Hall, his residence. It is unclear to us the precise extent to which the listening device in Latchem Hall would have picked up conversations outside that room, but we were told that they did; the games room that was the room that the applicant used for many meetings.

7

It is important to the grounds on which this renewed application is made that it was the Crown's case that the applicant was brought into the conspiracy because he had a distribution network for the transportation and distribution of cannabis and it was intended by the conspirators that he would use that very same network to distribute heroin.

8

During the period that followed, conversations at Latchem Hall were taped, except for a very important period from the end of November 1999 until the end of February 2000, when it was the Crown's case that the power supply to the device had failed.

9

It is not necessary, we think, to go into the movements in the period prior to January 2000, save to say that there were visits by Barton to Latchem Hall and telephone conversations. In those telephone conversations, both in that part of the year and in the next year, there were references to what was being moved, either by reference to quantity or some shorthand vernacular expression. The Crown's case was that this was a reference to drugs; the defence case was that this was a reference to cigarettes.

10

The material events for the purposes of this renewed application begin in January 2000. An informant called Mr Eddishaw, who was a friend of the applicant, was, on the Crown's case, used to introduce an undercover officer of Her Majesty's Customs and Excise called "Gerry" to the applicant. Eddishaw had, on the Crown's case, been authorised to tell the applicant and to discuss with him the initial involvement in the distribution of Class A drugs. It was the Crown's case that he was instructed not to play a major role in planning or committing the offences.

11

The defence case was that Eddishaw had encouraged the applicant over a period of several months to take part in cigarette smuggling, an activity in which the applicant agreed that he had taken part, though at the instigation of Eddishaw, and had, by Eddishaw's statements, been led into bragging about his activities, a tendency in respect of which the defendant called evidence.

12

Of great importance to the renewed application is what is said to have happened on 10th February 2002. Gerry was introduced to the applicant. Gerry's account was that they talked first of cigarette smuggling and they went through a charade in which he and Eddishaw participated in counting out large sums of cash. There was a discussion of Gerry providing transport as part of an operation known as the "The Irish". At the end of the conversation and out of hearing of Eddishaw, the applicant asked Gerry if he would import heroin. That conversation at Latchem Hall was not recorded because, as we have already stated, the evidence was that the listening device was not operating.

13

It was the applicant's case that he believed he was only getting involved in cigarette smuggling and that is why he had the conversation with Gerry. There was no reference to heroin and the evidence given by the undercover officer was an attempt to frame him; he was, in short, being verballed.

14

After that meeting, there were further conversations and it was agreed that Barton would go to Belfast. Barton went to Belfast on 16th February 2002 and met another undercover officer, Sean. It is not disputed that his visit was as a result of the conversation on 10th February 2002 and that he had gone to see the other half of what was known as "The Irish", that is Sean, who was to provide the transport.

15

There were two relevant conversations, both unrecorded. The jury only heard Sean's version of these, because, as we have stated, Barton had absconded prior to the trial. The first of those conversations occurred in a car. The tape recorder which should have been switched on was not switched on. There was therefore no recording. It was the evidence of Sean that, in the conversation Barton asked if Sean could supply heroin. Sean censured him for his loose talk. The important point, however, was the reference to heroin.

16

The second conversation occurred in a public house. There was a video of that but there was no sound track. However, that is not so important, as nothing material seems to have happened in the public house.

17

It was the defence case in respect of those conversations, as put in cross-examination of Sean on behalf of Mr Barton, that he had again been verballed and framed; there was nothing discussed about heroin.

18

There was a visit by Sean to Latchem Hall on 2nd March 2002 where he met the applicant. His account was that he was scanned for bugs and he complained about Barton's loose talk; that Rashid and Barton joined them later. There were references to quantities; but again there was a dispute as to whether that referred (as the Crown contended) to heroin or (as the defence contended) to cigarettes. There were more phone calls, but the matter petered out; no heroin was imported. The alleged conspirators were eventually all arrested.

19

Although we have made clear the general nature of the defence case, it is important to emphasise that it was the applicant's case that he accepted that he was engaged in cigarette smuggling. He made it clear that he would not be involved in heroin. The risks, particularly those of a long prison sentence, were too high. He always had a tendency to brag, and evidence was called, as we have mentioned, to support this. Evidence has been sought to be put before this court in respect of a report to support this. He also concluded that he had been framed by the officers and entrapped by Eddishaw.

20

We think that is a sufficient outline of the facts of the case against which we can turn to consider the three principal arguments that have been made and around which the original grounds have been systematised. If we may say so, Mr Spencer QC's approach to this matter has been extremely helpful, and we are greatly indebted to him and to his junior counsel for the very clear way in which the papers have been organised. We would also say that it was very sensible to group the grounds of the appeal into the three principal arguments because, particularly in relation to the third ground, the arguments all interrelate.

(1) The prior network

21

We will therefore deal with what one might call the first principal group of grounds. Two contentions were made. It was submitted under this first group of grounds that the judge should not have admitted the evidence that related to the Crown's assertion that the applicant had a pre-existing network for the distribution of cannabis to which we have referred. It had little probative weight and it was highly prejudicial. Even if the evidence had been properly admitted, the judge's direction in dealing with it was wholly inadequate.

22

The evidence relied upon by the Crown was a series of transcripts of conversations from which the jury were invited to draw inferences in relation to the period from September 1999 that there was a distribution network for cannabis. It was, as we have already stated, the defence's...

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