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Cite as: [2002] EWCA Crim 1324

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		Neutral Citation Number: [2002] EWCA Crim 1324
		Case No: 1999/03417/XS

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand,
London, WC2A 2LL

31st May 2002

B e f o r e :

LORD JUSTICE JUDGE
MR JUSTICE ASTILL
and
HIS HONOUR JUDGE COLSTON QC
(sitting as a Judge in the Court of Appeal Criminal Division)
____________________

Between:

	Daniel Burns	Appellant
	- and -
	Regina	Respondent

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

David Lederman QC (instructed by Hughmans) for the Appellant
Michael Brompton (instructed by HM Customs & Excise) for the Crown
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Lord Justice Judge :

This is an appeal by Daniel Burns against his conviction on 4 May 1999, in the Crown Court at Wood Green, before His Honour Judge Lyons and a jury, of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cocaine. On 6 May he pleaded guilty to a second indictment, escape from unlawful custody. He was sentenced to 14 years’ imprisonment for drug importation, with 2 years’ imprisonment consecutive for escape.

The single issue on this appeal arises from the judge’s ruling on an abuse of process argument decided before the start of the trial. No criticism is directed at the conduct of the trial, or the summing up. We are not being asked to consider the merits of the appellant’s case: there are none. The issue is whether officers of HM Customs and Excise misconducted themselves and abused the process of the court. We shall therefore recite the essential facts of the offences very briefly.

On 11 March 1993 two importations of cocaine were organised. The first took place at approximately 6:30pm. A man called Tyler brought over 2kg of cocaine into this country, concealed in 5 shampoo bottles. They had a street value of £358,000. The appellant was charged with criminal involvement in this importation. He was acquitted. The second importation took place at about 9pm. Two sisters brought in approximately 2.3kg of cocaine, concealed in the same way. They had a street value of £458,000. This importation came from the same batch of cocaine as the importation at 6:30pm. It was 90% purity. The common source was in South America.

The Crown’s case was that the appellant organised both importations, planning them for many months, while under observation by Customs and Excise officers. His case was that the evidence demonstrated no more than association, and that he should not be found guilty on the basis of simple association. The Crown contended that the association was neither ‘simple’ nor innocent. The appellant himself did not give evidence. The issue for the jury was whether it had been proved that the appellant had being knowingly concerned in each importation. By their verdict the jury indicated that they were sure that the appellant was guilty of criminal involvement in one importation.

The appellant had been arrested on the day of the importations. He was remanded in custody pending trial. He escaped on 10 January 1994. He made his way to Venezuela, later saying that he had been a stowaway on a boat. He entered Venezuela unlawfully under a false name, and using a false passport.

An arrest warrant was issued on 4 February 1994. An Interpol Notice dated October 1996 asserted that extradition would be requested from any country with which the United Kingdom had an extradition treaty or similar arrangement.

On 7 December 1998 the appellant was arrested in Venezuela for a drugs related offence committed there, and totally unconnected with the offences committed on 11 March 1993. The arrest was a purely domestic matter within Venezuela, and the British authorities were neither involved in or connected with it.

Mr Graham Dick is an officer of HM Customs and Excise, attached to the British Embassy in Caracas, as a Drugs Liaison Officer. On 7 December, he received a fax from Mr Parades of the National Anti Drugs Commission in Venezuela seeking information about a British National named Edward Cooper, with an attached passport in that name. Mr Dick realised that this was probably the appellant, and telephoned Mr Parades. Mr Parades reported that the appellant had been arrested by the Venezuelan internal security services, and would be transferred to Caracas that day. Accordingly Mr Dick went to the National Anti Drugs Commission in Caracas, collected Mr Parades, and then travelled to internal security head quarters. There he was told that the appellant had been arrested on a drugs charge.

Mr Dick met Mr Burns. He introduced himself, explaining his function, seeking his co-operation. Mr Burns was not prepared to offer it. When the appellant complained of mistreatment, Mr Dick also told him that a member of the embassy would visit him to attend to his welfare.

The Venezuelan officer in charge of the investigation advised Mr Dick that the matter would be put before a judge, or investigating magistrate, observing that as the appellant was present in Venezuela on a false passport he would probably be deported. Mr Dick was asked to provide a letter for use before Judge Camero, giving details about the appellant.

