R v Shannon (John James)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Potter |
| Judgment Date | 14 September 2000 |
| Judgment citation (vLex) | [2000] EWCA Crim J0914-6 |
| Docket Number | Case No: 1999/03389/Y3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 September 2000 |
[2000] EWCA Crim J0914-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
(HIS HONOUR JUDGE ROBBINS)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Potter
Mr Justice Hidden and
Her Honour Judge Ann Goddard Qc
Case No: 1999/03389/Y3
David Charles Etherington QC and Ms Jennifer Dempster (instructed by Hedley Saunders & Co for the appellant)
Martin Hicks Esq (instructed by the Crown Prosecution Service)
On 5 th May 1999 in the Crown Court at Snaresbrook before His Honour Judge Robbins and a jury the applicant (who conducted his own defence at the trial) was convicted by a majority of 10:2 of one offence of supplying a Class A controlled drug, namely cocaine, (Count 1) and one offence of supplying a Class B controlled drug, namely cannabis resin (Count 2). On 26th May 1999 he was sentenced to nine months imprisonment on count 1 and two months imprisonment on count 2, the sentences to run concurrently. A Confiscation Order was made in the sum of £300 to be paid forthwith, with fourteen days imprisonment in default. He was further ordered to pay £3,000 towards the costs of the prosecution. He was acquitted in respect of an offence of offering to supply a Class A drug (Count 3). The appellant appeals with the leave of the full court granted on 12 th May 2000 following refusal by the single judge.
It is not, and never was, in dispute that the appellant supplied a small quantity of cocaine (just over two grammes) contained in three packages and worth about £200 (count 1) and a small amount of cannabis resin worth about £40 on the same date to a News of the World journalist posing as an arab sheikh in an elaborate and expensive stratagem designed to obtain evidence of drugs offences against him. It was the case for the crown that the drugs were supplied by way of sample in respect of a party which the "sheikh" said he wished to hold some time later for a number of friends who would expect to be supplied with free drugs at the party. In October 1998 prior to the trial the trial judge held a five-day hearing on a voir dire, at which the appellant was represented by junior counsel, Miss Dempster. The hearing was for the purpose of determining an application by the defence to exclude all the prosecution evidence on the ground that it was agent provocateur evidence unfairly obtained contrary to s.78 of the Police and Criminal Evidence Act 1984 ('PACE') and which deprived the appellant of a fair trial guaranteed by Article 6 of the European Convention on Human Rights ('the Convention'). The judge ruled the evidence admissible and the case was adjourned for a substantial period for trial. During that period, the appellant was advised that, whilst counsel could assist him at trial in putting the prosecution to proof and testing its case, he or she would be unable to invite the jury to acquit the appellant if he gave evidence because English law does not recognise entrapment by an agent provocateur as a defence to a criminal charge. Accordingly the appellant represented himself at trial with the results we have already indicated. Count 3, upon which he was acquitted, was based upon his offer to supply a substantial amount of cocaine for the fictitious party which the 'the sheikh' stated that he was due to host. The 'defence' was that the offer was not genuine and was in any event retracted, a version which the jury apparently accepted and declined to convict on that basis. They nonetheless convicted on the basis of the actual supply which formed the subject of Counts 1 and 2.
The progenitor and organiser of the stratagem was a Mr Mazher Mahmood (Mahmood), a journalist who had worked for the News of the World for some eight years. He described himself in the course of the voir dire as an investigating reporter with eighty-nine successful criminal convictions to his name. He stated that he had received a telephone conversation from an informant which indicated that the appellant had been supplying drugs in 'show business' circles. He said that, because his (Mahmood's) name was well known in show business circles, he decided that it was necessary to set up an operation in which he posed as a sheikh, invited the appellant to the Savoy Hotel, collecting him in a Rolls Royce and giving him dinner in the River Restaurant, all on the basis of a fictitious offer and intention to invite him out to Dubai as a celebrity to participate in the opening of night club out there. Mahmood, who had booked a suite at The Savoy in the name of "His Royal Highness Sheikh Mohammed Al-Karim", justified his representing himself as a sheikh moving in royal circles by saying:
"The only way to get into that [i.e. the appellant's] circle is to pose as somebody who he would want to come out and meet and want to relax with …. get him to feel, if anything, we are above him and he will be himself."
