England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London WC2A 2LL

Wednesday 5th February 1997

B e f o r e:

LORD JUSTICE STUART SMITH

MR JUSTICE FORBES

and

MR JUSTICE BRIAN SMEDLEY

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R E G I N A

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SHAFQAT RASOOL

NASSIR ABBAS CHOUDHARY

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(Handed-down judgment of Smith-Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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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

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J U D G M E N T

(As approved by the Court)

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Crown Copyright

Stuart-Smith L.J.:

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 detachment is preventing him from properly attending to the court proceedings and would certainly prevent him from managing the situation of a cross-examination to the best of his abilities. This situation may continue for several weeks.”

Dr. Faith, though available was not called to give evidence or cross-examined. Mr. Lever told the Court he accepted her opinion.

Mr. Lever submitted to the Judge and repeated his submission to this Court, that if the Crown had had no difficulty in proceeding with a retrial, then the jury should be discharged from giving a verdict, but as it was, it was likely to be difficult or impossible to do that because of anticipated or actual difficulties with the brothers Barakat as witnesses and therefore the application of Mr. Backhouse should be rejected.

His submission is reflected in the Judge’s ruling:

At. P4B he said:

“Indeed, it is a difficult situation because I have to balance the public interest and at the same time have regard to the personal position of this defendant so as not to be unduly unfair to him in the course of this long trial and with the background of a very serious and tragic family situation.

However I am bound to say that this is not a case where Mr. Rasool is personally in any physical pain; it is said that his mental state is such that he may not be capable of withstanding the rigours of giving evidence and of cross-examination. Mr. Lever has quite rightly pointed out, and I am aware, that the extent of the evidence which he has to give and the extent of the case against him is certainly within a narrow compass. It relates to the events of the 1st February and two conversations at which he either took part or was in attendance. These are matters which it doesn’t seem to me to be matters which can tax him to any substantial degree in recollection or dealing with.”

Mr. Backhouse points to the Judge’s use of the words “unduly unfair”. The Judge then referred to the fact that he had observed the Appellant’s demeanour in the course of the trial and the fact that the terminal illness was not something that had suddenly appeared on the scene. As against this it can be said that the deterioration and news that the case was hopeless was recent.

At p5 he said:

“However, this case is very far advanced. It is a case in which he is involved with two others; it is a case which could not easily be reconstituted and, with my own intimate knowledge of the matter and using the discretion I have, taking into account all that has been quite properly put forward to me by Mr. Backhouse, I feel that nevertheless it is not appropriate to discharge Mr. Rasool from giving evidence. It is a matter in which I believe he should continue to stand his trial but I am prepared of course, if necessary, to give him time to compose himself and to realise now (it is 12.20 as I am giving this ruling), if it is preferred that he should give his evidence tomorrow morning I will accede to that.”

The real question, as Mr. Lever was constrained to concede, was whether Mr. Rasool could have a fair trial having regard to his condition. If he could not, then the fact that the prosecution were in difficulty in mounting a retrial was irrelevant. Had the Judge asked himself this question, then we think he might have been justified, for the reasons he gave, in holding that he could give evidence having regard to the limited nature of the case against him and the fact that Dr. Faith did not go so far as to say that he could not give evidence; but only that his condition “would prevent him from managing the situation of a cross-examination to best of his abilities.” But in fact we do not know how he would have answered the questions, untrammelled by the consideration of the Crown’s difficulty on retrial. The reference to “unduly unfair” suggests that he did regard it as unfair, but the balancing exercise resulted in his rejection of the application.

