R v Rasool (Shafqat) ; R v Choudhary (Nassir Abbas)
| Jurisdiction | England & Wales |
| Judge | Stuart-Smith L.J.,LORD JUSTICE STUART SMITH |
| Judgment Date | 05 February 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J0205-1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 February 1997 |
[1997] EWCA Crim J0205-1
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Stuart Smith
Mr Justice Forbes
and
Mr Justice Brian Smedley
MR R BACKHOUSE QC (MR A BLAKE 5/2/97) appeared on behalf of the Appellant Rasool
MR S SPENCER QC appeared on behalf of the Appellant Choudhary
MR B LEVER (MR R BHAGOBATI 5/2/97) appeared on behalf of the Crown
On 7 March 1996 in the Crown Court at Manchester (HHJ Ensor and a jury) the appellants were convicted of conspiracy to supply a Class A drug. A co-accused Sultan Mahmood Kurd was also charged with conspiracy to supply Class A drugs but the jury was unable to agree on their verdict. The Appellants now appeal against conviction by leave of the single judge.
It was the Crown's case that Rasool had told an associate, Ghassan Barakat, and his brother Hassan Barakat, that a friend could offer them work which was well paid but could result in a long gaol sentence. He had then introduced them to Choudhary who had offered them a car and large sums of money for delivering goods. He did not say what the goods were but reiterated that it could result in imprisonment. The brothers said they would consider it, but informed the police. Hassan Barakat had no further involvement; but Ghassan acted as a participating informant and gave information which resulted in surveillance and telephone tapping which showed that Choudhary and Kurd were involved in the movement of large amounts of heroin between London and Manchester. Ghassan was to be the main prosecution witness but he disappeared before the trial. Hassan was called to give evidence of the initial conversations. Ghassan was then traced and brought to court, but effectively refused to give evidence and was treated as a hostile witness. He disagreed with his previous statements and said nothing of evidential value.
So far as Rasool was concerned the only evidence against him was that of Hassan Barakat, together with other evidence which showed that what was to be transported was drugs. Hassan Barakat gave evidence that on 1 February 1995 he and his brother Ghassan had gone to the clothing factory of Rasool, whom Ghassan knew, to ask for work. Rasool had said that he had no work but that his friend had a driving job. He said that Hassan could be rich for a few months but could get ten years in gaol if caught. It was a risky job that involved driving to Liverpool, London and Manchester. Hassan asked Rasool to ring his friend and they arranged to return later that evening.
Hassan returned to Reseals's factory later with his brother. Choudhary then arrived and said "Did Rasool tell you what I've got for you?" Hassan asked for an explanation. Choudhary told him he would be required to drive a car between London, Manchester and Liverpool. He told him that the other driver had been locked up, but did not say by whom. He said it was a very risky job and if he was caught he would get ten years. He was told he would be carrying "stuff", he could not remember if the word drugs had been used. He had been told that he would always receive more than £1,000 for it and that he would get a BMW and a mobile phone. He had indicated that he would like to think about it and Rasool, who had been there throughout the conversation, had said that it was up to him, he could say yes or no.
The remaining evidence in the case involved observation of association between Choudhary and Ghassan Barakat and telephone calls apparently between them. On 21 March Ghassan Barakat returned from London by train to Manchester Piccadilly station. He arrived with a bag and made a telephone call. He then got into a black cab which was followed from the station by Choudhary driving another car. Choudhary followed for three miles until he stopped to shake off surveillance. Ghassan went on in the taxi to his home where he was joined by one of the drugs squad officers. He showed the officer the bag which contained a loaf of bread which itself contained a bag of brown powder weighing approximately a kilo. The officer replaced the powder and loaf.
Later the same evening a telephone tap on Ghassan's phone led to a call between him and Choudhary being recorded. In it Ghassan is apparently told to expect a black man at 9 pm. Choudhary told him to watch around because he feared he had been followed earlier in the day. There was then further conversation about giving someone who walked past a bag or present. Finally they arranged to meet at Rasool's premises.
