England and Wales Court of Appeal (Criminal Division) Decisions

Ozer & Ors, R. v [2002] EWCA Crim 925 (25th April, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM HHJ DUNN
SITTING AT WOOLWICH CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th April 2002

Lord Justice Latham:

1. On the 27^th April 1998 in the Crown Court at Woolwich before HHJ Dunn QC, the appellants were convicted of involvement in the importation of heroin into this country from Turkey and Hungary on a massive scale. The appellant Esat Kaan was convicted of conspiracy to supply heroin and was sentenced to 22 years imprisonment. The appellant Izzigil was convicted of conspiracy to supply heroin, for which he was sentenced to 8 years imprisonment, one count of assisting in the retention of benefit from drug trafficking and was sentenced to 8 years imprisonment to be served consecutively, and one count of failing to disclose information relating to the laundering of money which was the proceeds of drug trafficking and was sentenced to 2 years imprisonment, again to be served consecutively, making 18 years imprisonment in all. The appellant Onbasi was convicted of conspiracy to supply heroin and was sentenced to 20 years imprisonment.
2. The offences came to light as a result of a surveillance operation by the police, in particular on the 1^st and 2^nd April 1996. They were keeping watch on two premises in Tottenham, North London, 10, Burleigh Court, which had been rented on the 1^st April 1996 by a co-conspirator Ozakan, and 20A, Fairbourne Road, which had been rented previously by Ozakan on the 20^th January 1996. They also kept observation on three cars, a BMW car belonging to the appellant Onbasi, a Nissan car belonging to Dervis Sehitoglu, and a Honda car.
3. On the 1^st April, the only significant event was that Sehitoglu and the appellant Onbasi went to 20A, Fairbourne Road where they were joined by Ozakan and Kuni who was also named as a co-conspirator, but who escaped arrest and fled out of the jurisdiction to the Turkish Republic of North Cyprus.
4. On the 2^nd April the police saw two holdalls being taken into 10, Burleigh Court. The first was taken in by Sehitoglu, from the boot of the Nissan driven by Ozakan They both entered and then left the premises. Later, the Nissan returned and the second holdall was taken into the premises by Ozakan from the car’s boot. Again both went into the premises. Meanwhile Kuni was seen driving the Honda in the area. Sehitoglu and Ozakan were arrested as they left the premises. Sehitoglu had £1,253 in cash on him and keys including those of 20A Fairbourne Road. When asked about the holdall he said “The man in the Honda told me to carry it”. Ozakan had on him the tenancy agreement for 10, Burleigh Court and a gas bill for 20A Fairbourne Road. The Nissan was searched and a plastic carrier bag containing 9.1 grams of heroine was found. 10, Burleigh Court was searched and the two holdalls were found concealed in the bases of two beds in the main bedroom. In them were respectively 25 packages and 33 packages, containing a total of 44 kgs of compressed heroin to the value in excess of £7 million. £28,890 in cash was found behind a bath panel.
5. Officers then went to search 20A Fairbourne Road. Hydraulic compressing machinery, two moulds, a split tyre and a food mixer were found all contaminated with heroin. A number of other items were discovered which also bore traces of heroin. While the police were in the premises, Kuni and Onbasi approached the premises, but realised that the police were there and fled. Onbasi was subsequently arrested in June 1996.
6. As a result of what was found at both premises and on Sehitoglu and Ozakan, other premises were raided where documents were discovered which clearly related to heroin dealing. On the 4^th April, the BMW belonging to Onbasi was found and searched and contained a small foil package containing heroin. On the 24^th April 1996, the police searched 19, Darwin Road as a result of information that they had received, where they found 12 sealed packages of heroin, which, on forensic examination, showed characteristics similar to heroin found from one of the holdalls at 10, Burleigh Court.
7. Sehitoglu, Ozakan, Kuni, and Onbasi were charged with conspiracy to supply heroin based on this evidence. Sehitoglu and Ozakan both pleaded guilty. As we have said, Kuni absconded. Sehitoglu was sentenced to 15 years imprisonment, which was reduced later on appeal to 8 years imprisonment, for reasons which will become apparent. Ozakan was sentenced to 25 years imprisonment, which was reduced to 18 years imprisonment on the basis of his plea of guilty.
8. Sehitoglu not only pleaded guilty, but indicated that he was prepared to provide information to the police and, indeed, to give evidence which he did at the trial of the Appellants. It was apparent from the information that he provided that the conspiracy was substantially wider in scope than the deliveries of heroin which the police had discovered as a result of their surveillance. His account was that at least from November 1995, heroin was being imported into this country by a co-conspirator Kulunk, who was the main provider of heroin in this country. Kuni would appear to have been in charge of the disposing of the heroin. The amounts were substantial. Whatever may have been the original scale of importation, which he said was up to 15 to 20 kilos per fortnight from Turkey, by April 1996 deliveries were up to 80 kilos per week; indeed he said that at one stage consignments of 100 to 150 kilos were being received. The drugs from Turkey would be off-loaded from lorries into cars and taken to streets in the Wood Green area where they would then be collected. In addition, drugs were imported by cars from Hungary approximately once a month at 20 kilos a time which were collected from garages behind the address of another conspirator.
