R v Shivpuri
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ACKNER |
| Judgment Date | 05 November 1984 |
| Judgment citation (vLex) | [1984] EWCA Crim J1105-1 |
| Docket Number | No. 1676/C/84 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 November 1984 |
[1984] EWCA Crim J1105-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Ackner
Mr. Justice Stuart Smith
and
Mr. Justice Leggatt
No. 1676/C/84
MR. L. BLOM-COOPER, Q.C. and MR. H. COLGAN appeared for the Appellant.
MR. A. SUCKLING, Q.C. and MR. T. DOCKING appeared for the Crown.
On the 23rd February, 1984, after a trial lasting some nine days, the Appellant was convicted at the Crown Court at Reading and was sentenced as follows: attempting to be knowingly concerned in dealing with a controlled drug, the importation of which is prohibited, contrary to section 1(1) of the Criminal Attempts Act 1981 and section 170(1)(b) of the Customs and Excise Management Act 1979. This was count 1. He was also charged with attempting to be knowingly concerned in harbouring a controlled drug, the importation of which is prohibited, also contrary to the same sections of the same Acts. This was count 2. He was sentenced to three years' imprisonment on each count concurrent. He now appeals against conviction, his appeal being based on a short point of law, to which we will refer in some detail hereafter.
The circumstances out of which the prosecution arose and the nature of the factual issues that had to be determined at the trial was simple enough. It was the prosecution's case that when the Appellant was in India in 1982, he agreed with a man called Desai that when he, the Appellant, returned to England, he would receive and look after a suitcase containing packages of drugs. He would pass on the drugs in accordance with instructions which would be given to him and for this service, he would receive £1,000. In due course, a case was delivered to his flat in Cambridge. On 30th November, 1982, between 6.45 p.m. and 7.00 p.m., the appellant met his co-accused, Bath, at Southall station. The meeting appeared to be pre-arranged and they left the station together and walked towards Bath's car. They were arrested by customs officers who had been watching. The appellant attempted to run away, but was restrained and arrested. Inside his shoulder bag, was a package containing a powdered substance. He was taken to the customs office at New Fetter Lane, Cambridge.
During the journey, he was asked how he became involved in drugs, and he said it was because of money. He said there were more drugs around at his house in Cambridge and he was looking after them for Desai. After being searched and given some refreshment, he was interviewed in a car and, according to the prosecution, a contemporaneous note was taken. He repeated that he was looking after drugs for Desai who had told him to take the packages of drugs from the linings of the suitcase. He had arranged to take one of the packages of drugs to Surrinder Sing at Southall station. He knew it was illegal to be involved in the supply of drugs. He did not think the package contained heroin, but cannabis which he described as "dried hash". Desai had told him that the stuff was "maal" which the appellant thought meant drugs.
At his flat in Cambridge, the appellant produced an empty suitcase, the lining of which was ripped. He also gave the officers a package containing a substance which had been in his desk drawer. He was asked if he wished to make a statement and he typed out his own statement, under caution. He described how and when he met Desai, the financial problems that he, the Appellant, was experiencing, Desai's proposal that a friend of his would contact him in Cambridge and leave him with a suitcase and that there would be some "maal" hidden in the suitcase, which he was to keep until he received instructions to make the delivery, or until someone, giving him the appropriate reference, arranged to take the delivery. For these services, he was to receive £1,000. He further described how he came to receive the suitcase which he was told contained "maal" packed in the linings of the case. He mentioned his misgivings, but said he found the consideration of £1,000 too tempting. He explained how he had ripped the lining of the suitcase and taken out the packets and the subsequent telephone call from a Mr. Surrinder Sing on the 27th November, which mentioned Desai's name and arranged to meet him a few days later outside Southall station, bringing one of the packets with him.
The appellant was interviewed again and he confirmed that he knew he was dealing with drugs, but that he did not know what kind, but that he thought the value was some £50,000. He asked for mercy.
There were further interviews and in a final interview, after an analysis had revealed that the substances were not drugs, but were some vegetable material akin to snuff, he told the interviewers that he had suspected very deeply that it was heroin.
One of the most significant features of the prosecution's case was that at none of the many interviews had the appellant ever said that he knew the substance was not drugs because he had himself tested the material and discovered this to be the case.
So much for the prosecution case. The appellant gave evidence. He was a man aged 47, of good character and worked as a journalist. He said that when he was in India, Desai had asked him to look after a suitcase containing "maal" at his home in England. He was told that a greenish brown powder would be hidden in the case and he would be paid £1,000. When he took delivery of the case, he tested the powder and found that it did not contain any drugs. The appellant thought that if he agreed to do as requested, Desai would in due course give him the names of contacts and he, the appellant, would 'get a good story' out of it. He agreed that he had received a telephone call from a Surrinder Sing arranging the meeting described above. When he saw the officers approaching him, he ran away because he feared that this was a racial attack, in his words a "Paki-bashing".
As to the interviews, he denied making any admissions about drugs, told the officers in terms about his tests on the substance and that he thought it was "grass powder". As regards his typed statement, he denied that this amounted to a confession because he knew that the substance was not drugs.
No complaint is made that the Appellant's defence was not fully and fairly put before the jury. The point of law which is raised is simply this - in view of the fact that the substances found in the possession of the appellant were not drugs, he could not be guilty of attempting to be knowingly concerned in either dealing with or harbouring a controlled drug, the importation of which is prohibited, contrary to section 1(1) of the Criminal Attempts Act 1981 and section 170(1)(b) of the Customs and Excise Management Act 1979.
His Honour Judge Pigot Q.C. gave the jury the following direction: "The prosecution have not charged the defendants with the offence itself, but with an attempt to commit the offence. The reason for that is that all the packages (that is to say, the one package in the bag which was with. Mr. Shivpuri at Southall and the 15 found in the desk at his flat in Cambridge) did not contain prohibited drugs -you may think, on the evidence, that they were snuff or some other vegetable material - and therefore the offence was not committed. But if either accused thought or believed that the goods were heroin or knew they were heroin and knew they had been imported, despite the prohibition, and they were playing a part in the actual disposal of those goods in this country, they can be found guilty of an attempt to commit the offence, although the offence itself is strictly impossible because the substance itself was not a prohibited drug. A person may be guilty of attempting to commit the offence, even though the facts are such that the commission of the offence is impossible. That is as a result of an Act of Parliament passed quite recently in 1981, called the Criminal Attempts Act. It was passed to rectify a gap in the law. So if you are sure that either accused believed the facts to be such that the offence would have been committed, if either thought the package contained heroin, he can be convicted of an attempt, provided you are sure that there was participation."
It is convenient at this stage to set out in its entirety section 1 of the Criminal Attempts Act 1981: "1(1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. (2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible. (3) In any case where (a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence;...
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