Shahid Ramzan V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Clarke,Lord Osborne |
| Neutral Citation | [2013] HCJAC 21 |
| Court | High Court of Justiciary |
| Date | 24 February 2012 |
| Docket Number | C799/11 |
| Published date | 06 February 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Bonomy Lord Osborne | [2013] HCJAC 21 Appeal No: C799/11 OPINION OF THE COURT delivered by LORD CLARKE in APPEAL UNDER SECTION 74 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 by SHAHID RAMZAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Burns, QC;
Respondent: A Mackay, Advocate Depute; Crown Agent
24 February 2012
[1] At a hearing on 24 February 2012 the appellant appealed against a decision of Lord Uist of 29 November 2011 whereby his Lordship refused to grant commission and diligence in terms of a petition brought by the appellant for recovery of documents. We refused the appeal and undertook to provide written reasons for that decision in due course which we now do.
[2] The appellant is indicted on an indictment which runs to several pages and which contains charges which, in brief, allege that he was with others a participant in so‑called "MTIC" (missing trader intra community) VAT frauds and relating financial irregularities. The nature of such frauds are well described by Lord Emslie in the Opinion of the Court in the appeal by the present appellant, and another, (appeal no. XC355/11 and XC356/11 (unreported)) in the following terms:
"Typically, such frauds involve sequential 'chains' of transactions commencing with the acquisition, in another EU country, of physically small but high‑value commodities such as mobile phones or computer components. Once within the UK, that VAT must by law be collected and accounted for on each onward disposal, and in essence such frauds consist in the 'disappearance' of companies (and their principals) without accounting for VAT received. Such 'disappearance' may inter alia be facilitated by the channelling of relevant invoices and payments through third parties. The sums involved can be very high indeed and the UK Treasury are said to lose billions of pounds every year in this way." (at para 2)
[3] The appellant previously lodged a preliminary issue minute raising the following question:
"The Crown has indicated to the defence that it has complied with its obligations of disclosure under Scots Law. Per contra, the Minuter contends that to properly comply with its duties, it is incumbent on the Crown in Scotland in a case such as the present, to carry out disclosure exercise in terms of that which would be carried out by the Crown in England and Wales in VAT fraud offences of this sort in terms of chap. 32 of the Crown Prosecution Service Disclosure Manual and the MTIC Fraud Protocol relating thereto. As far as the Minuter is aware, the Crown in Scotland has not carried out the disclosure checks which would be done routinely for cases of this sort in England and Wales. In the absence of such checks the Minuter submits that the Crown cannot satisfy the court that all relevant material in the hands of Her Majesty's Revenue and Customs has been disclosed to the defence."
In support of that issue it was contended, on behalf of the appellant:
"That in the absence of the Lord Advocate deploying the same procedure in the present case as would apply in England in such a complex fraud with recognised problems regarding disclosure, the Lord Advocate does not satisfy her disclosure obligations. In such circumstances, Shahid Ramzan's Convention rights under article 6 are violated. In such circumstances the Lord Advocate acts unlawfully if she continues with the prosecution; separatum the court acts unlawfully if it permits the Lord Advocate to continue with the prosecution. A preliminary issue arises"
The appellant sought an order on the Crown to undertake wide‑ranging further investigations which were said to be necessary and, in the alternative the appellant sought dismissal of the whole indictment. In essence the appellant's claim was that without the full disclosure that he desiderated there would be unavailable to him material which might tend to show that he was simply an innocent dupe, who had got caught up in the chain of activity, and that material which the Crown may have in its possession, relating to the activities of others in that chain, might help to establish such a defence. Lord Uist, having heard full submissions on 17 May 2010, held that it could not be said that the Crown had not fulfilled its duty of disclosure in the particular circumstances of the case.
[4] The appellant appealed against that decision. That appeal was refused. The Opinion of the Court was given by Lord Emslie, an extract from which having been cited supra. The grounds for refusing the appeal were three in number. The first of these, as expressed at paragraph 10 of the Opinion of the Court, was as follows:
"First, the Supreme Court's decision in McDonald makes it quite clear, in our view, that for article 6 purposes the Crown's spontaneous duty of disclosure extends only to material which they are, or become, aware while discharging their primary prosecuting function. It does not include the carrying out of potentially extensive and time‑consuming investigations as dictated by the defence, and in this respect it seems to us that the Crown's opposition to the appeals was appropriate and well‑founded. It is simply not open to the defence to produce a 'wish list' of inquiries which they would like to see carried out, and then to insist that the prosecution be delayed and disrupted - perhaps to no useful purpose - while such inquires proceed."
