England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MANCHESTER CROWN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/07/2006

Lord Justice Maurice Kay:

1. On 27 January 2005 in the Crown Court at Manchester the appellant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class A drug, namely diamorphine. He was later sentenced to 8 years' imprisonment. He now appeals against conviction by leave of the Full Court.
2. The factual background is as follows. At 4.15pm on 29 July 2004 at Manchester Airport the appellant was stopped by a Customs Officer, Helen Gatherer. He had just arrived from Islamabad. The officer asked him a number of questions in order to ascertain his identity and the details of his journey. He produced his British passport and driving licence. He gave details of his home address in Bradford and handed over his flight ticket. In answer to further questions he said that he had been away for four weeks in order to visit his sick mother, that he had paid for his ticket in cash and that he had purchased it the day before he had departed. He was then questioned about his luggage as follows:

"Q: Is this all your luggage?

A: Yes.

Q: Did you pack it yourself?

A: Yes.

Q: Everything in the case belongs to you?

A: Yes.

Q: Has anyone given you anything to bring into the country?

A: No.

Q: Did you pack the cases yourself?

A: Yes.

Q: Are these the cases you took out of the country with you?

A: Yes.

Q: And the burgundy case, did you take that out of the country with you?

A: Yes.

Q: Are you aware there are certain items you cannot bring into the country, such as drugs, indecent and obscene material, firearms and offensive weapons?

A: Yes.

Q: Have you got anything like that?

A: No.

Q: Have you been in contact with any drugs?

A: No.

Q: Have you left your bag unattended at any time?

A: No.

Q: Have you got any cigarettes, tobacco or alcohol?

A: No.

Q: How many cigarettes have you got?

A: Only two packs of Gold Leaf.

Q: Two packs of two hundred?

A: I don't know.

Q: Have you got any large amounts of money?

A: Not now, no.

Q: Where do you live?

A: Bradford.

Q: Do you work?

A: I'm a chef in Leeds.

Q: How are you getting home to Bradford?

A: My brother or cousin is collecting me.

Q: Everything in these cases belong to you?

A: Yes.

Q: Can I have a look in your cases?"

3. The appellant had a baggage trolley on which there were a grey soft-sided suitcase, a burgundy hard-sided suitcase and a cricket bat. At the request of the officer he put the grey suitcase on the examination bench. The officer found a video tape in it and asked the appellant what was on the video. He said that his cousin had previously visited Pakistan and had recorded the video. The appellant then put the burgundy hard-sided suitcase on the examination bench. It had silver square stickers on it with the words "Tony", "Mirup" and "Nama". Before commencing a search of the burgundy suitcase, the officer asked the appellant again about the video which had been found in the grey suitcase. The appellant said that his cousin was a heroin addict who had gone to Pakistan "to get clean" and that "they made a video of him?'. The officer asked the appellant if he had ever used drugs but the appellant said that he was anti drugs and only used alcohol.

4. The appellant opened the burgundy case, whereupon the officer searched through the contents. She took a swab from the interior of the case and tested it on a screening device. It gave a positive reading for heroin and opiates. Shortly afterwards, another officer cut into the lining of the case, exposing some black plastic. She cut through the plastic and inserted a spike into the cut. This revealed a brown substance between the outer and inner skins of the suitcase. A drugs field test was carried out on the brown substance and a positive reaction for heroin was obtained. The appellant was then arrested and cautioned.

4. Some hours later in the custody suite Ms Gatherer asked the appellant if he would read and sign her notebook as a correct record of the earlier conversation but the appellant declined. On 29 July 2004 the appellant was interviewed in the presence of his solicitor but he declined to answer questions, including questions about what had transpired between himself and Ms Gatherer prior to the arrest.
5. The recovered diamorphine was in six heat-sealed bags. They weighed 1.87kg with pure diamorphine accounting for 1.14kg.
6. At trial the appellant gave evidence and denied all knowledge of the drugs in the suitcase. He said that he had flown from Manchester to Lahore on 3 July to visit his sick mother and family. A friend, Inam Qureshi, picked him up at the airport and took him to his village. When the appellant was due to return home, he discovered that he had purchased too many items to fit in his suitcase so he asked Inam Qureshi to obtain an additional suitcase. He made this request because Inam Qureshi lived in a larger town and had access to more shops. On the evening of the return flight, Inam Qureshi arrived to take the appellant to the airport and produced the burgundy suitcase in which the drugs were later found. All the appellant had done was to pack some of his belongings into the burgundy suitcase without noticing anything untoward.