9. The account Sehitoglu gave to the police, and the evidence he gave at trial implicated not only Kulunk, Kuni, Onbasi and Ozakan amongst others but also the appellant Izzigil. As far as Izzigil was concerned, Sehitoglu said that he saw Izzigil frequently with Kuni. Izzigil was a cashier at a branch of the Turkish Bank in Haringey. He saw him on one particular occasion apparently helping Kuni with accounts, which he ascribed to the drug dealing. Izzigil was involved in at least one delivery of heroin in February 1996. On another occasion he was present in a car when heroin was delivered and money received. Sehitoglu also described an occasion upon which he went with Onbasi taking £9,000 of what he described as drugs money to Izzigil at the Bank. Izzigil then arranged for its transfer in two lots of £4,500 to avoid the bank’s drug trafficking precautions in place to comply with the statutory obligations to disclose transactions known or suspected to be related to drug trafficking. This formed part of the basis of the charges against Izzigil of being involved in laundering the proceeds of drug trafficking.
10. Meanwhile, the forensic examination of packages found at 10, Burleigh Court, had disclosed that, according to the prosecution forensic scientist Mr Beange, a piece of clear adhesive tape was within the packaging of one of the packages of heroin and clearly showed a fingerprint of the appellant Esat Kaan. The appellant Esat Kaan was at the time resident in North Cyprus. He was connected, albeit distantly, to both Kuni and Kulunk. He had been sentenced in May 1986 to 7 years imprisonment but had absconded while on home leave in 1988. The jury were told of the conviction, but not the nature of the offence. The prosecution case was that the package of heroin within which the clear tape was found was one which had been packaged in Turkey, and that the only sensible inference from the presence of the tape was that he had been present at its packaging and involved in arranging the consignment. There was evidence to show that he had travelled to Turkey on a number of occasions in the early months of 1996 from North Cyprus which would have enabled him to have been involved in that arrangement. There was also evidence of frequent visits to this country despite the danger to him of arrest as an absconding prisoner. He came to this country on the 2^nd April 1996, and was arrested when the forensic evidence was made available to the police. In interview he said that he had not been out of Cyprus at any time during the early months of 1996 because of the pregnancy of his wife. The prosecution allege that this was a relevant lie which the jury were entitled to take into account when deciding whether or not he was involved in the conspiracy.
11. The police then investigated the financial affairs of the appellant Izzigil and the bank records of any transactions with which he had been associated. The latter showed that over a 12 month period the appellant Izzigil had been the cashier when a total in excess of £40,000 was transferred by Kuni from the United Kingdom to Cyprus. He was also the cashier when a further £50,000 in total was transferred by other conspirators. There was confirmation of Sehitoglu’s evidence in that the appellant Izzigil was responsible for arranging two transfers of £4,500 on the 15^th December 1995, which were consistent with Sehitoglu’s account in relation to the £9,000 which he and Onbasi had taken to the bank. The police also discovered that appellant Izzigil was himself using two accounts which were not in his name. In January 1996, Safak Cankaya gave the appellant Izzigil a mandate in relation to an account in Cankaya’s name at the bank when he returned to Cyprus. In a total of three statements, he said that this was to enable the appellant Izzigil to pay for the export of his motor car and other items to Cyprus. A total of approximately £20,000 or there abouts went through that account between January and June 1996 consisting of cash deposits and payments out to the appellant Izzigil. In his statements, Cankaya denied any knowledge of these transactions. Another account was opened in the name of Biresen Gertik. According to a statement by Gertik, this was opened with his consent by the appellant Izzigil. Gertik stated that this account was used to enable money to be transferred by the appellant Izzigil to Cyprus where he, Gertik was to hand the money over in cash to the appellant Izzigil. In excess of £20,000 was passed through this account in June 1996. Despite the submissions of the appellant Izzigil’s counsel, the evidence of both Cankaya and Gertik was read under the provisions of s. 23 and 26 of the Criminal Justice Act 1988.
12. The appellant Esat Kaan submitted at the end of the prosecution evidence that he had no case to answer. The judge rejected that submission on the basis that the presence of his fingerprint on the clear piece of tape inside the package which the prosecution alleged came from Turkey was sufficient to justify a jury properly directed, in convicting him. He gave evidence, denying that he played any part in this conspiracy.. He admitted that he had absconded from prison, but had returned regularly to this country, using a crudely altered passport. He also admitted that he had been to Istanbul on a number of occasions from Cyprus in the early months of 1996, in particular the 20^th March 1996 despite what he had said in interview. As far as the visits to England were concerned, they were for family reasons and in order to be able to continue his hobby of flying. He had no connection with any of the main conspirators save for the extremely distant relationship by marriage to Kulunk. His address book was found to contain the telephone number of Kuni. He did know a man called Tashir who was an associate of some of the conspirators. The only explanation he could give for the presence of the clear tape with his fingerprint was that Tashir had assisted him on one of his visits to the United Kingdom in wrapping up belongings which were to be sent back to Cyprus.