We have seen the letter. It explains the appellant’s true identity, and informs the judge that the appellant was a fugitive from justice in this country, having escaped from custody on 10 January 1994. It did not seek or suggest the course which the judge might take. It was a direct response to the request to provide factual details.

Mr Dick was introduced to Judge Camero. He handed her the letter. She read it. She told him that it seemed a straight forward case of deportation to the appellant’s country of origin, as Mr Burns was present in Venezuela on a false passport. She said that she would interview him, and take a deposition and that he would be deported the next day on the BA flight to London. Mr Dick was told that the appellant would be transported to the airport by internal security, and would there be handed to the custody of immigration. Thereafter, Mr Dick, and his colleagues, did not speak to the judge again, nor indeed to Mr Burns.

At the hearing before the investigating magistrate, the appellant admitted that he had arrived in Venezuela as a stowaway, without any documents authorising his entry, and the passport in the name of Cooper was false. He had obtained it some 10 months previously, and paid $50 for it. The passport showed a visa due to expire on 17 December 1998, and he intended to get a resident’s card in the name of Edward Cooper.

In the meantime Mr Dick had informed Customs and Excise authorities in the United Kingdom of the appellant’s arrest. He explained that the appellant was due to be interviewed on 8 December by a judge in Caracas, and that it seemed normal procedure for foreign nationals present in Venezuela on false passports to be deported to their country of origin. Accordingly two customs officers booked a round trip from London to Venezuela. Later that day Mr Dick confirmed that the appellant had been interviewed by Judge Camero, and that he understood that a deportation order would be issued. Accordingly Mr McCann and Mr Roden of HM Customs and Excise flew to Caracas on 9 December. They were met by Mr Dick. Shortly afterwards they were introduced to the head of the Venezuelan-Immigration Service.

A deportation order was made against the appellant. A letter internal to the Venezuelan authorities dated 8 December 1998 informs the reader that the person referred to as Cooper was Burns, ‘a British national currently wanted in the UK in respect of drug trafficking offences.’ It continues, ‘please find attached copies of the international description…dated 10.11.96, a letter sent by Interpol, London requesting the deportation ‘of Burns, and suggests that he should be placed in custody so that the appropriate steps could be taken for his ‘deportation’.

On 9 December the appellant was taken to the airport by internal security officials. He was there handed to the custody of the Immigration Department. Venezuelan officials escorted the appellant to the aircraft for the return flight to London. Mr McCann was handed documents which confirmed that the appellant had been deported from Venezuela.

We have been shown copies of the documents. The letter to the immigration authorities of the United Kingdom says in terms that the appellant ‘was deported by the Migration authorities of the Republic of Venezuela… for producing a false passport in the name of Edward Cooper.’ Mr David Lederman QC, on behalf of the appellant, suggested that this assertion was false. The appellant had not been arrested for producing a false passport. His arrest was connected with a drug offence, and on arrest, he was found to be in possession of a false passport. That was not Mr Lederman’s best point. This letter does not refer to the appellant’s arrest. It simply explains, or as he would argue, purported to explain, the reasons why the Venezuelan authorities were seeking deportation.

The provisional travel document to accompany the appellant stated that he was ‘deported for carrying false documents’ and that he ‘had been refused entry’ into Venezuela. The document also asserted that under the Chicago Convention, as amended by the Montreal Convention, ‘the last country where the passenger embarked on a journey is obliged to accept him/her again if he/she is rejected by another country.’ As the appellant had been a stowaway, who had not arrived by a British Airways flight, Mr Lederman contended that the letter should be treated as stage management, part of a cover-up. For this purpose, he relied on the fact of the round trip by Mr Roden and Mr McCann, together with the undoubted co-operation which must have taken place to ensure that the Venezuelan immigration authorities deposited the appellant on precisely the same flight to London on which they were travelling, and indeed that the British authorities paid for his ticket.

When the aircraft landed in London the appellant was arrested.

Judge Lyons heard evidence on a voir dire from Mr Dick, Mr Roden and Mr McCann. He accepted its accuracy. He rejected the contention that the British authorities had connived at, or colluded with any impropriety by the Venezuelan authorities.

