England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 23rd June 2004

(10.30)

1. LORD JUSTICE HOOPER: Is the appellant here?
2. MR O'CONNOR: My Lord, the appellant has not been produced. He is in Long Lartin Prison, a long way from London. He would wish to attend the full appeal. I think he has the option and I think he has chosen not to come. It is a very uncomfortable journey, and he would be lodged for some nights in London and he chose not to, but thank you for my Lord's concern.
3. LORD JUSTICE HOOPER: We take it from you that he does not want to attend?
4. MR O'CONNOR: That is correct. That is correct my instructing solicitor tells me. My Lord, I appear for Mr Kassar, together with my learned friend Mr Marshall. Mr Chawla and Mr Khokha are here for the Crown. This hearing follows from a reference by the Criminal Cases Review Commission in March 2003 relating to convictions in July 1993 for two drug importation conspiracies. The one occasion on which the matter appeared before the Court before was in March this year when agreed directions were made. And the intention, of course, of today is to clear the way to a prompt and final hearing of this appeal as soon as possible.
5. I hope the Court has, my Lord, our skeleton argument for today which in contradistinction to the earlier one is some 40-pages long and a bundle of authorities as well. My Lord, since that skeleton argument the goal posts, in terms of documentation, have been moved twice in the last week. Firstly, with the service of what might be called, in shorthand, a Grimes bundle of documentation and, secondly, yesterday, redacted versions of the CCRC confidential annexe, and also attached to it a redacted version of the police report commissioned by the CCRC, dated 1st May 2002, from Detective Chief Superintendent Cook.
6. My Lord I hope will not expect, therefore, that our skeleton has been able to keep pace with those two developments.
7. LORD JUSTICE HOOPER: Mr O'Connor, as you were told we held a PII directions hearing on Monday, and what you have got here is, at least, one of the consequences of that hearing. As you were also told, a transcript was prepared should it be necessary at any stage to look at it, but it was essentially a directions hearing.
8. MR O'CONNOR: My Lord, we are very grateful for that. All I can say, without specifying it for the moment, because it is too soon, there are obviously pretty significant developments arising out of that documentation to some extent significantly reinforcing areas about which we had already expressed concern, but also new areas and new issues are opened up.
9. My Lord, with that limitation, our skeleton argument is still our foundation for today, because today is probably not so much the opportunity for exploring the lack of safety of the conviction, but more to prepare the ground properly for the hearing which will decide that issue.
10. LORD JUSTICE HOOPER: Mr O'Connor, I hope it does not sound churlish to say, first of all, that we have read your skeleton argument and we value it highly. It was a very helpful document to us. But what we are very anxious now to do is to get on with the first part, at least, of the PII hearing. We can assure you of this, that nothing will happen in anyway detrimental to the appellant without giving you full opportunity to address us. But for the moment we have a number of concerns in mind and we would like to move straight into the PII hearing. The first stage anyway.
11. MR O'CONNOR: My Lord, certainly I will not stand remotely in the way of that and I can't stand in the way of that at all. Can I just express two immediate thoughts? Firstly, we have tried to make clear, and I would wish to make clear very, very briefly, how out position is, that in this case it would be a violation of Article 6(1) for the Court to proceed to consider material ex parte, and then also for the same Court to be considering the safety of the conviction. In very, very shorthand, R v H and C in the House of Lords might appear to decide that you can do that compatibly with Article 6(1). In fact it doesn't, and I think my learned friend might agree with that.
12. Secondly, if that is right, the only authority on this point is Botmeh and Alami, to which my Lord was party. Botmeh and Alami bears very considerable distinctions from this particular case, and if, again, if R v H and C says that there is no absolute argument of incompatibly with Article 6 then the converse applies. There is no absolute argument that it is always compatible. If you decide it on a case by case --
13. LORD JUSTICE HOOPER: Mr O'Connor, you will have an ample opportunity to develop any such argument if it be necessary to do so.
14. MR O'CONNOR: My Lord, I have stated my position.
15. My Lord, secondly, just practicalities, the learned trial judge in my murder trial at the Central Criminal Court has risen for today as a generous step, because also things are going on in that trial this afternoon. That means that that trial is adjourned by a day. May I say, it is a short trial. It is not a complicated trial and therefore time is not very sensitive in that trial. Nevertheless, it is a very, very serious case of double murder and it is the only defendant.
16. LORD JUSTICE HOOPER: It follows from that if we start the PII hearing now you will be in chambers.
17. MR O'CONNOR: Yes.
18. LORD JUSTICE HOOPER: And, therefore, if we need your assistance later on in the day, you will be there.
19. MR O'CONNOR: My Lord, can I --
20. LORD JUSTICE HOOPER: And will you hold yourself ready to give us assistance?
21. MR O'CONNOR: Can I amend that slightly? What I will in fact do is, I will go, if I may, to the Central Criminal Court, where my client has been produced for conferences. I will conduct those conferences this morning. Is it all right if from lunch time I will be in my chambers and instantly available?
22. LORD JUSTICE HOOPER: And on the mobile in any event contactable.
23. MR O'CONNOR: My Lord, and my junior will stay all the time anyway. He will be around and contactable.
24. LORD JUSTICE HOOPER: All right. Thank you very much.
25. MR O'CONNOR: Thank you very much.
26. LORD JUSTICE HOOPER: We will now go into chambers. Everyone to leave court other than those assisting you, Mr Chawla, who we will need to have identified.
27. MR CHAWLA: Yes.