13. The appellant Izzigil, in his evidence, accepted that he was a friend of Kuni. Although he admitted that he knew that Kuni was involved in heroin, he at no stage played any part in any dealings or activities involving heroin. Transfers of money from the United Kingdom to Cyprus were common place. He neither knew nor suspected that any of the transfers with which he was concerned for Kuni or for anyone else were in any way related to drug trafficking. He accepted that he had used the accounts of both Cankaya and Gertik for his own purposes. As far as the account of Cankaya was concerned, this was used effectively as a deposit account. He was anxious that the bank should not know of money that he had because he and another cashier had been responsible for acceptance of a delivery of £250,000 worth of cash which was found to be £5,000 short. The account was used, with Cankaya’s knowledge according to him, for business purposes. He further accepted that he had used Gertik’s account to transfer money from the United Kingdom to Cyprus. This was for bona fide business purposes, in conjunction with Gertik, who was in the motor trade in Cyprus and with whom he had a business relationship.
14. The appellant Onbasi, whom Sehitoglu placed at the centre of activities in this country, like himself and Ozakan, made no answers in interview, and gave no evidence. Before trial, he had however, submitted that the indictment was bad in law, and that the trial was an abuse of process. Those submissions were rejected by the judge.
15. The appellant Esat Kaan appeals against his conviction on two grounds. The first is that the judge was wrong to reject the submission that there was no sufficient evidence to go before the jury. The second is that new evidence obtained on his behalf throws doubt on the prosecution assertions, which had been accepted at trial, that the piece of clear tape on which his finger print appeared was inside the package of heroin. As to the first ground, it was submitted to us by Mr. Hill, QC on behalf of the appellant that the prosecution case, based on the assertion that the package must have come from Turkey, and therefore the clear tape, if it was inside it, must have been wrapped in the package during the packaging process in Turkey, was flawed. There are two separate strands to this argument. As to the first, the evidence of Sehitoglu was to the effect that by April 1996, Kuni had decided that the purity of the heroin being received from Turkey, which he said was 80%, was greater than was necessary for retail purposes. Accordingly, heroin from Turkey was routinely cut in order to reduce its purity. The purity of the heroin discovered at 10, Burleigh Court, and in particular the heroin in the relevant package, was approximately 53%. It was therefore submitted that the only proper inference to be drawn from those facts was that the packages were the result of a cutting exercise carried out in the United Kingdom and could not therefore support an argument that the packaging had been effected in Turkey. As to the second, Sehitoglu’s account of his movements on the 2^nd April 1996 was significantly at variance with that of the police observations. His account was that the holdalls in which the heroin was contained had been collected from cars in the usual way that the shipments from Turkey were collected. The police observations, however, showed that there was at least the opportunity for the holdalls to have been collected from premises near 20A, Fairbourne Road, so that they could have been the results of a cutting operation. The prosecution case was that no equipment was discovered which matched the size and shape of the packages in question. In particular, the packages were slightly smaller than the moulds found at 20A, Fairbourne Road. The packages also displayed on a significant number a circular mark which could not have been produced by those moulds. Further, although packaging materials were found at 20A, Fairbourne Road, and 10, Burleigh Court, none of these matched the materials used for the packaging of the packages in question. Whilst we acknowledge the force of the appellant’s argument, we consider that this was essentially a matter for the jury to determine on the basis of its assessment of the evidence of Sehitoglu. The judge was correct, in our judgment, in concluding that if the jury were satisfied by this evidence that the packages had their origins in Turkey, then the presence of the appellant’s fingerprint within the package on the clear tape was sufficient to entitle the jury to conclude that the appellant must have been involved in the packaging process in Turkey.
16. The fresh evidence which we were asked to consider under s.23 of the Criminal Appeal Act 1968 consisted of reports from a fingerprint expert, Peter Swann, and reports and oral evidence from Pamela Hamer, a forensic scientist. It was submitted that this evidence, if accepted, threw doubt on the forensic evidence called, and accepted, at trial to the effect that the clear tape was a folded piece of tape containing one finger print of the appellant which was found inside the relevant package. The tape, it was said, in fact consisted of three separate strips of tape adhered together which contained two, not one of the appellant’s fingerprints. More important was the evidence of Pamela Hamer which, it was submitted, suggested that the clear tape could have been on the outside of the package. It did not seem to us, and was not seriously argued on behalf of the appellant that the fact that the clear tape could have consisted of three strips containing two fingerprints was of itself of any great significance. The important question was not the detailed makeup of the clear tape, or of the existence of one or more than one fingerprint, but whether or not it could properly be inferred that the tape was within a package which had its origin in Turkey.