The problem in our judgment was complicated by what seems to us an unsatisfactory approach to the matter adopted by prosecuting counsel in his final speech. We are told in Mr. Lever’s skeleton argument that he said this:

“It is also right, members of the jury, that you have had medical evidence read to you today on certain sad reasons why Mr. Rasool cannot give evidence before you at this trial. The submission of the prosecution, in relation to Mr. Rasool, is this. That although you have to be sure that Mr. Hassan Barakat is telling the truth, not only must you not in any shape or form hold it against Mr. Rasool that he has not given evidence, in the light of the medical evidence that you have had read to you this morning. Members of the jury, the way the prosecution would invite you to strenuously test Mr. Hassan Barakat’s evidence, is the prosecution would like you, as it were, to imagine that Mr. Rasool had given evidence and that he had given perfectly satisfactory evidence that that conversation had never taken place at all. In the circumstances that you have heard of in the medical report, you may think that that is the only rigorous approach that you can take, in order to make sure you do justice to Mr. Rasool. When you scrutinise Mr. Hassan Barakat’s evidence, scrutinise it is as if you had heard evidence from Mr. Rasool, “I never at any time had any such conversations with either of the Barakats.”

This passage appears to show an acceptance by Mr. Lever that Mr. Rasool could not give evidence. It then goes on to invite the jury to perform an impossible task. If Mr. Rasool had given “perfectly satisfactory evidence” that the incriminating conversation had not taken place, it is difficult to see how the jury could avoid having some reasonable doubt as to his guilt. It was only if they had heard his evidence and rejected it that they could be sure that Hassan Barakat was telling the truth; or alternatively if Mr. Rasool was capable of giving evidence, albeit not as well as he would have been had he not had this preoccupation with his son’s health, so that he had a choice whether to do so or not and elected not to, that the jury could properly be invited to convict on the basis that Hassan Barakat’s evidence was uncontradicted.

In our judgment if the Crown’s attitude as revealed in Mr. Lever’s submissions was correct, then the application to discharge the jury should not have been opposed.

It is not altogether clear that the Judge agreed with this approach. In his ruling to which we have already referred, he seemed to find as a fact, that notwithstanding the evidence of Dr. Faith, Mr. Rasool was able to give evidence, having regard to the limited extent of the issues in the case.

When he came to sum up he gave the then conventional direction about Mr. Rasool’s failure to give evidence. At p 71 B-C he reminded the jury of two of the important points made by Mr. Backhouse.

At 71 D he said:

“Mr. Lever has invited you to say that although Mr. Rasool has not given evidence you can infer that had he given evidence he would have denied that any meeting had taken place or anything was said of the nature that Mr. Barakat has alleged.”

Although that is not perhaps a ringing endorsement of Mr. Lever’s submission, it certainly is not a repudiation of it.

The Judge then gives a direction that the jury should decide the case on the evidence and not on sympathy for Mr. Rasool. If they were sure Hassan was telling the truth they should convict. If not they should acquit.

We have not found this point a particularly easy one. But having regard to Mr. Lever’s concession in this Court that but for the Crown’s difficulty in mounting a retrial, he would not have opposed the defence application because it would be unfair to expect Mr. Rasool to give evidence in the circumstances and the unsatisfactory way the jury were invited to approach the case by Mr. Lever, which was not repudiated by the Judge, we have come to the conclusion that the conviction is unsafe.

Two other grounds of appeal were briefly submitted by Mr. Backhouse. The first is that the Judge did not deal adequately with the case of Mr. Rasool. We do not agree. The defence was within a very short compass and consisted of a denial of Mr. Hassan Barakat’s incriminating evidence. The jury had a transcript of Mr. Rasool’s necessarily truncated interview; this had been referred to at length by Mr. Backhouse in his closing speech. It was quite unnecessary for the Judge to repeat it. It was necessarily truncated - what Mr. Backhouse calls a scissors and paste affair - because he was interviewed on the basis of Ghassan’s account and not Hassan’s.

Secondly it is said that when it appeared that Ghassan did not appear on the first day of the trial, and it seemed likely that even if he did appear, he would not come up to proof, the proceedings became an abuse of process and the Judge should have stayed them. We do not agree. Mr. Rasool was committed for trial on the basis of the evidence given by Ghassan in his witness statement. If at any time before the close of the Crown’s case Ghassan had given evidence consistent with that statement, there would have been a case to answer. In fact by the time Ghassan gave evidence, which was valueless to the Crown, Hassan had given evidence implicating Mr. Rasool. There is no question of abuse of process.