(10.39)

(The Court Sat In Private)

(2.00)

(In Open Court)
28. LORD JUSTICE HOOPER: Yes, Mr Chawla.
29. MR CHAWLA: My Lord, the prosecution has considered the material with the Court during the course of a hearing related to matters over which public interest immunity might apply. The nature of that material, coupled with the fact that that material was not disclosed to prosecuting counsel, or the trial judge, and therefore never assessed by either of those two, has led the prosecution to conclude that the only proper course available to it is not to contest this appeal.
30. LORD JUSTICE HOOPER: Mr O'Connor, we are going to agree with that conclusion, but is there anything you wish to say?
31. MR O'CONNOR: My Lord, only this. That we are indeed grateful to my learned friend, and indeed to the Court, for wrestling with these difficult matters, despite the fact that one is on opposing sides a great deal of understanding about the difficulty that arises with the materials is extended.
32. My learned friend has formulated carefully a valid and accepted ground for quashing these convictions. Of course, that does not exclude the fact that there may be others, and we could, on the material that has been disclosed, formulate potential other bases for quashing. That matters in two ways. The extent of the reasons that the Court gives for quashing the conviction matters obviously to the public and to a defendant. My Lord, knows of the case of Guney where effectively no substantive reasons were given at all, and in some cases that is the only appropriate case. This may or may not be such a case. We stand ready to help the Court in this sense. That we could formulate for a later more reasoned judgment grounds of appeal based on the material that has been disclosed to us, which could form wider bases for the quashing of the conviction.
33. My Lord that is all I can say. We stand ready to help if the Court is going to adjourn for a later more fully reasoned judgment. If this is a Guney type case, and my Lord is happy to leave it that way, then we can't really help, of course, because we don't know the core of the reasons behind my learned friend's ground.
34. LORD JUSTICE HOOPER: Yes. Thank you. We will retire to consider that point.

(2.05)

(Short Adjournment)

(2.09)

35. LORD JUSTICE HOOPER: On 14th July 1993 in the Crown Court at Newcastle the appellant was convicted of two counts of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, namely cocaine. He was subsequently sentenced to 24 years' imprisonment on each count concurrent. A confiscation order was made with a period of imprisonment in default of payment. He now appeals against the conviction, the Criminal Cases Review Commission having referred the case to the Court of Appeal Criminal Division for consideration under section 9 of the Criminal Appeal Act 1995.
36. In paragraph 6.1 of the report the Commission wrote:

"As a result of the Commission's enquiries, the Commission has concluded that there was a failure by the prosecution in respect of its disclosure obligations in the context of information and material held by Customs and Excise which was relevant to an assessment of the role played by Mr Asare in the importations."

37. We have considered some of that material during the course of a hearing in chambers and in the absence of the appellant and his legal advisers.
38. The prosecution now says:

"The nature of that material, coupled with the fact that that material was not disclosed to prosecuting counsel, or the trial judge, and therefore never assessed by either of them, has led the prosecution to conclude that the only proper course available to it is not to contest this appeal."

39. In the light of the material which we have examined, we, like the Commission, have concluded there was such a failure, and in those circumstances, Asare being so central to the prosecution's case, the appeal must be allowed and the conviction quashed.
40. We shall give more detailed reasons for that conclusion in a judgment, which will be confidential to the prosecution only.
41. It follows, Mr O'Connor, that we decline to consider any other grounds.
42. MR O'CONNOR: Thank you, my Lord.
43. LORD JUSTICE HOOPER: Now, how are we making sure that the appellant knows about this? Has he been informed?
44. MR O'CONNOR: He has not yet successfully been informed, but urgent steps --
45. LORD JUSTICE HOOPER: Any steps that you need the Criminal Appeal Office to take.
46. MR O'CONNOR: It often takes --
47. LORD JUSTICE HOOPER: If there are any problems either come back to me or the Criminal Appeal Office.
48. MR O'CONNOR: It often takes faxing an order, but that will be done. Thank you very much.
49. LORD JUSTICE HOOPER: Can I give you back your authorities, you might need them for another case?
50. MR O'CONNOR: Thank you. You never know.

(Pause)

51. SIR JOHN ALLIOTT: Mr Chawla, can I hand back my six tab volume which includes the confidential annexe?
52. LORD JUSTICE HOOPER: Mine will be available to you after we have delivered the judgment.
53. MR JUSTICE MCCOMBE: Can I do the same with mine?

(Handed)

54. LORD JUSTICE HOOPER: We will hand down the judgment.
55. MR CHAWLA: I am grateful, my Lord.

(2.15)