17. The prosecution case at trial as to the finding of the clear tape consisted of evidence given by two forensic scientists in particular, Paul Swinge and Andrew Beange. Their evidence, which, as we have indicated, was accepted at trial, was that the packages consisted of four layers. The heroin itself was contained in a plastic bag which was in turn encased in polythene. Then two layers of brown tape were used to secure them. Paul Swinge gave evidence that he had examined the outside of all the packages first for apparent and latent fingerprints. His evidence was that he did not see on the outside of any package the piece of clear tape which had, it is accepted, an obvious fingerprint visible. Andrew Beange was responsible for dissecting the packages. His evidence was that he discovered the clear piece of tape adhering to the underside of the top layer of tape, that is between the top layer of brown tape and the second layer of brown tape which in turn overlaid the polythene. There was no evidence as to how he dealt with the clear tape once he had found it, as this evidence was not the subject of any criticism at the trial.
18. The packaging material which had contained the heroin, which consisted of substantial quantities of tape and plastic in various states of disassembly was examined for the purposes of the appeal by Pamela Hamer, whom we accept as an experienced scientist who had spent most of her working life in the Government Forensic Science Service. The material which was made available to her consisted of a wide variety of pieces of tape but also substantial pieces of connected tape which retained their packaging shape. She was able, after what must have been painstaking work, to identify three packaging shapes in particular which appeared to fit together to form a substantial part of a single package. These consisted of a layer of brown tape, overlaying polythene, which gave the appearance of a package which had been slit in the course of earlier examination. She noted discoloration which was in her view consistent with accumulations of fingerprint dusting powder which showed outlines themselves consistent with the shape of the jagged end of the clear tape in question, together with other marks suggesting that the clear tape had in its turn been overlaid along one edge with an identifiable loose strip of brown tape. It was clear from her description of the reconstituted package, and from photographs which she had taken, that, subject to the presence of the two strips to which we have just referred, this package consisted of a single layer of brown tape, albeit overlapping as between strips of tape with a polythene layer underneath, and did not therefore conform with the description of the package in its original condition as described by Paul Swinge and Andrew Beange. Pamela Hamer was herself unable to say whether or not there had been a further layer of tape around the tape layer which she had examined. In order to determine whether or not the brown tape in question left any detectable residue when stripped off other tape, she left two pieces of tape adhering one to the other for 10 days. When she peeled them apart, she could discern no residue left on the surface of the lower tape. She considered, however, that there were two reasons for believing that the clear tape might have been on the outside of the package. First, the outlines which she was able to identify were the result of lines in powder residue from the police examination for fingerprints. The description by Andrew Beange of the position of the clear tape was that it was adhering to the underside of the outer layer of tape as he unpicked it. This would be inconsistent with her findings in relation to the powder, as it would have removed the clear tape from contact with the underlying tape before any powder could have come into contact with that second layer of tape. Second, a photograph taken of the packages laid out on the floor of the bedroom in 10, Burleigh Court shows that at one end of one of the packages, in a position not entirely inconsistent with her findings in relation to the relevant package, there would appear to be signs of clear tape on the outside.
19. Mr Hill, QC submits that the evidence of Pamela Hamer is evidence which meets the requirements of s. 23 of the Criminal Appeal Act 1968, is capable of belief, would have been admissible at the trial, and if it had been available to the jury might have affected the jury’s view of the forensic evidence called by the prosecution and the inferences that could properly be drawn from it, and accordingly the conviction is unsafe. He relies not simply on the matters to which we have already referred, but on the fact that one further finding of Pamela Hamer, although not relied upon by her in this way, provides a possible explanation for the presence of the clear tape which would otherwise appear to perform no function. Underneath the area which could, on Pamela Hamer’s evidence, have been covered by the tape, there was discontinuity in the tape which Pamela described as a small nick. Mr Hill QC, suggests that this could have been the site of an attempt by someone to obtain a small sample of heroin for the purpose of testing for quality. The clear tape would then have been used to repair the hole.
20. We consider that, despite the fact that the evidence of Peter Swann and Pamela Hamer could have been available at the trial, and that there was no real explanation for any failure to adduce such evidence at that time, the evidence of Pamela Hamer, at least, was such that it was both necessary and expedient for us to consider the admission of her evidence. The evidence of Peter Swann as to the fingerprints did not in our view assist. We had no doubt that Pamela Hamer was a scientist of integrity and was providing an honest opinion after painstaking and unimpeachable scientific investigation which needed to be considered with care. The question which we should ask, as posed by Mr Hill QC, is whether or not her evidence, had it been before the jury might have affected its verdict. That this is a useful formulation of the question is clear from the decision of the House of Lords in R –v- Pendeleton [2002] 1WLR 72. The function of this court is underlined at paragraph 17 on page 82 of the speech of Lord Bingham of Cornhill:

“My Lords, Mr Mansfield is right to emphasise the central role of the jury in the trial on indictment. This is an important and greatly prized feature of our constitution. Trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second. The Court of Appeal is entrusted with the power of review to guard against the possibility of injustice but it is a power to be exercised with caution, mindful that the Court of Appeal is not privy to the jury’s deliberations and must not intrude into territory which properly belongs to the jury.”

21. Later, in paragraph 19 at page 83, he said:

“The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the jury to convict. If it might, the conviction must be thought to be unsafe.”

22. The critical question posed by the prosecution case was whether or not the jury could be satisfied that the package had been wrapped in Turkey. If the evidence of Pamela Hamer raised any doubt as to whether or not the piece of clear tape was within the package when found by the police, this would clearly be capable of having had an effect on the jury’s verdict. We are quite satisfied that it did not. She herself did not address her investigation to that question. She was concerned to determine whether or not there was any material which enabled her to identify a connection between the wrappings of the packages and the piece of clear tape. Her findings undoubtedly provided evidence upon which the jury could have concluded that the clear tape might have been on the particular piece of packaging which she identified. But this packaging consisted of one layer of packaging, with polythene adhering underneath. In other words her findings are entirely consistent with the clear tape having been on the layer of tape immediately above the polythene as described by Andrew Beange. The real question was whether or not there was, above that layer, a second layer of tape. That question was not answered by Pamela Hamer’s investigation. Both Paul Swinge and Andrew Beange had given clear evidence as to the existence of two layers of tape. The only finding which Pamela Hamer considered could have thrown doubt on that assertion was her description of the way in which she was able to identify the possible position of the clear tape by reference to lines which she believed to be consistent with deposits of fingerprint powder. But this merely showed that the tape could have been dusted with powder. It does not suggest that it might have been the outside layer. Powder was found by her under the area she believed to have been covered by the clear tape. This finding makes it clear that the presence of fingerprint powder could not, of itself, in anyway determine whether or not the particular surface in question was the exposed surface of the package. It follows that her evidence in no way undermines the evidence of Paul Swinge and Andrew Beange that the clear tape was not visible on the outside of the package. It is inconceivable that it could have been missed if it had been, particularly in view of Pamela Hamer’s evidence that it would appear that the clear tape had been overlaid to some extent by a piece of brown wrapping tape.
23. The submission relating to the nick likewise amounts to speculation which could not have affected the jury’s decision. There was no evidence of continuity between the nick, which Pamela Hamer described as consistent with the use of a sharp object to pry off whatever was on the surface of the tape and the underlying structures of the remainder of the package that she reconstructed. As far as the question raised by the possible existence of a piece of tape over the end of one of the packages raised by the photograph of the packages in 10, Burleigh Court was concerned, we note the careful and hesitant way in which Pamela Hamer approached this. She noted that this suggested that something could have been placed over the end of the particular package in question. She did not suggest that it was in the same position as she described the piece of clear tape which could have been on the package that she reconstructed. She did not suggest that there was any distinguishing feature which tied this finding to the relevant piece of clear tape. Her evidence does not in our view suggest the jury could have considered that whatever was on the outside of that particular package had any relevance to the question which it had to determine. Despite, therefore, the very careful and expert examination carried out by Pamela Hamer, to which we pay tribute, we do not consider that her findings or conclusions could have raised any doubts in the mind of the jury as to the evidence of Paul Swinge and Andrew Beange as to the provenance of the piece of clear tape. We accordingly conclude that her evidence does not undermine the safety of the appellant’s conviction.
24. The appellant Izzigil appeals simply on the grounds that the judge was wrong to permit the statements of Cankaya and Gertik to be read to the jury under sections 23 and 26 of the Criminal Justice Act 1988. The requirements of s. 23(2)(b) had not been met. This sub-section provides:

“The requirements mentioned in ss (21)(i) above are ....

(b) That:

(i) The person who made the statement is outside the United Kingdom; and

(ii) It is not reasonably practical to secure his attendance ......”

25. It was further submitted that the judge wrongly exercised his discretion in admitting the statement under s. 26 which provides:

“Where a statement which is admissible in criminal proceedings by virtue of s. 23 ... appears to the court to have been prepared ... for the purposes:

(a) Of pending or contemplated criminal proceedings; or

(b) Of a criminal investigation,

A statement shall not be given in evidence in any criminal proceedings with the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard:

(i) to the contents of the statement;

(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement of the person making it did not attend to give oral evidence in the proceedings, that its admission or its exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and

(iii) To any other circumstance that it appears to the court to be relevant.”

26. The evidence before the judge established the following. Both Cankaya and Gertik had been interviewed in Cyprus. Cankaya was interviewed on three occasions, Gertik on one. Although the defence solicitors requested Cankaya’s attendance at the criminal proceedings, Cankaya did not attend. At the beginning of January 1998 with the trial due to commence in February, the appellant’s solicitor informed the police officer in charge of the case that he had approached Cankaya in Cyprus in order to interview him, and had been told that Cankaya both refused to see him and did not intend to come to court. The officer then made repeated attempts, both himself, and through an interpreter to contact Cankaya during January and February. Finally on the 24^th February, the interpreter was able to speak to Cankaya informing him that the flight had been arranged for him and that his failure to attend could result in his arrest. Cankaya indicated that he would speak to his employers, but that he had problems as he had three teaching posts, and that his employers were not willing to let him travel. Of the three employers, two on being contacted by the police through the interpreter eventually indicated that they were willing to allow Cankaya to be released for the period of his evidence. Cankaya himself said that he would be prepared to attend if he was given permission by the third employer. The third employer stated to the interpreter that it was not prepared to release Cankaya due to the fact there had been recent school strikes and the students were about to sit examinations. This employer remained intransigent. Cankaya said that in these circumstances he could not attend.
27. As far as Gertik was concerned, after a number of attempts, he was contacted by the interpreter on behalf of the police on the 26^th January 1998. He said that he was willing to come to court but his wife was ill. Arrangements were then made for him to travel in February. The interpreter again spoke to him informing him of the arrangements. He said that his wife was ill again. Despite repeated phone calls informing him that the tickets had been arranged, he refused to come. Eventually, he told the interpreter that he had been informed earlier by the defence solicitor that there was a Turkish connection to the case, and he feared for his own and his family’s life. Further attempts were made at the beginning of March to contact him. He was eventually contacted on his mobile phone on the 4^th March 1998 and agreed to come. However the next day, he stated that having considered his position overnight, he was frightened for his family and was accordingly not prepared to attend.
28. The judge was referred to the dictum of Lord Lane CJ in Bray [1989] 88 Cr App R 354 at 357, where he said:

“.... Whether it is reasonable or not is not to be examined at the moment the trial opens but must be examined against the whole background of the case.”

29. As McCowan LJ said in French & Gowhar [1993] 97 Cr App R 421:

“The right way to approach it is to consider the matter as at the date of the application and see whether at that date it is reasonably practicable to secure his attendance.”