On 28 March Ghassan went to London where he met Kurd. He collected a suit bag from Kurd and then caught a train back to Manchester. On the train he was met by the drugs squad officer who opened the bag and found two leather jackets, a leather skirt and a carrier bag containing a loaf of bread. Inside the bread was a bag of brown powder from which he took a sample and replaced the bread. Taped to the exterior of the bag was a small wrap of what appeared to be heroin and the officer took a sample of that too.
Once back in Manchester officers saw Ghassan walking near Choudhary's car in which he placed the suit bag. He then walked around until he was joined by Choudhary and they drove off together. Forty minutes later the car returned containing Choudhary alone and he was arrested.
Choudhary's car was searched and the suit carrier containing the jackets was there, but the loaf of bread had been taken out. Choudhary was taken to the police station by car and the back seat of the car routinely searched afterwards. A small wrap of heroin was found tucked down the back of the seat.
Analysis of the samples showed that they were heroin. The carpet of Choudhary's car boot was examined and found to contain morphine, the broken down constituents of heroin.
In interview Rasool denied the offence and disputed the account given by Ghassan Barakat that he had sought to involve the brothers in drugs operations. At the time of his interview the police were basing their case on Ghassan's account. Rasool denied that he had anything to do with drugs. He did not give evidence.
Choudhary gave evidence. He said he had been introduced to Ghassan Barakat through Rasool. He needed someone to give him protection against some West Indian men who were threatening him. He said that he and Kurd were in the leather trade. What was collected by Ghassan were leather coats and jackets that Mr. Choudhary urgently wanted. He gave an explanation as to why he had followed the taxi in which Ghassan travelled on his return to Manchester.
He agreed that the recorded telephone call was between him and Ghassan Barakat, but he said it was about the West Indians who were threatening him. He said that on 28 March Ghassan was collecting leather goods he urgently needed. He told Ghassan to put them in the boot of his car. He had then joined Ghassan and Ghassan had gone home while he had driven off and was arrested.
He said that he lent his car to many people and that could account for the degraded heroin on the carpet. He said the wrap of heroin found in his car was planted by the police.
So far as Rasool is concerned we only need to deal with the first ground of appeal advanced on his behalf in any detail. The trial began on 13 February 1996. On 4 March Mr. Backhouse QC, who appeared on his behalf, applied to the Judge to discharge the jury from giving a verdict in his case. The basis of this submission was that Rasool was not in a fit state to give evidence or be cross-examined and therefore he could not have a fair trial. The background to that submission was this: Mr. and Mrs. Rasool had a 17 year old son. Since the age of 4 he had been diagnosed as suffering from acute Lymphoblastic leukemia. He was treated and the condition appeared to be in remission until 3 years ago when he relapsed. He then received chemotherapy. The treatment appeared to be successful and was discontinued in November 1995. However shortly after the trial started he unexpectedly relapsed and was rushed to hospital. On about 27 February Mr. Rasool was told that his son's condition was hopeless and that he had weeks or at best a few months to live. In fact he died in November 1996.
Mr. Backhouse has told the Court that from the second week of the trial he had become increasingly concerned at Mr. Rasool's inability to concentrate and pay attention to the trial and he took the view that he might well not be able to call him to give evidence since he could not do justice to himself. Arrangements were made for him to be examined by Dr. Lesley Faith, a Consultant Psychiatrist on 1st March. She provided a report dated 2 March.
Under the heading "Mental State Examination" Dr. Faith said amongst other things:
"He appeared preoccupied and sad. At times his concentration clearly waned and he lost the train of his thoughts. I had to repeat myself on occasions as Mr. Rasool inappropriately responded to questions, seeming to have guessed what I had asked rather than to have genuinely been listening"
and later:
"He admitted that, since hearing his son's prognosis was hopeless, he had great difficulty attending to the proceedings, in court, due to his preoccupation with other matters."
Under "Opinions" this paragraph appears:
"Mr. Rasool is demonstrating the typical features of early grief. He is numb, detached and has not yet accepted the inevitability of the loss. He is less aware of his surroundings and with the best of intentions, he would be incapable of properly focusing his mind on the current court proceedings"
and later:
"Conclusion: Mr. Rasool is demonstrating typical features of early grief. The...
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