Turning to the appeal of Mr. Choudhary, the principle ground of appeal relates to the admissibility of a record of the telephone conversation between Choudhary and Ghassan Barakat on the evening of 21 March. A tap had been placed on the British Telecom line with the consent of Ghassan Barakat, who at that stage was a cooperating informer. Mr. Spencer QC on behalf of Mr. Choudhary submitted to the Judge that the combined effect of S1 and S9 of the Interception of Communications Act 1986 (The Act) was such as to render the substance of the conversation inadmissible. The Judge rejected his submission. Mr. Spencer argues that he was wrong.

So far as is material S1 provides as follows:

(1) Subject to the following provisions of this section, a person who

intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunication system shall be guilty of an offence.

(2) A person shall not be guilty of an offence under this section if:

(a) The communication is intercepted in obedience to a

warrant issued by the Secretary of State under section 2 below; or

(b) that person has reasonable grounds for believing that the

person to whom, or the person by whom, the communication is sent has consented to the interception.”

Sub sections (3) and (4) are not material.

This case fell within S1(2) (b) and not (a). It was not a warrant case. Sections 2-6 are concurred with the circumstances in which a warrant can be obtained and what is to happen to the product of such information obtained as a result of a warrant. They have no bearing on an interception pursuant to consent (S1(2)(b)). We shall have to refer later to S2(2)(b) and S6.

As Mr. Spencer accepts S1 of the Act has nothing to do with admissibility of the product of a telephone tap. The fact that it may have been obtained unlawfully, by committing trespass or even in circumstances involving a criminal offence does not render relevant evidence inadmissible. See R -v- Sang [1980] AC402 R -v- Khan [1996] 3 WLR 162 . If it is inadmissible this can only be the result of a clear statutory provision. This of course is subject to the trial judge’s discretion to exclude otherwise relevant evidence pursuant to S78 of the Police and Criminal Evidence Act 1984 or the Court’s inherent jurisdiction. No such application was made in this case.

Mr Spencer submits that S9 of the Act has the effect of rendering the material inadmissible, at least when it is considered in the light of the judgments in the House of Lords in Preston [1994] 2 AC 130 and [1994] 98 CAR 405.

S9, is in these terms so far as is material:

“(1) In any proceedings before any court or tribunal no evidence shall

be adduced and no question in cross-examination shall be asked which (in either case) tends to suggest:

(a) that an offence under section 1 above has been or is to be

committed by any of the persons mentioned in subsection (2) below; or

(b) That a warrant has been or is to be issued to any of those

persons.

(2) The persons referred to in subsection (1) above are:

(a) Any person holding office under the Crown;”

It is common ground that the constable who intercepted the line was within S9(2)(a). No problem arises in this case under S9(1)(b). Moreover on the face of it S9(1)(a) is not concerned with the admissibility of the contents of a telephone intercept. Furthermore since it is irrelevant to the question of admissibility of the evidence whether an offence has been committed in the obtaining of it, no proper question can in any event be asked in cross-examination to seek to establish that an offence has been committed. This was the approach of the Court of Appeal in R -v- Effik (1992) 95 CAR 427. The facts of that case are that the appellants were indicted on counts of conspiring to supply controlled drugs. Part of the evidence consisted of recordings of telephone conversations between them and “S” which were intercepted and tape recorded by police. The telephone apparatus in “S”s house consisted of the ordinary fixed handset and a cordless telephone. When the cordless telephone was used, a radio receiver operated by police officers in an adjoining flat picked up the radio signals being transmitted between the base unit and the handset and enabled recordings to be made of the conversations. At trial the appellants applied to the Judge to exclude the evidence of the telephone conversations on the grounds that they had been intercepted in the course of transmission by means of public telecommunications systems and were accordingly rendered inadmissible by S1 and S9 of the Act. The Judge ruled that the cordless telephone was a privately run system and, although connected to the British Telecommunications system, designated as a public telecommunications system for the purpose of the Act, was no part of it and consequently the Act did not apply. The appellants were convicted and their appeals against conviction upheld in the Court of Appeal.