In fact, the meeting with the appellant was arranged via Mahmood's assistant, Sarah Isset, through the appellant's agent, Russell Emmanuel, for the bogus purpose of the Sheikh personally offering the appellant employment by appearing as a celebrity guest at the opening of the night club at which a number of famous personalities would attend. The conversations which took place (and which it was planned would be steered towards the possibility of the appellant supplying drugs to the sheikh) would be recorded on covert video and audio equipment already installed in the hotel by Mahmood's colleagues. A fellow journalist called Malik, would pose as a wealthy arab businessman and Sarah Issett, who was an attractive young woman, would pose as the sheikh's personal assistant, thus making up the sheikh's entourage, together with a private investigator, Mr Heraty, hired by the newspaper to pose as the Sheikh's 'minder'.
The applicant arrived at the Savoy at 6.30 pm On Wednesday 13 th August 1997 and was taken to meet Mahmood at 6.50 pm. Before he entered the hotel suite, Mahmood, Malik and Issett rehearsed what they intended to say, which conversation was also recorded. In the course of that conversation Mahmood indicated that he had heard that "he [the appellant] takes a lot" (i.e. drugs). Mahmood said that he would say that his throat was feeling bad as a cue for Ali to bring up the question of drugs. He also instructed his assistants to mention a number of well-known names, with a view to impressing the appellant. As soon as the appellant entered and was introduced, he referred to himself as feeling nervous. Offered a drink, he asked for water, indicating that he had been 'teetotal' for some six months. After a good deal of talk about the sheikh's gambling and acquaintanceship with a number of well-known people, the appellant asked if he could smoke and offered a cigarette to Miss Issett. The sheikh observed "no dirty cigarettes please Sarah …. later, later". The talk then turned to football, footballers and other matters, with more name-dropping, including a statement by the sheikh that he was a friend of Mr Dodi Fayed. There was then talk of girls and the appellant was encouraged to have his photograph taken with Miss Issett, the appellant being offered a visit to Dubai where he could be found a girl 'as lovely as Miss Issett'. Later the offer was extended by the sheikh to the appellant to bring any guests he wished to Dubai, the accommodation and payment for their flights being 'no problem'. The appellant remarked that it all seemed too good to be true.
After more talk of surfing, sport and famous sportsmen the sheikh mentioned that he had a headache. The appellant suggested that it might be a hangover and Ali suggested that he might have smoked "something dodgy". The sheikh then said, "No, we had something, you know his throat – is everything very bad" (gesturing to Ali). The appellant said "Um hard?" (agreed to be a reference to cannabis) and the sheikh said "no … cocaine". Extensive conversation then ensued about use of cocaine. The sheikh enquired of Heraty where he had got the cocaine the previous night, to be told it was in a club but that Heraty always found difficulty in London. The sheikh then observed "why you can't get here? .. there must be some places" to which the appellant replied "there is". Asked, "So you know some places?" The appellant apparently nodded slightly and then asked "Was it powder?" He was told it was not pure. The appellant observed that the powder had to be in nuggets which could be crushed in order to be pure. After some further discussion the appellant made clear: "I started very young but I don't do it myself anymore". He went on to say that, in order to tell whether cocaine was good or bad "You have to have test kit. If you have test kit you can work it out and get pure or you can clean it up …"
At that point the sheikh said: "Next week I'm having a party". He went on "all my friends they all expect to be the complimentary you know sometime. In Dubai we have a party everyone brings cocaine ball. Good." The appellant immediately said, "I'll sort it". The sheikh said "Good you can sort it?" to which the appellant nodded and replied "I can wear it, I can do this". There was then a general conversation about cocaine use in which the sheikh said that the night before he had paid £60 for one gramme, having offered eighty to the supplier if he would bring good cocaine. The appellant indicated that he shouldn't have to pay as much as £80. A little later the sheikh said "so now we have party next week we must need lots?" and the appellant said, "That's all right". The sheikh said "You can arrange some?" and the...
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Subject Index
...1 QB 1016 .............. 90R v Seaboyer (1991) 83 DLR (4th) 193.............................................. 52, 76, 80R v Shannon [2001] 1 WLR 51 ........... 50R v Shearing [2002] SCC 58 ................92R v Smith (1915) 11 Cr App R 229............................................ 96, 97,......
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