It was submitted to Judge Lyons, and the submission was repeated to us, that it would be an abuse of process for the trial to proceed. This contention was based on the actions of the authorities in Venezuela, whose behaviour was said to constitute a breach of domestic law in that country, and international law, and also based on criticisms of the conduct of British authorities, who were themselves said to be in breach of international law.

After considering the authorities, and the submissions to him, Judge Lyons ruled that the trial should proceed. On the basis of uncontradicted expert evidence in Venezuelan law, he was prepared to approach the case on the basis that the authorities in that country had indeed acted improperly under their domestic law, and under international law. As already recorded, he rejected the criticisms made of the conduct of the British authorities. His findings about the conduct of the Venezuelan authorities are not accepted by the Crown. They sought leave to call fresh evidence on the point. We did not need to resolve this issue, unless we came to the conclusion that the judge’s findings in relation to the behaviour of the British authorities should not be sustained. Accordingly we proceeded on the same basis as the judge, but emphasise that this approach was intended to result in a sensible disposal of the appeal, rather than formal findings about Venezuelan law, and would have to be reconsidered, if necessary, before disposing finally of this appeal.

The proposition on which Mr Lederman’s argument was based is readily understood. His client was a fugitive in Venezuela, ‘wanted’ in the United Kingdom to face charges of serious drug related crime. He pointed out that there is no extradition treaty between the United Kingdom and Venezuela, and accordingly, that the arrangements produced domestically by section 15 of the Extradition Act 1989 should have applied. In the result, his client was deported from Venezuela by an administrative rather than a judicial act. In effect, with the co-operation of the British authorities, he was expelled to the United Kingdom. Extradition proceedings were not initiated. This was a fatal omission. He relied on the decision in the House of Lords in R v Horseferry Road Magistrates’ Court, ex p Bennett (1994) 98CAR114 as providing support for the proposition that, whatever the merits, or the circumstances, if his client should have been extradited from Venezuela, and the British authorities participated in the process by which extradition proceedings were bypassed, an abuse of process was established.

In the light of the careful submission by Mr Lederman, it is perhaps worth emphasising that if the Venezuelan authorities did not want the appellant to remain in Venezuela, the decision that he should be deported to this country was perfectly logical. He was a citizen of the United Kingdom. He had left his country of origin, and the Venezuelan authorities returned him to it. If he had not escaped lawful custody and faced charges on his return, we should not have entertained the slightest concern with what seems to have been a common sense approach to the problem posed by a foreigner who made his way into Venezuela, using a false identity, and who was not wanted there. Equally, as the appellant had escaped from custody, and disappeared abroad, it would hardly have been surprising for the authorities here to be somewhat gratified at the prospect of his return.

We must therefore examine the relevant principles. It is trite law that the court is responsible for protecting the integrity of its process against any improper incursion or abuse by the executive and the prosecuting authorities. To fulfil this responsibility, in cases where the need arises, the court is vested with inherit jurisdiction, rooted deep in the rule of law itself, to stop the trial from proceeding. These are elementary principles, requiring no anxious citation of authority. There are examples in the decided cases of occasions where this power has been exercised because, reprehensibly, the prosecuting authorities have been involved in subverting the course of justice and the defendant’s rights (see for example, R v Horseferry Road Magistrates’ Court, ex p Bennett, cited above, and R v Mullen [1999] 2CAR143).

We should however add that, while these and other, cases identify clear principles, and are thus helpful if they might be in any doubt, the decisions on the individual facts are not decisive of subsequent cases, where similar, but not identical issues are raised. While preventing, or more accurately, acting to prevent the prosecution from benefiting from abuses of the process amounting to what Lord Steyn in R v Latif (1996) 1WLR104 at 112, graphically described as conduct ‘so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to proceed,’ the principles are not apt to require that the conduct of the prosecution at every stage of the process should be unblemished and immaculate. Errors will be made and oversights will occur, and combinations of errors and oversights will take place, which do not justify the conclusion that the process has been abused.