It is important to appreciate that in the Court of Appeal the Court proceeded on the basis that the interception was of part of the public telecommunications system and was therefore within this Act. Steyn LJ giving the judgment of the Court said at p431:

“The first submission is that section 9 of the 1985 Act renders inadmissible (subject to the exceptions contained in s.9(3)) any evidence obtained as a result of an interception of a communication by means of a public telecommunication system. That would be a far-reaching provision. For the purpose, inter alia , of preventing or detecting serious crime, Parliament has rendered such interceptions lawful, subject to the statutory safeguards being observed. But it would follow that if an interception reveals, for example, compelling evidence of treason, and there is no other evidence of it, that evidence of the interception may never be led. Moreover, it would follow that if the interception reveals evidence which assists a particular defendant, such as an attempt to fabricate evidence against him, that the evidence may never be led. And that would be so whether the statutory safeguards had been observed or not. Such astonishing results do not give the court a licence to depart from the statutory language but it does permit an initial scepticism about the plausibility of the submission as to the true meaning of the language.

The starting point is the principle that all logically probative evidence is admissible. Any legislative inroad on this principle requires clear expression. Language to the effect that any evidence obtained as a result of an interception will be inadmissible could achieve such a purpose. But that is not what section 9 provides. It merely provides that no questions may be asked which tend to suggest than an offence under section 1 has been committed by specified persons or that a warrant has been or is to be issued to any of these persons.

The forbidden territory is therefore in the first place questions tending to suggest than an offence has been committed. That prima facie prohibits a line of questioning designed to establish that none of the four defences under subsections (2) and (3) of section 1, such as a warrant, consent of the sender of the communication, and so forth, are applicable. Section 9(1) then prohibits questions tending to suggest that a warrant has been or is to be issued. The express terms of section 9 do not provide that no evidence obtained as a result of an interception may be admitted. The forbidden territory is drawn in a much narrower fashion. And there is a logical reason for the narrow exclusionary provision. That is the reflection that it cannot be in the public interest to allow those involved in espionage or serious crime to discover at a public trial the basis on which their activities had come to the notice of the police, the Customs and Excise or the Security Services, such as, for example, by questions designed to find out who provided the information which led to the issue of the warrant. So interpreted section 9(1) makes sense. And it would make no sense to stretch that language to become a comprehensive exclusion of all evidence obtained as a result of any interception. It may well be that evidence of interceptions will rarely be tendered. But we are confident that there is no statutory bar to a court ever admitting such evidence. In our judgment, the appellants’ first submission must be rejected.”

The Court then went on to consider a submission that the evidence of the conversations should have been excluded pursuant to S78 of the Police and Criminal Evidence Act 1984. This submission was rejected notwithstanding the assumed basis of the appeal, namely that the police had been committing an offence under S1 for five days. The case went on appeal to the House of Lords. The actual decision was upheld, but on different grounds, namely that the trial judge had been correct in holding that the interception was not part of the public telecommunications system. [1995] 1AC 309, 99 CAR 312.

If the Court of Appeal’s decision in Effik on the assumed facts was still good law then it would clearly be determinative of this ground of appeal in favour of the Crown. But in November 1993 the House of Lords decided the case of Preston [1994] 2AC 130, [1994] 98 CAR 405. In that case a telephone interception warrant had been issued pursuant to S2(2)(b) of the Act. The defence sought disclosure of the product of the telephone taps on the basis that it might reveal support for the defence of duress. The judge’s decision to refuse disclosure was upheld. In the Courts below argument had been concentrated on the effect of S9 of the Act. But in the House of Lords it was held that it was the combined effect of S2(2)(b) and S6 which had the result of rendering the product of telephone intercepts carried out under warrant from being admissible in evidence with the corresponding corollary that disclosure to the defence is also prohibited.