30. The judge was also referred to a passage in the judgment of Beldam LJ in Hurst [1995] 1 Cr App R 81 at page 92 where he said:

“The requirements in sub-section may have to be examined either before the trial, or at the trial. In the former case where an application is made the statement of a witness should be admitted in evidence without calling the maker, the court obviously would have to look at the future to see whether it would be practicable for the witnesses attendance to be secured at the date of the trial.”

31. The application in the instant case was made during the course of the trial which lasted from the 9^th February 1998 to the 27^th April 1998. It was therefore clear that continuing attempts were being made during the course of the trial to secure the attendance of the two witnesses. By the time the application was made, which was on the 3^rd March 1998, the judge was, in our view, fully entitled to take the view that the prosecution had satisfied them that those attempts had been to no avail. Whether or not a different result could have been achieved by making earlier attempts to secure their attendance before the trial commenced or by different methods of persuasion, does not in our view determine whether or not at the time the application is ultimately made, “it is not reasonably practicable to secure his attendance”. The answer to that questions depends upon all the facts of the case at the time that the application is made. We have no doubt that the judge was entitled to conclude the requirements of the sub-section had been met.
32. It was then said that the contents of the statements were such that the judge should not have concluded that it was in the interests of justice in all the circumstances for these statements to be read. It was submitted that the evidence of both witnesses was intended to persuade the jury that the appellant had been using these accounts, in the case of Cankaya without his consent, and in the case of Gertik, for an illicit purpose. It was necessary for the purposes of the appellant’s defence to cross-examine them to show that Cankaya was aware that his account was being used, and for a purpose which did not imply that it was being used for the proceeds of drug trafficking, and that in the case of Gertik, that the money was being used for the joint benefit of Gertik and the appellant in perfectly legitimate business activities in Cyprus. It was submitted that it would not be possible for the appellant to have a fair trail were he not able to ask questions to this effect of each of the witnesses.
33. There was, however, material in Cankaya’s own evidence that he was deceiving the United Kingdom Immigration Authorities. This was material which was capable of being used effectively to suggest that Cankaya’s account was one which should be treated with caution. The appellant was able to give all the necessary evidence to establish his own case. In these circumstances, it seems to us that the judge was entitled to take the view, that with appropriate directions to the jury, no unfairness to the appellant will result from permitting the statements to be read. In his summing-up, the judge gave impeccable directions to the jury as to their approach to these statements and the caution with which they should be approached on the basis that Cankaya had not been cross-examined. We consider that the judge was correct to permit the statements to be admitted in the first instance and dealt with them in the summing-up in such a way as to ensure that there was no unfairness to the appellant. As far as Gertik was concerned, there was independent evidence which was capable of being used by the appellant to suggest that his witness statement was unreliable, if the jury was so persuaded, which did not require Gertik’s presence at the trial to elicit. Further, there was supporting evidence of a joint business venture between the appellant and Gertik which, again, did not require the presence of Gertik to elicit. In these circumstances, once again, we consider that the judge, given that he directed the jury properly, exercised his discretion in a way which cannot be challenged in this court, and dealt with the evidence in such a way that no unfairness resulted to the appellant.
34. It was submitted on behalf of the appellant that we should, however, consider that the verdict of the jury was unsafe by reason of a question which the jury asked in the course of their deliberations. It was as follows:

“Please could you clarify the following for us, with reference to Count 1 by law. If a defendant makes an agreement to help, one of the conspirators with matters not directly involved in the supply of heroin, is he guilty of conspiracy?”

It is suggested that in some way this indicated that the evidence of Cankaya and Gertik had assumed a central role in the appellant’s case. The argument is, that if the jury had been satisfied by the evidence of Sehitoglu, that evidence would have itself entitled the jury to convict the appellant of involvement in the conspiracy. The only purpose, it is said, of this question was to clarify in the jury’s mind the extent to which they could use evidence of the financial transactions as of itself as being evidence of involvement in the conspiracy. In our judgment, this reads far too much into the jury’s question. It simply suggests that the jury was properly concerned as to the extent to which it could use material not directly related to the supply of heroin as evidence of involvement in the conspiracy. That appears to us to be an eminently sensible question for the jury to ask. It was not necessarily directed to the case of this appellant solely. In any event, it does not affect our view as to the propriety of the judge’s approach to the reading of the statements in question.