Ground 1: failure to caution earlier

7. The first ground of appeal relates to the refusal of the trial judge to hold a voir dire before deciding not to exclude the evidence of the conversation between the appellant and Ms Gatherer pursuant to section 78 of the Police and Criminal Evidence Act 1984. Obviously, what the appellant had said to MS Gatherer was inconsistent with his eventual evidence about the acquisition of the burgundy suitcase in Pakistan. Counsel then representing the appellant (not Mr Bennathan) made it clear that she sought to exclude the evidence of the conversation on the ground that Ms Gatherer had had a reasonable ground to suspect the appellant of an offence before or at an early stage of the questioning and ought therefore to have administered the caution significantly before she did. The judge asked prosecuting counsel if he wished to call evidence on the topic. Counsel replied:

"Can I say first of all that to clear up, it will not clear it up but to give the Crown's answer effectively. The Crown, Customs and Excise's position is that they will neither confirm nor deny the reason for a stop in any case ... What I can say, of course, is that being I am the Customs' case officer as part of the prosecution, I am aware of our disclosure duties ... and that of course, sweeps in the argument that was put before us this morning, and I can say that on the basis of what I have seen of the argument this morning there is nothing to disclose ... I cannot take it any further than that. That is the explanation the Crown puts forward."

8. The judge then observed to defence counsel that it was not the policy of Customs to confirm or deny whether they had information, that that would not preclude the defence from calling Ms Gatherer, "but that is the answer you would get if you asked her".
9. Defence counsel submitted that such a policy on the part of Customs & Excise ought not to determine the matter. When asked by the judge for an indication of what she might wish to cross-examine Ms Gatherer about, defence counsel referred to the tickets and luggage labels which might have given rise to a reasonable suspicion that more suitcases were being brought into the country than had been taken out. She also wished to explore whether a sniffer dog had been used on the luggage before its retrieval by the appellant. It may be that counsel also had in mind to explore why the officer had proceeded to swab the interior of the burgundy suitcase when she had not taken such a course in relation to the earlier search of the grey suitcase. There was some discussion about recent authorities on the subject (to which we shall return) and the judge acknowledged that the defence statement maintained that the burgundy suitcase had been given to the appellant in Pakistan.
10. In refusing to hold a voir dire or to exclude the evidence, the judge said in his ruling:

". . . Mr Ralston, who is conscious that unused material might be germane to this issue of admissibility, has not sought any PII hearing from which I deduce that there is no material in the possession of the prosecution that would indicate that there was any advance suspicion that the defendant was carrying drugs. Thus, the matter has to be addressed from the witness statement of Helen Gatherer, and the question is, on any sensible reading of that statement, is it likely or possible that the officer suspected the defendant had drugs with him when she asked that question about taking the cases out of the country with him ... In my judgment no sensible reason for this conversation prompts me to think that by the stage of the conversation when the defendant said he had taken the burgundy case out of the country with him the officer suspected that he had drugs with him. In my judgment it was not appropriate that the defendant be cautioned at that stage."

11. The judge went on to say that, even if he were wrong about that, and a breach of the Code had been established, he would not have excluded the evidence under section 78. Mr Bennathan's central submission is that the judge was wrong to refuse to hold a voir dire and was wrong to defer to the policy of Customs & Excise. The legal context of this submission is as follows. By paragraph C: 10.1 of the Code of Practice, it is provided:

"A person who there are grounds to suspect of an offence ... must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them. If either the suspect's answers or silence ... may be given in evidence to a court in a prosecution."