The leading speech was given by Lord Mustill, with whose opinion Lord Keith of Kinkel and Lord Brown-Wilkinson agreed. At p163 C Lord Mustill refers to S9 of the Act and in the subsequent passage indicated why this section had seemed of prime importance at trial, but why in fact the solution is not to be found in S9. At p164 F after referring to the Attorney General’s advice that S9 precluded the disclosure of information to the defence he said:

“I find no such compulsion in the Attorney General’s advice, for even if it gave a sound reason for refusing disclosure to the defence (which for the reason stated I believe it does not) the logic cannot be transferred to the supply of material, admissible or otherwise, to prosecuting counsel. If this, too is to be withheld, a justification must be found elsewhere. I believe that the right place to search for it is in section 2, and that although the way in which the matter arose at the trial made it natural to concentrate on the questions which counsel for the defence might properly ask in cross-examination, the preoccupation with section 9 has tended to obscure the real point in the case.”

Lord Mustill then went on to analyse S2(2)(b) which provides:

“The Secretary of State shall not issue a warrant under this section unless he considers that the warrant is necessary -

(b) for the purpose of preventing or detecting serious crime;....”

He held that this should be narrowly construed as relating only to the first and second stages of fighting crime namely first forestalling and secondly seeking out of crimes, not so forestalled, which have already been committed, but did not extend to prosecution of crime. This conclusion accorded with the practicalities of S6 of the Act which requires the narrowest possible currency to the physical products of interception and the destruction of such product as soon as its retention is no longer necessary for the purpose of S2(2). See p164 H - 166 H.

At p167 A he said:

“The narrower reading also makes sense of the otherwise impenetrable section 9. If the purpose of Parliament was to allow the intercept materials to become part of the prosecution process it is hard to see any point in a provision which would make it wholly or at least partially (according to how the section is read) impossible to use them in that process; and if that had been the intention it is equally hard to understand why Parliament did not say so in plain language. By contrast, on the narrower reading of section 2 there would be no need to make explicit provision for the admissibility of materials which by virtue of section 6 would no longer exist, and the purpose of section 9 can be seen as the protection, not of the fruits of the intercepts, but of information as to the manner in which they were authorised and carried out. Inquiries as to these matters were to be confined to the tribunal under section 7, and the defendant was not to have the opportunity to muddy the waters, at a trial by cross-examination designed to elicit the Secretary of State’s sources of knowledge or the surveillance authorities’ confidential methods of work. Evidently the proscription of questioning on the existence of warrants was seen as an economical means of achieving this result.

The narrower reading of section 2 is strongly supported by the history of the Act. I need not repeat this. The criticisms in Malone -v- United Kingdom 7 EHRR 14 which prompted the Government to change its mind and legislate were directed not to the long-established practice but to its inaccessibility, imprecision and lack of formal safeguards. The Act was plainly designed to put these matters right, and I can see no reason to suppose that the Government had suddenly and spontaneously decided to go much further and overturn the practice which had persisted for decades of separating the process of surveillance from the prosecution of offenders”

At p 169 B Lord Mustill said:

“My lords I am conscious that in giving my reasons for this opinion I have omitted any detailed analysis of the judgments of the Court of Appeal in Effik 95 CAR 427, and in the present case. In doing so I intend no discourtesy whatever to the Court of Appeal whose judgements I have studied with care and profit. The fact is, however, that the arguments addressed in Effik were fundamentally different from those which your Lordships have heard, and the concentration on section 2 rather than section 9 has given a new perspective to the arguments in the present case. I therefore believe it permissible not to prolong an already long judgment by discussion of these cases, and simply to say that I agree with the decision of the Court of Appeal in the present case albeit not altogether with the reasons for it, and that in my opinion the decision in Effik, 95 CAR 427 , should be overruled.”