As Lord Lane C.J., pointed out in R v Bow Street Magistrates, ex p Mackeson (1982) CAR24, the decision in an individual case is ‘very largely a question of fact and the inference which one draws from the available facts on affidavits and on documentary evidence which are before us.’ An indicative, but not determinative line, may be drawn between cases where the prosecuting authorities have acted in bad faith, or with an excess of misguided enthusiasm for what is perceived to be a proper objective, deliberately subverting the defendant’s rights not to be forcibly abducted to this country without proper process, and those cases where the prosecuting authorities, acting in good faith, have undermined or contributed to the undermining of the rights of the defendant. In R v Mullen, at p158, Rose LJ pointed out further considerations: ‘In each case it is a matter of discretionary balance, to be approached with regard to the particular conduct complained of and the particular offence charged.’ In short, when deciding whether to exercise its undoubted powers to prevent an abuse of its process, the exercise of the court’s discretion is fact specific.

We therefore reject the submission that unless the extradition process, or its equivalent, has taken place, the court here is obliged to stop the prosecution. That is not what the House of Lords decided in Bennett. The existence of and the need to, exercise a discretion in each case where the issue is raised clearly contradicts the proposition that failures or breaches in the extradition process lead ineluctably to the termination of the trial. Moreover, if the contention were correct, it would apply to cases where the only interference with the extradition process would have been misconduct by the authorities in the foreign country (over which this court has no supervisory control) without any significant contribution by the British authorities (over which it has).

We have considered the criticism of the conclusion below. We take into account the findings made by Judge Lyons of misconduct by the Venezuelan authorities, and the breaches of both domestic and international law assumed against them. The Judge found that there had been no collusion or connivance by the British authorities in these breaches. We see no reason to disagree. They were not involved in the initial arrest. They provided the Judge, or investigating magistrate, with facts with which she wished to be provided. They did not exaggerate or falsify. They understood that the process in Venezuela, if not subject to judicial supervision, certainly involved a judicial element. They understood that on the known facts, the appellant would be likely to be deported to this country.

It is of course true that the British authorities did not try and discourage the authorities in Venezuela from the process, on which they seemed determined, nor question or challenge its legality. It was not incumbent on them to do so. And given their understanding of the view likely to be taken by the Venezuelan authorities, they sought to co-operate in the process, no doubt in the hope of achieving the appellant’s return to the United Kingdom where he could be arrested. In our judgement, the process of this court was not subverted.

We cannot discern any basis for interfering with the judge’s decision that this case should be allowed to proceed. In all the circumstances, we have concluded that his decision was right.

Accordingly this appeal against conviction will be dismissed.

- - - - - - - - - - - - -

LORD JUSTICE JUDGE: May I, before we part from you Mr Lederman, because you are here because of your case. It was not my intention, and I am very sorry if anybody concerned with any of the other cases other than Burns felt the need to be here for 9.30, I do beg your pardon. I hope that some of you who have come a long, have not even set-off earlier than usual. There is no need for any of you to wait. When we have given this judgment, there is an application we will have to hear and then we will have to retire for at least quarter-of-an-hour. I will be away from Court, we will be reconstituting. So please do not wait.PRIVATE

MR LEDERMAN: I have only one. I have not seen a copy of the judgement and await in anxious anticipation. My Lord, your Lordship may have within the Court's file some correspondence about Mr Burns and cancer, I do not know if your Lordships have it. I knew Mr Burns had been suffering from cancer, knew he had a lung removed, I did not bring that to the Court's attention; I did not have any documentary evidence. As soon as the Court rose, I sought to get it. There has been some correspondence. I do not know, with the Court.

LORD JUSTICE JUDGE: We are not aware of it.

MR LEDERMAN: The Court actually granted leave for an independent medical report to be obtained and, my Lord, the bundle of correspondence, a copy of this, in my hand, and I thought it right, as your Lordship recalled Burns was not here on the last occasion, on any occasion, the one before that he had been having the operation on that particular lung. Whether your Lordships feels that is a matter that might affect sentence. If your Lordship is against me on the appeal I thought it right to draw it to your Lordships' attention.

LORD JUSTICE JUDGE: Please do but whether it is our fault or whoever's fault it is does not matter at the moment. We have not seen any documents about your client's health. No member of the Court has seen anything about it.

MR LEDERMAN: Well, my Lord, naturally I am concerned about that.