12. In the appended notes for guidance it is provided at C: 10A:

"There must be some reasonable, objective grounds for the suspicion, based on known fact or information which are relevant to the likelihood the offence has been committed and the person to be questioned committed it."

13. Where the Code is relevant to any question arising in the proceedings, the court must take it into account in determining that question (section 67(11) of the Police and Criminal Evidence Act 1984). In this and many other cases the submission on behalf of the defence was that there had been a breach of the Code and that the evidence ought therefore to be excluded under section 78 of the 1984 Act which provides for such exclusion

"...if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

14. At least since Keenan 90 Crim App R 1 it has been accepted that not every breach of the Code necessarily requires the exclusion of evidence pursuant to section 78. Generally, the approach has been to consider whether a breach is "significant and substantial". In Walsh9 1 Crim App R 16 1, this Court stated (at page 163):

"This does not mean, of course, that in every case of a significant or substantial breach . . . the evidence' concerned will automatically be excluded. Section 78 does not so provide. The task of the Court is not merely to consider whether there would bean adverse effect on the fairness of the proceedings but such an adverse effect that justice requires the evidence to be excluded. "

15. Essentially, the case for the appellant in this Court is that the way in which the judge dealt with the application to exclude the questions and answers was wrong because it denied the appellant the opportunity to cross-examine the officer on the issue of suspicion such as would raise the duty to caution under the Code. Mr Bennathan rightly accepts that a defendant cannot simply demand to test the evidence on a voir dire. There must be a foundation upon which to construct an application to exclude the evidence. He submits that such a foundation was clear in this case. He points to three matters contained in the witness statement of the officer: (1) the questions: "Are these the cases you took out of the country with you?" and: "And the burgundy case, did you take that out of the country with you?"; (2) the question: "Have you been in contact with any drugs?"; and (3) the fact that the officer searched the grey case without swabbing or spiking it but, when she searched the burgundy case she swabbed it, obtaining a positive reading for heroin, whereupon her colleague spiked it to like effect. All this, it is suggested, was consistent with a reasonable suspicion that more cases were being brought back into the country than had been taken out (a fact confirmed on the face of the ticket) and that the burgundy case contained drugs.
16. We accept the submission that a proper foundation was laid by those matters. It is implicit in that acceptance that it is appropriate to look at the whole of the witness statement to see whether the foundation has been laid and not just to analyse it schematically, question by question and answer by answer. Looked at as a whole, it gave rise to a justified apprehension that the officer may have had a reasonable suspicion sufficient to support a proper application for her evidence to be tested in the . voir dire.
17. That no voir dire was held was the result of trial counsel informing the court that it was Customs policy not to confirm or deny the reason for the stopping and questioning of a person in any case and that, having taken instructions from the officer, he was satisfied that there was no material which he was bound to disclose -that is nothing which might undermine the prosecution case or assist the defence case on the issue. Nor was there any need to make an application for public interest immunity. No one doubts that counsel acted conscientiously and consistently with what he was told by the officer. It seems that, in the view of the judge, that was enough.
18. It appears to be common ground that what prosecuting counsel said amounted to an implied assurance that the officer did not have any cause for suspicion based on material derived from an informant or an intercepted communication, for these would have been sensitive matters upon which an application for public interest immunity would have ensued. Mr Bennathan is content to take that at face value. However, he submits that that leaves the possibility of a reasonable suspicion based on non-sensitive material -for example, the use of a sniffer dog, an inference from the additional piece of luggage, an observation at the airport. In the light of the evidential foundation to which we have referred, he submits that the defence were entitled not to accept the instructions imparted to and through prosecuting counsel at face value. They were entitled to cross-examine and to receive non-sensitive answers, unimpeded by a global policy. We should add that we have not been shown the policy in writing. It is said to be set out in an internal handbook and to be included routinely in instructions to counsel.
19. Mr Bird submits that to have held a voir dire was simply one way of dealing with the problem and not a mandatory way. The more appropriate procedure would have been for the defence to have made an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 and for that to have been processed in the normal way. Alternatively, defence counsel could have taken up the suggestion of the judge and called the officer herself. At all events, it was up to the judge to decide how to proceed and, in all the circumstance, his chosen way is unimpeachable.
20. We do not agree with Mr Bird's submissions. It seems to us that the judge ought not to have been satisfied that the matter could be resolved by deferring to the policy of Customs, and placing his faith in what had been imparted to prosecution counsel by the officer. That was simply not the correct way of proceeding. Nor was the suggestion that defence counsel could call the officer when the judge knew that the officer would still invoke the policy and the judge, seemingly. would allow her to do so. An application under section 8 may have been a possibility but it was not the application that was before the judge and, as we take the view that the application before the judge had a proper foundation, he ought to have acceded to it. His failure to do so was an error.
21. What are the consequences of that conclusion? Mr Bennathan does not invite this Court to hold that a breach of the Code has been established. He submits that we are in no position to make such a finding because we do not know what the evidence of the officer would have been.
22. Mr Bennathan's submission that we should not trouble ourselves with whether there was in fact a breach of the Code and, if so, whether it was significant and substantial, is an unusual one. It seems to us that it probably derives from the difficulty which stands in the way of the appellant as a result of the recent case of Senior and Senior [2004] 2 Crim App R 12. There, one of the Customs officers at the airport had opened one of the suitcases before its retrieval by the appellants and had noticed a chemical smell. He had spiked the suitcase and obtained a positive response to a field test for cocaine. The luggage was then permitted to continue on its course. What happened thereafter was not dissimilar to the facts of the present case in that officers proceeded to ask ostensibly routine questions without first administering the caution. No voir dire was held in that case but, at the end of the prosecution case, a submission was made that the pre-caution questions and answers should be excluded. The judge held that there had not been a breach of the Code but that, even if there had been, it would not have been appropriate to exclude the evidence. This Court took a different view on the question of breach. Giving the judgment of the Court, Potter LJ said at paragraph 33:

"When objection is taken in cases of this kind on the basis that Code C has been breached, it must be adjudicated on the merits of the individual case rather than by rule of thumb."

23. He later added (at paragraphs 37 to 38):

"In the absence of evidence from the Customs officers to suggest a different position, we would infer that the officers suspected both women of being involved in the smuggling operation. Even if that were not so, on the basis that the state of mind of the officers was such that all they needed was confirmation that the bag belonged to one of the appellants, it seems clear to us that the question as to ownership should have been asked at the outset and, thereafter, a caution administered to both before both were questioned further.

Even so, and accepting such breach of the Code as having been significant and substantial, we do not consider that this is a case where fairness required exclusion of the questions and answers under section 78 of PACE. As to surprise or unfairness at the time the questions were asked, like the judge we consider that the questions were of a type which any traveller, and certainly one involved in drug smuggling, must expect to face upon entry to this country, and to suggest that the appellants might not have so expected and were not ready to answer the questions without the presence of a solicitor is in our view fanciful. Nor, as pointed out by the judge, is this a case where there was dispute over the content of the questions and answers; thus the absence of protection as to the recording of the 'interview' is of no significance whatsoever. The questions were straightforward and able to be answered without difficulty or error of understanding. Any refusal to answer them at that stage following caution (if one had been administered) and whether with or without a solicitor, would have been bound to give rise to a degree of prejudice in the eyes of the jury in the sense of opening the appellants to adverse inference by reason of their refusal to answer. Nor were the appellants under any difficulty or disadvantage in the trial process in explaining their position to the jury."