It seems to me to be reasonably clear that the reason why the Court of Appeal’s judgment in Effik was overruled is as a result of the combined effect of S2(2)(b) and S6 of the Act, and Mr. Spencer accepted this. These sections have no application to a consensual interception. Indeed apart from S1 and S9(1)(a) all the other main provisions of the Act are solely concerned with the issue of warrants and their scope (sections 2 and 3), the system of issue and their duration and modification (sections 4 and 5), what is to happen to the product of warranted telephone intercepts (section 6); section 7 sets up the tribunal whose concern is S2 to S5; S8 deals with the commissioner whose concern is with S2 to S6. In my opinion this is also the effect of Lord Templeman’s speech.

Mr. Spencer relied on a passage in the speech of Lord Jauncey of Tullichettle. After setting out S9(1) of the Act at p143 H he said:

“It was argued by the defendants that this subsection merely prevented the asking of questions as to whether or not an interception had taken place but did not prevent the material derived from such intercept being introduced in evidence in some other way, such as by admission. However, the clear purpose of the subsection is to prevent evidence being elicited which suggests than an intercept has been made and this would be a pointless exercise if, nevertheless, the content of that intercept was to be disclosed. Indeed it is very difficult to see how such content could be used in evidence without disclosure of the circumstances in which it became available.

My Lords, I have no doubt that Parliament intended that the existing practice of not using intercepted material as evidence should continue. Thus section 6 provides that there should be the minimum disclosure and retention of intercepted material and section 9 prevents the asking of questions suggesting that a warrant to intercept material has been or is to be issued”

But it seems to me that this too has to be read in the context of the case, particularly the provisions of S2(2)(b) and S6.

Accordingly it seems to me that the general statement of the law on the construction of S9(1) to be found in the Court of Appeal’s judgment in Effik, namely that it does not prevent the admission of the product of a telephone intercept to which the Act applies, is to be modified only to the extent that it relates to a warranted intercept. Accordingly S9(1)(a) is not sufficient by itself to prevent admissibility of the substance of a consensual interception. Furthermore since on the question of admissibility, the fact that the evidence may have been obtained unlawfully is irrelevant, cross-examination to show that the intercept was not consensual cannot be entertained, quite apart from the prohibition in S9(1)(a).

In granting leave to appeal the single judge thought arguable the question whether the prohibition effected by S9(1)(a) on any enquiry as to the genuineness or existence of consent makes the admission of the evidence unfair under S78 of the Police and Criminal Evidence Act 1984. Mr. Spencer did not argue this point either before the Judge or this Court. He confined his argument to the admissibility of the evidence, rather than on the exclusion of admissible evidence. We do not therefore need to consider this point, but we can see nothing unfair in the admission of the evidence; and this accords with the views of the Court of Appeal in Effik which, on the assumption made by the Court, involved a serious breach of the Act.

We turn to the second ground of appeal argued by Mr. Spencer in Choudhary’s case. This relates to the judge’s direction concerning a large sum of money found by the police in the house of one Talbot in Liverpool on 19 January 1995. £4,800 was found in Bank of England notes concealed in underpants and £69,790 in a shoe box in the kitchen. Choudhary admitted that he had taken about £60,000 to the house at about 1 pm on 19 January. While the police were conducting the search, Choudhary’s car come up to the house but then drove off. The police obtained a report following a “Condor” test on the notes. A copy of this report was found in premises occupied by Kurd and Saleen Bhatti (another alleged conspirator) at the time of Kurd’s arrest on 28 March.

Choudhary’s explanation of the £60,000-70,000 was that it was a joint venture with Talbot in the import of gum arabic. The £60,000 was saved from takings from his shop. He had sent the report to Kurd because he owed Kurd money and it was to show Kurd that he had the money, although it was temporarily in the custody of the police. He also wanted Kurd’s advice as to a London Solicitor who might advise on the recovery of the money. In relation to the money the Judge gave the jury this direction at p7 D-H.

