R v Ulcay
| Jurisdiction | England & Wales |
| Judge | SIR IGOR JUDGE |
| Judgment Date | 29 November 2007 |
| Neutral Citation | [2007] EWCA Crim 2946,[2007] EWCA Crim 2379 |
| Date | 29 November 2007 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2006/00490-D2,No: 200600490/D2 |
[2007] EWCA Crim 2379
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HIS HONOUR JUDGE TESTAR
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of the Queen's Bench Division
Mr Justice Pitchers and
Mr Justice Openshaw
Case No: 2006/00490-D2
2006/00446-D2
Benjamin Aina for the Appellant
Charles Garside QC & Roger Smart for the Crown
Timothy Cray for the General Council of the Bar
Bruce Houlder QC for the Law Society
Hearing dates: 26 th July 2007
Judgement
Sir Igor Judge, President of the Queen's Bench Division:
This is an appeal by Erdogan Ulcay against his conviction on 23 rd November 2005 at Isleworth Crown Court, before His Honour Judge Testar and a jury, of conspiracy to facilitate the commission of breaches of immigration law by individuals who were not citizens of the European Union. He was sentenced to 12 years imprisonment. His co-defendants included Isma il Toygun, who was sentenced to seven years imprisonment, Mustaffar Gozcu, sentenced to six years imprisonment, Ali Surensoy, sentenced to ten years imprisonment, and Muharrem Garip, who pleaded guilty before trial, and was sentenced to three years imprisonment.
The only significant ground of appeal arises from events which occurred at the close of the prosecution case. At the outset the appellant was represented by two counsel and solicitors, but they then ceased to represent him. The trial proceeded to a conclusion. The appellant was unrepresented. It is submitted that the judge mishandled the problem which arose when counsel withdrew from the case, and that the effect of his rulings produced an unfair trial.
Some of the issues which arise in the appeal are illustrative of problems which arise unfortunately with increasing frequency and create difficulties for the trial process and disadvantage to the proper administration of justice. As questions of importance to the professional responsibilities of the legal professions also arise, we received very helpful submissions on behalf of the General Council of the Bar (the Bar Council) from Mr Timothy Cray, and from Mr Bruce Houlder QC on behalf of the Law Society. There were some significant differences between their respective submissions, and Mr Benjamin Aina, on behalf of the appellant, took robust issue with some of the underlying submissions made on behalf of the Bar Council.
The Prosecution case.
The prosecution case was that the defendants were part of a large commercial enterprise engaged in making arrangements for the illegal entry into the United Kingdom of people who live beyond the borders of the European Union. These defendants were based in the United Kingdom, but the conspiracy included others based in Germany, with yet others from elsewhere in Europe. Most of those smuggled into the United Kingdom were, like all the defendants, of Turkish origin. The conspiracy lasted for just over a year, from the beginning of July 2003 until the end of July 2004. Its linked purposes were first, to ensure that the illegal immigrants entered into the United Kingdom undetected, and second, if they were detected, to support them with bogus applications for asylum.
The Crown's case against the appellant was formidable. Police in Germany lawfully intercepted and recorded a large number of telephone calls which, by themselves, established the existence of the conspiracy, and the prosecution demonstrated that in consequence numerous individuals entered the country using false names. Many of their travel arrangements were paid for by credit card fraud operated by Garip and the travel arrangements were linked to various telephone conversations recorded by the police in Germany. This evidence directly implicated the appellant as the organiser of the operation. He was known as “Edi” or “Eddie”. A listening device placed in the appellant's BMW car produced additional powerful support. The conversations between the appellant and other conspirators were preoccupied with the mechanics of illegal immigration. Travel arrangements and arrival details of various different illegal entrants were discussed. The calls also revealed a constant source of money difficulties between the appellant and his contact in Germany. Details of some of the immigrants stopped by the authorities on entry were found in the appellant's home. Some of them had his telephone numbers with them on arrival, and he was seen to meet others after they entered the country. The prosecution also drew attention to a series of financial transactions by which the appellant transferred money to his associates in Europe and Turkey, which again were referred to in the intercepted telephone conversations.
The appellant was arrested at Heathrow Airport on 9 April 2004. He was present with Surensoy, driving his car, in which nine telephones were bring carried. The appellant said that two of the phones in the centre console were his and that the two in his pockets belonged to his son and his brother, as he was using both. Of the remaining phones four were found in the console, and one in the boot. He was interviewed on the following day. In the presence of a solicitor and an interpreter he presented a prepared statement claiming that he was “100% innocent”, adding that he had been advised by his solicitor not to answer questions and that the written statement had been prepared for him by his solicitor. He was subsequently interviewed on five occasions. Apart from saying that he was not Turkish, but Kurdish, he made no comment.
The Trial.
Before the trial began a number of admissions were made by the appellant. The critical admission was that “Erdogan Ulcay” was known as “Eddie”. It was also admitted that the observations set out in the prosecution schedule represented an accurate record of events, that telephone numbers listed in the prosecution schedule were correctly attributed to the individuals who had the use of those numbers, and further that, the words attributed to the appellant by the prosecution in the course of intercepted calls were spoken by him (although some minor relevant corrections were made during the course of the evidence).
The trial began on 5 September 2005. The appellant's defence throughout was conducted with appropriate professional skill in the light of his then instructions. Just before the close of the prosecution case, the court was unable to sit for something over a day because of jury difficulties. On the afternoon of Thursday 13 th October, it was anticipated that the Crown's case was about to close. At 2 o'clock, in the absence of the jury, counsel informed the judge that his client intended to give evidence, but that it would be preferable for his evidence not to start immediately. The Crown's case concluded at 15:35. After its close, in the presence of the jury, counsel told the court that the appellant wanted to give evidence and intended to do so, but would prefer not to start until the following morning. The judge agreed that this was a reasonable proposal and so the case was adjourned until the following morning.
Next morning, again in the absence of the jury, counsel informed the judge that the appellant no longer wished to give evidence. He said that the appellant had made his decision after a great deal of time had been spent in conference both on Thursday afternoon and Friday morning. The judge checked with counsel whether, given that decision, there was any reason why he should not give the appellant the usual warning in the presence of the jury. Counsel confirmed that there was no reason why he should not. The discussion then moved to witnesses to be called on the appellant's behalf. The judge decided to allow time for this purpose, because in view of the appellant's decision not to give evidence, the witnesses were not immediately available, and could not be brought to court for that day. Accordingly the case was adjourned on Friday, and as the judge put it, “very little work was done in front of the jury”. However the judge was determined that the appellant should not be under any pressure, and he made himself available throughout Friday if witness summonses were required. No applications were made.
On Monday 17 October, again in the absence of the jury, the judge was told by counsel that the appellant did not wish to call any of the witnesses he had in mind on Friday, but that he did want to call another witness, who had originally been a prosecution witness, who was neither called nor tendered. The witness was found, but the judge was informed that the witness would not be available to come to court that day. However, if allowed, he would attend first thing on the next day. The judge, showing exemplary patience, agreed. The case was again adjourned. Until this moment the trial had proceeded without undue difficulty. All that now changed, and we must describe subsequent events in greater detail.
The Crucial Developments.
On the next day, 18 October, immediately before the appellant's case was due to be presented to the jury, both counsel and solicitors who had represented him to date applied to the judge to withdraw from the case on the grounds of “professional embarrassment”. At the same time, fresh counsel applied to the judge for a transfer of the representation order under regulation 16(2)(a) of the Criminal Defence Service (General) (Number 2) Regulations 2001.
Subject to the limits of legal professional privilege, Judge Testar rightly required the most detailed possible explanation for these developments. Counsel informed...
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