24. We are bound to say that we have difficulty in understanding the phrase "and certainly one involved in drug smuggling" because it seems to rest on an inappropriate presumption. Nevertheless, we find the rest of that passage to be relevant and cogent in the context of the present case. When, in the present case, the judge made his alternative ruling that, even if there had been a breach, he would not have excluded the evidence, he did so expressly by reference to Senior and Senior, describing it as "effectively a much stronger case for the defence". We consider that it would be wholly speculative to take the view that, if a voir dire had been held in the present case, it would or might have produced evidence of a more serious breach than that found by this Court in Senior and Senior. We, too, are persuaded that this is a less compelling case than Senior and Senior. The questioning was unremarkable and not in the least oppressive. There was no dispute as to the accuracy of the evidence of the officer's note of the conversation. When the appellant came to give evidence his explanation for his answers to the questions was that he had been tired and confused.
25. We have come to the conclusion that the erroneous failure of the judge to hold a voir dire does not affect the safety of this conviction. There is no basis to infer even the possibility of bad faith on the part of the officer. We are confident that, whatever had materialised on a voir dire, if it had been suggestive of a breach of the Code, the breach would not have exceeded in seriousness or substance the one in Senior and Senior. If the appellant had been cautioned, it may be said that he would have had the opportunity of reflecting on the seriousness which might be attached to his answers. Whilst that can, to a degree, be accepted, it is absurd to suggest that those stopped in a Customs check and asked questions about their luggage and movements are unaware of the formality of the occasion. The questions were not complicated. The explanation which the appellant provided in evidence for answering in the way he did would have been considered by the jury in the context of all the circumstances of the case. We do not doubt that the jury would not have convicted him unless they were sure that his declared lack of knowledge and his evidence of the circumstances in which he came into possession of the second suitcase were untrue. We reject this ground of appeal.

Ground 2: the good character direction

26. The appellant had one previous conviction being (in the judge's words) "a minor offence of public disorder for which he was fined the sum of £50". The judge directed the jury as follows:

"At the age of 25 he has not got any other criminal convictions and this has significance in two areas. First, it may be some indication that he is not the sort of person likely to commit this type of offence. Secondly, it may be something you will wish to reflect in considering his credibility, by contrast, for example, with someone who had convictions for fraud or perjury. Whether you do see his good character as being relevant in one or both of these respects is a matter for you, because you are the judges of the facts. I merely identify their legal or potentially legal significance."

27. Mr Bennathan submits that this fell short of an unadorned good character direction and that it was particularly important that the appellant should receive the benefit of a fill direction in a case which turned wholly on his credibility. He complains that, in respect of each limb of the direction, the judge used the language of "may be", that the relevance of good character was "a matter for you" and that the judge was "merely identifying" legal or potential legal significance.
28. We detect a degree of grudging sloppiness in the wording of the direction. However, we do not accept that its shortcomings are such as to affect the safety of the conviction. The direction begins with the observation that the character of the appellant ''has significance in two areas". We do not consider that the jury would have been led into thinking that they could choose to give no consideration to good character. We are quite sure that they considered it and, in so doing, construed the direction as meaning that it was for them to decide how much significance to attach to it.

Ground 3: inappropriate comment

29. As we have related, in his formal interviews the appellant chose not to answer questions. The judge rightly concluded that, in the circumstances of this case, the jury should not draw any adverse inference. He directed the jury as follows:

"Now this is a direction I want you to pay attention to please. There are some cases in which a person's failure to answer questions in interview can be held against him in deciding if they are guilty but I direct you as a matter of law that this is not such a case. You should not draw any adverse inference against the defendant that he failed to answer questions in interview. On the other hand, what it' means is that until he gave evidence in this trial his account of Mr Qureshi had not been articulated before and so the Customs have had no opportunity of checking whether that account is correct or not."

30. We do not understand that somewhat gratuitous postscript. For one thing, it is not the case that the defence emerged for the first. time in the witness box. It had been foreshadowed in the defence statement, albeit that that was not delivered within the time limit fixed by statute. Moreover, it is questionable whether the limited resources allocated to the investigation could ever have enabled Customs & Excise to check the appellant's account with people in Pakistan. As it happens, it seems that the prosecution accepted that Mr Qureshi might be a genuine person and not a figment of the appellant's imagination. As with the good character direction, this gratuitous addition to an otherwise proper direction deserves the criticism of this court. However, once again, we do not consider that it affects the safety of the conviction.

Conclusion

31. It follows from what we have said that, whilst we have found reason to criticise the judge in the context of each of the three grounds of appeal, we do not consider that any of the shortcomings affect the safety of the conviction. We should add that we have also considered the grounds on a cumulative basis and we have come to the same conclusion. Accordingly, this appeal is dismissed.