LORD JUSTICE JUDGE: I am sure you are, so am I.

MR LEDERMAN: If I could hand to your Lordship, simply looking at very briefly a copy, it shows the correspondence that has happened since February, since the last hearing.

LORD JUSTICE JUDGE: I will obviously show this to my colleagues but is there anything else for us to go on? There cannot possibly be a report from Dr Lewis yet.

MR LEDERMAN: No there is not. That is why because of the hiccup in the chain of events, I would ask the Court, I know it difficult it comes right from the barnet, that is attached to the correspondence, the Court to really if, I may put it this way, find as a fact that since Mr Burns' conviction, 3 years ago, he has, he is suffering from cancer, he is in remission, he has had one lung removed.

LORD JUSTICE JUDGE: Well, we will give judgment in the conviction appeal. As it seems to me, but you see Judge Colston has not had a chance to look at them, even these papers. My immediate reaction is that any applications relating to sentence really ought to be informed by the kind of medical report. Obviously we accept that he suffers from this condition but it does not tell us very much about prognoses what it actually amounts to and so on and so forth.

MR LEDERMAN: I entirely agree, my Lord, which is why I think, at the end of the correspondence, there is a suggestion that there should be proper information for the Court. I entirely agree, but your Lordships can see, if you like, both my anxiety and my predicament.

LORD JUSTICE JUDGE: Yes, I do. Shall we give judgment? May counsel have copies of the judgment and the reporters.

MR LEDERMAN: I have one there.

(Judgment read and handed down).

LORD JUSTICE JUDGE: Now Mr Lederman it seems to me that we should adjourn your application in relation to sentence, until as such time as the medical evidence is available. There are two possibilities. One is that the case and any applications relating to sentence should be dealt with as quickly as possible, and if your client is seriously ill, obviously the sooner the better. If that is the case it would be pointless to wait for this Court - this Court cannot reconstitute as presently constituted - pointless to wait for any member of this Court to be available unless you are very anxious that it should. It seem to us, I have not discussed it with my colleagues, we say this case should be listed as soon as the medical evidence is available.

MR LEDERMAN: Forgive my stupidity, does your Lordship mean it could be listed before your Lordship, not necessary-

LORD JUSTICE JUDGE: I am not sitting in the criminal jurisdiction now until October or November, and if your medical evidence is ready, shall we say by the end of June, I should have thought you would want the case to come on in July.

MR LEDERMAN: Listed before another Court.

LORD JUSTICE JUDGE: Before any constitution.

MR LEDERMAN: Again, my Lord, might I trouble you. Would your Lordship consider granting leave to appeal against sentence, that may be in a sense technical.

LORD JUSTICE JUDGE: No. We do not think that is appropriate, Mr Lederman.

MR LEDERMAN: The reason was not in order to get a leg up on the ladder, but simply I thought it might be easier to get it before the Court, if leave has been granted. But, my Lord, that may be a technical thought that went through my mind.

LORD JUSTICE JUDGE: What we shall say is that, could you mark, yes, you or your solicitors, Mr Lederman, if you mark the papers when they are available, can we have a bundle of papers, mark the papers for the urgent attention "(refer to Judge LJ)" and that a note will be made now that the application should be listed within 4 weeks of the arrival of the medical reports on which you are relying.

MR LEDERMAN: 4 weeks.

LORD JUSTICE JUDGE: Shall we estimate for it 20 minutes.

MR LEDERMAN: Certainly.

LORD JUSTICE JUDGE: Estimated length of time 20 minutes. It may be before a constitution in which no member of the Court as presently constituted is present.

MR LEDERMAN: Might I respectfully point out that in your Lordship's judgment when reciting the facts at paragraph 13, your Lordship stated that he arrived in Venezuela as a stowaway "without any documents authorising his entry and the passport in the name of Cooper was false." My Lord, it might appear that he arrived with a false passport.

LORD JUSTICE JUDGE: Mr Lederman, I do not think anybody is going to be troubled too much, but we did not intend in the drafting to not make a distinction between him having no documents which authorised his entry and that the passport in the name of Cooper was false when he got before the investigating magistrate.

MR LEDERMAN: I appreciate what was in your Lordship's mind. Very well, thank you very much.