R v Latif (Khalid)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAUGHTON,MR JUSTICE TUCKEY,MR JUSTICE HOLLAND |
| Judgment Date | 10 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0310-4 |
| Docket Number | No. 91/1712/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 March 1994 |
[1994] EWCA Crim J0310-4
Before : Lord Justice Staughton Mr Justice Tuckey and Mr Justice Holland
No. 91/1712/X3
91/1713/X3
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR M LATIF appeared on behalf of the Appellant Latif MR C BLOOM QC & MR A SHARPE appeared on behalf of the Appellant Shahzad
MR S CRIPPS appeared on behalf of the Respondent
Thursday 10th March 1994
These two appellants were convicted on 7th March 1991 at Southwark Crown Court before Judge Laurie QC and a jury of being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug, that is to say, Diamorphine. Latif was sentenced to 16 years' imprisonment and Shahzad to 20 years' imprisonment. They appeal against conviction and sentence by leave of a Single Judge. The jury were discharged from giving a verdict on Count 2 of the indictment which charged each with an attempt to be knowingly concerned in dealing with goods subject to a prohibition on importation.
The prosecution's version of the facts, which must have been accepted by the jury and could not be challenged in this Court, was as follows. Mr Honi, a Pakistani national, was an informer employed in Pakistan by the United States Drugs Enforcement Agency. In that capacity he came to know suppliers of heroin. In particular he met two men called Mehboob and Adnan who expressed the idea of importing heroin into the United Kingdom. Mr Honi reported this to Mr Bragg, the British drugs liason officer in Rawalpindi. He was encouraged to foster the connection and himself suggested to the two men that he knew an airline pilot who could be used as a courier. That was not true.
The two men then introduced Shahzad to Mr Honi and all three intimated that they would supply him with drugs for the United Kingdom. A few days later Shahzad suggested to Honi an export of 20 kilogrammes of his own, independently of the other two men. Honi agreed that he would arrange for the airline pilot to carry it and would himself receive the drugs in London. Either Shahzad or someone on his behalf would then collect the drugs in London.
On 1st April 20 kilogrammes of heroin were delivered to Honi. It was then arranged, through Mr Bragg, for the heroin to be carried to the United Kingdom not by an airline pilot but by a British officer of the Customs and Excise named Bolton who was acting, it would seem, with the knowledge and approval of his superiors.
Mr Honi then came to England and was installed in a hotel by Customs and Excise, but he did not receive the drugs. His telephone calls were recorded and a video camera was installed. For some weeks he tried to persuade Shahzad to come to England to receive the heroin, and eventually he was successful. A customs officer had procured a visa for Shahzad through the British High Commission.
Shahzad came to the hotel on 19th May, and on the next day Latif also came. After discussions between them, a customs officer came to deliver 6 bags of Horlicks to the hotel, got up so as to resemble the original bags of heroin. Both Latif and Shahzad were then arrested.
Mr Bloom for Shahzad and Mr Latif of counsel for Khalid Latif have argued three points on this appeal. They are: (1) that there was abuse of process and the judge should have made a ruling to that effect at the start of the trial; (2) the evidence of Mr Honi should have been excluded under s.78 of the Police and Criminal Evidence Act 1984; (3) alternatively, neither appellant was, on the prosecution evidence, guilty of the offence charged, and the judge should have accepted the submission that there was no case to answer.
The nature of the offence. Although this comes to the fore in submission (3) it also underlies the whole argument on this appeal. Section 170(2) of the Customs and Excise Management Act 1979 provides:
"If any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion -
(b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment;
he shall be guilty of an offence under this section and may be arrested."
The wording can be traced back at least to the Customs Consolidation Act 1853, Reference by the Attorney General under section 36 of the Criminal Justice Act (No. 1 of 1981) [1982] 75 Cr.App.R. 45, 48.