“The question is whether you can consider the existence of the money and the claim by Mr. Choudhary for it as being relevant to the issue as to whether Mr. Choudhary was part of the conspiracy to supply drugs. It is for you to decide whether the money was indicative of an ongoing trading in drugs and you should regard the existence of this money as relevant only if you reject any innocent explanation put forward by Mr. Choudhary; that means that you are sure the money was not saved from his takings and not handed over by him in connection with the purchase of gum arabic from Nigeria. If there is any possibility of the money being in Mr. Choudhary’s possession for reasons other than drug dealing, then this evidence won’t prove anything. But if you conclude the money was indicative not only of past dealing but an ongoing dealing in drugs then you can take into account the existence of this money together with the drugs in considering whether the necessary intention has been proved.”

In giving this direction the Judge plainly followed what this Court said in Grant [1995] CLR 715 should be done when substantial sums of cash are found in the accused’s possession on a charge of possession of drugs with intent to supply. Mr. Spencer submitted it was not appropriate in the case of conspiring to supply. We have not found Mr. Spencer’s argument easy to follow. In our judgment since intention to supply is a necessary ingredient in the substantive offence, it must follow that it is relevant where the charge is conspiracy to supply. There is no substance in this ground of appeal.

In the result the appeal in the case of Rasool is allowed. Choudhary’s appeal is dismissed.

MR BHAGOBATI: My Lords, the Crown respectfully ask the Court not to order a retrial in the case of Rasool. The CPS and the police have formed the view that there is no prospect of recalling the only witness against Rasool, Hassan Barakat, who is presently living outside the jurisdiction, and whilst the Crown respectfully thanks the Court for its offer of a retrial and though it is a matter for your Lordships, it is the application of the Crown that such a retrial should not be ordered in this case.

LORD JUSTICE STUART SMITH: I do not suppose you oppose that?

MR BLAKE: You will not find me arguing against that. I had hoped to argue from a different angle, that you should not order a retrial on the basis of the defendant's ill health.

LORD JUSTICE STUART SMITH: I do not think that would be a matter for us. But since the Crown do not want it... (Pause)

In the light of the Crown's application that we should not order a retrial, we will delete that part of the order and simply quash the conviction in the case of Rasool.

MR BLAKE: My Lord, there is one other matter, if I could trouble you, and that is the question of costs. The position is that, at the grant of leave by the single judge, legal aid was granted but only in favour of junior counsel alone. Mr Backhouse, QC, felt it right that he should attend given, as you now know, the position he was placed in as to his judgment as to whether this defendant should have given evidence or not. He felt that there might have been some enquiry or criticism of that judgment and therefore he felt it appropriate that he should attend.

My Lords, in addition to that, those who instruct me and another firm of solicitors carried on acting for a while and gained certain documents, including a medical report, which I think you have had placed before you at the hearing, from Mr Rovlands, if you remember, regarding this appellant's ill health.

LORD JUSTICE STUART SMITH: I do not think that was of any relevance.

MR BLAKE: It was hopefully urged -- and I know you have mentioned the matter; it would be a matter for you -- but it was certainly within your Lordships' Court's discretion not to order a retrial if justice and fairness so required. There are older cases to the effect that, if you felt that or the ill health of the defendant was such that you would not order a retrial, then it was for that purpose such a report was prepared.

My Lord, in addition to that, his family have paid monies to the solicitors Malik Adams, who instruct me, and gave further instructions to Mr Backhouse. In total I am asking there should be an order for costs from central funds to cover Mr Backhouse and the solicitors in the preparation and appearance before you in this appeal.

LORD JUSTICE STUART SMITH: I cannot remember now, did Mr Backhouse have a junior?