The second reason for refusing the appeal, given by the court, was that the court was not in a position to judge whether, at the time the application was made, the Crown's duty of disclosure had been adequately complied with or not. As it was put , at para 11, "For all we know, there may be no further disclosable material in the hands of the Crown or of the investigating authority. A fortiori it cannot at this stage be said that, by the time of the trial, the duty of the disclosure will not have been fully met." This recognised that the Crown's duty of disclosure is a continuing one.
[5] The third reason for refusing the appeal was that what was said on behalf of the appellant was so vague, and lacking in specification, as to leave the Crown in an impossible situation. In the course of elaborating upon that aspect of matters Lord Emslie said, at para 12, "If the appellants are concerned that the Crown have not sufficiently complied with their duty of disclosure so far, then in our view their proper course would be to prepare and lodge a detailed specification of the documents which they would wish to recover, and thereafter to satisfy the court of the relevance and materiality of what they seek." (It will be noted that the original application to Lord Uist and the appeal thereafter to this court was made not only by the present appellant but by a then co‑accused). As has been seen, the appellant took up that suggestion and lodged a specification of documents. The calls in the specification are in the following terms:
"1. All documents or other records so that excerpts may be taken at the sight of the commissioner for all entries showing or tending to show any links, whether known or suspected, between or among all or any of the following companies (companies (i) to (x) being listed in schedules A, B and C to the indictment; companies (xi) to (xxxii) being companies which are known to the Lord Advocate and HMRC as featuring in the deal chains within the disclosed Crown productions whether in respect of common directors, shareholders, bank account signatories, sources of funding or in respect that any of said companies are controlled or operated by associates of those controlling or operating any of the other of the following companies or otherwise during the period between 1 January 2002 and 31 December 2004:
(i) Eurobridge UK Ltd
(ii) HK International Imports Ltd
(iii) Search 85 Ltd
(iv) Silversafe Ltd
(v) TTX Trading Ltd
(vi) Atec Associates Ltd
(vii) Rascal Management Ltd
(viii) Danum Trading Ltd
(ix) Mobile Heaven Europe Ltd
(x) Leapfrog Solutions Ltd
(xi) France Affaires International
(xii) Profix and Co Limited
(xiii) Negolux International
(xiv) Parisienne du Commerce
(xv) Kingswood Trading
(xvi) Springledown Limited
(xvii) Diginett Limited
(xviii) Inter Communications
(xix) Tiger Trade Limited
(xx) Investagonal
(xxi) Mac
(xxii) AR Coms and Elec Ltd
(xxiii) Online Promotions
(xxiv) Intel Communications Limited
(xxv) Vendini International
(xxvi) Feasacom Ltd
(xxvii) Sim City Phone Limited
(xxviii) DHS Telecom Ltd
(xxix) Worldwide Appliances Ltd.
(xxx) Smart Telecom Ltd
(xxxi) Online Promotions Ltd
(xxxii) Sava Ltd
2. All documents or other records so that excerpts may be taken at the sight of the commissioner for all entries showing or tending to show that France Affaires International and Parisienne du Commerce were involved in MTIC or carousel trading during the period 1 January 2002 and 31 December 2004 and the companies and individuals therein with which and with whom they are known or suspected to have collaborated in order to participate such trading.
3. All documents or other records so that excerpts may be taken at the sight of the commissioner for all entries showing or tending to show any suspected or known participation by Imran Hussein (dob 8.2.78 last known address Flat 3/2 6 Waterside Place, Glasgow G5 0QD), Rafiq Rizuan (dob 17.10.81 last known address 1 Rue des Hevruelles Oranges 9500 Cergy France), Rafiq Mohammed (dob 15.8.48 last known address 1 Rue des Hevruelles Oranges 9500 Cergy France, Zeng Wang and Malik Haider (dob and addresses unknown) in the affairs of any of the companies listed above between 1 January 2002 and 31 December 2004.
4. All documents or other records so that the excerpts may be taken at the sight of the commissioner for all entries showing or tending to show any known or suspected MTIC or carousel trading between 1 January 2002 and 31 December 2004 on by or on behalf of the crown...
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