Section 3 of the Misuse of Drugs Act 1971 provides that, with certain exceptions, the importation of a controlled drug is prohibited. But the section by itself creates no offence and imposes no sanction ( R v Whitehead [1982] 75 Cr.App.R. 389). Mr Bolton, the customs officer who brought the heroin into the United Kingdom, committed a prohibited act. None of the exceptions extended to him. Mr Cripps concedes as much. But that was not by itself a criminal offence. Mr Bolton's conduct would not have been prohibited if he had had a licence from the Secretary of State to import heroin, but he had none. Mr Bloom suggests that there would have been no fraudulent evasion by anybody if Mr Bolton had been the holder of a licence.
That leads to a fundamental question as to what S.170(2) means. At first sight one might have thought that there had to be some fraudulent person bringing the goods into this country and deceiving the Customs and Excise in the process. If that be right there was no completed offence in this case, for even without a licence Mr Bolton was not fraudulent and did not deceive anybody. His superiors knew what he was doing. Mr Shahzad and Mr Latif would not be guilty of the complete offence, but it is arguable they would be guilty of an attempt.
Such a construction of s.170(2) is not, in our judgment, correct. It would not catch the man who organises an importation by an innocent courier. There would be no fraudulent evasion by anybody in such a case, and the organiser could not therefore be knowingly concerned in the fraudulent evasion. Mr Bloom submitted that the organiser would be liable as the principal of the courier who acted as his agent. We do not find that suggestion of vicarious liability plausible.
In our judgment the words "fraudulent evasion" include a good deal more than merely entering the United Kingdom with goods concealed and no intention of declaring them. They extend to any conduct which is directed and intended to lead to the importation of goods covertly in breach of a prohibition on import. We find support for that in the case of R v Jakeman [1983] 76 Cr.App.R. 223. Wood J. in delivering the judgment of the Court said, at page 228:
"Although the importation takes place at one precise moment —when the aircraft lands —a person who is concerned in the importation may play his part before or after that moment. Commonly, the person responsible for despatching the prohibited drugs to England acts fraudulently and so does the person who removes them from the airport at which they have arrived. Each is guilty. WALL (supra) is an example of the former and GREEN (1975) 62 Cr.App.R. 74; [1976] QB 985 of the latter.
There is no doubt that, putting aside the question of duress, as we have done, the applicant had a guilty mind when at Accra she booked her luggage to London. By that act, she brought about the importation through the instrumentation of innocent agents. In this way, she caused the airline to label it to London, and the labels were responsible for the authorities in Paris sending it on to London.
What is suggested is that she should not be convicted unless her guilty state of mind subsisted at the time of importation. We see no reason to construe the Act in this way. If a guilty mind at the time of importation is essential, the man recruited to collect the package which has already arrived and which he knows contains prohibited drugs commits no offence. What matters is the state of mind at the time the relevant acts were done, i.e. at the time the defendant is concerned in bringing about the importation."
It follows that we reject the third argument put forward on behalf of these appellants. There was a case for them to answer and on the prosecution evidence they were guilty of the offence with which they were charged. We need not consider the argument for an alternative verdict of guilty of an attempt.
We would mention that Mr Cripps was prepared to accept that at least an importation must occur if the full offence is to be committed. That did him no harm as an importation did occur in the present case. It is generally wise to concede that which one does not need to defend. A similar concession was made and approved by this Court in R v Watts and Stack [ 1979] 70 Cr.App.R. 187. On the other hand, successful deceit of a customs officer is certainly not an essential element of the offence. Sometimes the customs officer knows in advance that a passenger is smuggling. Sometimes it is at once apparent to him. In any event, importation takes place before that stage.
Abuse of process. The argument under this head was based on several different aspects of the case. First it is said that Shahzad was lured into coming to England by deceit on the part of Honi. Secondly, the offence under s.170(2) was also committed by Honi and Bolton. He worked for the Customs and Excise, the prosecutors in this case. Indeed both Honi and Bolton were also guilty of an offence in Pakistan against the local law, namely, possession of heroin. Shahzad was enticed, procured, provoked into committing the offence with which he is now charged. Hence it was said that the prosecution of Shahzad was an abuse of process. If that...
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