MR BLAKE: No, my Lord. The position is in the court below he did, as I understand it, but at the granting of leave by the single judge it was ordered for junior counsel only. He made representations that he felt it was necessary he should attend, but the administration of your Lordships' Court did not make any alteration to that order so it stood. However he carried on because he felt it was his duty to his client and the Court that he should appear before your Lordships.

LORD JUSTICE STUART SMITH: Could we alter the legal aid order so that it would be legal aid for leading counsel only?

MR BLAKE: You could do.

LORD JUSTICE STUART SMITH: That would cover that part, would it not?

MR BLAKE: Those who instruct me would ask in any event that it is within your power to make an order for costs from central funds if an appellant has incurred any costs over and above that covered under his legal aid order, and certainly in the instant case Mr Rasool has. Your Lordship, there would also have been the requirement, as you know, if a retrial had been necessary, to address you on the question of whether it was within your discretion so to order one or justice or fairness would require it. Furthermore the question of bail and other attendant orders would have needed to have been dealt with, including further legal aid and assignment to counsel again. So in those circumstances it was necessary, and certainly Mr Backhouse was greatly assisted by those who instruct me in the preparation of this appeal. My Lords, therefore I would ask that, in fairness to Mr Rasool and his family, an order should be made for costs out of central funds.

LORD JUSTICE STUART SMITH: Yes, so far as Mr Backhouse's attendances are concerned, we will alter the legal aid certificate so that it covers leading counsel only.

MR BLAKE: I am most grateful.

LORD JUSTICE STUART SMITH: We will make an order that the solicitors' costs properly incurred should be recovered out of central funds.

MR BLAKE: I am most grateful to you.

(Submissions re renewed application for leave to appeal against sentence followed.)

LORD JUSTICE STUART SMITH: Mr Spencer on behalf of Choudhary renews his application for leave to appeal against sentence. The sentence of ten years' imprisonment was imposed in this case. The judge approached the matter on a basis that, on first occasion, on 21st March, 1 kilogramme of heroin was brought into the city and, on the second occasion, 28th March, a lesser amount was brought in. Mr Spencer makes the point that, so far as the kilogramme of heroin on the 21st is concerned, we do not know, because it was not sampled, what the purity of that heroin was. He submits that the judge may have been in error in assuming (if he did) that it was 100% purity.

It seems to us that the most likely level of purity would be that which was similar to the second occasion, namely 43%. If that is so, then the two transactions together exceed 500 grammes and they were within the bracket proposed by Aranguren 99 Cr App R 347 of ten years or upwards for transactions of this sort. It is plain that, and the judge so found, Mr Choudhary was near the centre of this conspiracy. That is manifest and is not challenged by Mr Spencer. In our judgment the sentence of ten years cannot be criticised.

MR SPENCER: If your Lordships pleases, could I mention one further matter my Lord? I am sorry to be pressing the Court with further matters. My Lord, thanks to the kindness of somebody within the administration of this building, I received a fax of the judgment yesterday; so I have had an opportunity to digest it. What I am minded to do, and indeed what I do, is to invite the Court to consider whether you would be prepared to certify that a point of law of general public importance arises out of the admissibility issue.

LORD JUSTICE STUART SMITH: Have you proposed a question?

MR SPENCER: So far as a question is concerned, I had anticipated Mr Lever being here today because he had discussed with me whether a question could be put. However, it would be easy to put. Certainly my own thoughts are something along these lines:

Whether evidence obtained by an intentional intercept of a public telecommunications system is admissible in a criminal

trial when the intercept was not authorised by warrant.

That essentially represents the gist of the discussion that took place before your Lordship. But I am certainly very happy to put that in a fairer form.

LORD JUSTICE STUART SMITH: I think we should consider the proposed question, and no doubt it would be helpful if you discussed that with Mr Lever. I do not know whether we would be prepared to certify that, but if we have the question, we will consider it.

MR SPENCER: Can I deal with that in writing at a later date?

LORD JUSTICE STUART SMITH: Yes.