35. The appellant Onbasi appeals on one ground only. On the 9^th February 1998, the judge rejected, as we have said, an argument that the indictment should not proceed against this appellant on the grounds that there had been an abuse of process. The abuse of process alleged was that on the 15^th October 1996, at Enfield Magistrate’s Court, before the appellant was committed to the Crown Court, the lawyer who had conduct of the case on behalf of the Crown Prosecution Service was said to have given an undertaking that the conspiracy charge which the appellant then faced would be dropped and would be replaced by a substantive charge of being concerned in the supply of heroin. This “undertaking” was endorsed on junior counsel for the appellants back sheet.
36. The judge, in rejecting the submission was prepared to deal with it on the basis that the assertion that there had been such an undertaking was correct. He held, however, that he could see in the circumstances no abuse of process in the prosecution subsequently determining to continue with the conspiracy account. We agree.
37. Counsel on behalf of the appellant sought to persuade us that this was in some way analogous to the situation in the case of Bloomfield [1997] 1 Cr App R 135. That was a case in which a trial was due to take place in the Crown Court. Counsel for the prosecution informed the court that the prosecution were asking for an adjournment on the grounds that at the adjourned hearing, no evidence would be offered against the defendant because it was accepted that he had been “set up”. The request for the adjournment was a deliberate tactic to avoid it being known outside the court that the prosecution intended to offer no evidence. The prosecution subsequently changed its mind. The defendant was then tried and convicted and appealed. This court, in allowing the appeal, said:

“Looking at the case in the round it seems to us that this is an unusual and special situation. The decision to defer the trial on December 20 was taken for the benefit of the prosecution in order that they would not be embarrassed when it was said in court that no evidence was being offered. The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice in the presence of the judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.

Of course the circumstances of each case have to be looked at carefully, and many other factors considered. As the Court said in the Mahdi decision, we are not seeking to establish any precedent or any general principle in regard to abuse of process. We simply find that in the exceptional circumstances of this case that an injustice was done to this appellant.”

38. That passage from the judgment adequately explains why we do not consider that it provides any support for the appellants submission in the present case. No injustice was done to the appellant. Whilst we accept that no prejudice has necessarily to be proved in order to make good an argument based on abuse of process, in this case it is difficult to see how anything other than prejudice could result in the sort of injustice, or affront to justice, which would justify the conclusion that the prosecution should have been stayed. It is to be noted that, even now, there is no evidence before the court in affidavit, or in any other form, which establishes the precise circumstances in which the so called undertaking was given. That would in any event have been a prerequisite for this court even considering whether or not to intervene.
39. Accordingly, these appeals against conviction are dismissed.
40. Turning to sentence, we have already considered the sentence of a co-conspirator Kulunk, who, as we have said, was, according to the judge, the prime mover in the importation of heroin, in that he sourced the heroin and made the arrangements for its importation. We have dismissed his appeal against a sentence of 26 years imprisonment, based upon the judge’s conclusion that he would have imposed 30 years imprisonment had the appellant not pleaded guilty, as he did, on the eighth day of the trial. We consider that the scale of the importation of heroin in the present case, in which the street value must have been well in excess of £100 million justified placing this case in a category requiring exceptional and severe sentences. This court had previous considered sentences imposed for this conspiracy, as we have already indicated, in a judgment which is reported as Sehitoglu and Ozakan [1998] 1 Cr App R(S) 89. The court there held that the appropriate sentences for those two conspirators would have been 24 years imprisonment after a trial in the absence of mitigating circumstances.
41. We turn then to the individual sentences in the present appeal. As far as the appellant Esat Kaan is concerned, the judge clearly concluded that the evidence as to the fingerprint established, together with the other evidence in relation to the appellant’s movements, that he played a significant part in the operation in Turkey. We consider that the judge was entitled to take this view and that the sentence imposed was a proper sentence to reflect that involvement. As far as the appellant Izzigil is concerned, we can see some justification for the argument that the consecutive sentences were not appropriate. However, it seems to us that the judge was seeking to provide an indication of the extent to which he considered that this appellant was involved in the supply of heroin on the one hand and the money laundering on the other. At the end of the day, the real question is the extent to which the total sentence of 18 years imprisonment could properly be said to be wrong in principle or manifestly excessive. In our judgment, it was not. The appellant Onbasi played a significant part in the operations in this country, to the extent that it might be difficult to distinguish him from Sehitoglu or Ozakan. But it is right to note that he was a young man of 20 at the time of the offences. He was clearly influenced by Kuni. In these circumstances, the sentence of 20 years imprisonment properly reflected, in our view, an appropriate discount to take account of that mitigation. The sentence was certainly not wrong in principle or manifestly excessive.