England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Thursday, 26th January 2006

1. LORD JUSTICE MOSES: This is an appeal against conviction for one count of conspiracy to import class A drugs for which this appellant was convicted in March 2005. He was accused of taking part in a series of importations of heroin, in assisting in the delivery of cardboard boxes, in the inserts of which were secreted quantities of heroin. Since the facts were not in dispute, and the defence was duress, it is unnecessary to give the details of that undisputed evidence, save to note that he was alleged to have been involved with a man called Emin Mustafa and also with his co-accused, Miss Antoniou. The importations took place in 2003. Boxes were delivered- mostly by the well-known delivery company TNT, although it emerged that other boxes had been delivered through another deliverer -- mainly to a shop known as the Fabric Store in Walthamstow where Miss Antoniou worked. Those assisting in the supply of these drugs from Turkey used a company which was called Advantage.
2. In July 2003 two of the boxes were signed for by this appellant and paperwork in relation to them was found at Mustafa's premises. Five consignments of boxes were sent to the Fabric Store and one to a taxi firm where the appellant had worked as a driver. On 14th July a further package was sent to the Fabric Store, again found at Mustafa's home address. There were two further packages found to have contained heroin sent on 21st July via the Fabric Store finding their way to Mustafa's address. He was arrested by police on 25th July 2003.
3. At an address at Aston Mews were found a number of boxes opened. One of the open boxes contained heroin. Others were found in other parts of the address, together with documents, cash and scales. On the exterior of two of the boxes were found the appellant's fingerprints.
4. Surveillance by the Customs and Excise on 4th August enabled officers to see the appellant loitering, as they described it, outside the Fabric Store in Walthamstow. There a number of packages, purporting to contain bath curtains, found, having been delivered by TNT in the previous few weeks.
5. Again, on 5th August, the appellant was seen outside the Fabric Store. It is important for the purposes of the defence he was running of duress to note that the police officers did not see anyone else. The appellant was seen to dispose of some documents which established a connection to previous deliveries at the Fabric Store.
6. The appellant collected a further package from the Fabric Store later on the same day, which had been delivered by TNT, and took it in his car to an address in Edmonton where he arrived on his own. This was the home address of another man, Adnan Algimi. He was important in the case because it was he who was said by the appellant to be responsible for placing him under duress, forcing him to take part in this conspiracy.
7. The appellant had the keys to that address. He obtained rubber gloves en route to that premises, was seen to open a package and remove the inner cardboard sheet from the bath curtains. In that inner cardboard sheet was hidden 11.7 kilogrammes of heroin which the appellant placed inside a wardrobe. When he left the premises, he disposed of the packaging and invoice, placing them in a black plastic bag in the communal bin area. His DNA was discovered in one of the rubber gloves. The appellant accepted he had been on his own in that flat and later that he had removed the drugs from the package. There was, he accepted, no one outside, an important admission having regard to his defence of duress. Prosecution enquiries revealed that his fingerprints were present on a number of additional boxes which had been delivered to the fabric store and from there to Mustafa's home at Aston Mews.
8. The appellant was arrested on 5th August. It is important for the purposes of the grounds of appeal that we should dwell for a moment on what he said on his arrest. When he was arrested, he said that he was a cab driver and he had been given the keys. As the judge pointed out, that was not true. He had not been a cab driver for some months. At trial he was to say that he was in reality an agent of the people who had forced him to work for them. He also lied at that time as to how many boxes he had handled. He said that he had never done this job before, but he had been forced to and his children had been threatened.
9. When he was first interviewed on 5th August, and those responses on arrest were checked, he accepted them. They were not consistent with the evidence that he gave to the jury. On the second interview, he said he had been advised by his solicitor to make no comment. As a result of that advice he would not respond to the account put to him, even though that was consistent with his defence of duress.
10. At that second interview he produced a statement in which he said:

"On or around January 2003 I was living in Tottenham with my family. One day, whilst I was minding my own business, I was kidnapped from a car park at Finchley Road Shopping Centre by a group of Kosovan Albanians. They put me in a car and told me that they would kill me if I did not give them £60,000. I told them that I did not know what they were talking about and jumped out of the car at the end of the M25. I then called the police from a nearby farm who picked me up and put me into the police station where I made a formal complaint."

11. He then identified the police officer to whom he had made a formal complaint as Detective Constable Serge Codd and went on in the statement:

"I did not see these Kosovan Albanians for a couple of months when they threatened to kill me and my children if I did not carry out an errand for them. They told me to collect a bag from a shop on 94 High Street. They told me that there was going to be a lady there, Helen. This Helen Antoniou would give me the bag. I was also given instructions to give her a lift home. She lives at an address in Kingsmead Avenue. I was told to drop the bag off at 118 Pycroft Way, Edmonton. I did not want to do it, but they threatened me with my life and also my children's lives. I have three young children. They also threatened me not to go to the police again and if I did approach the police, they would find out -- I would find out and my children and my family would suffer the consequences. I felt that I had no other choice but to do what I was told. I confirm that I did not know what was in the bag. I have a scar on my leg to prove that my fear is genuine."

12. That was the first statement he made. On the third interview he was given a special warning pursuant to section 36 of the Police and Criminal Evidence Act concerning documents.
13. On the fourth interview he made a second statement relating to those documents. He said:

"With reference to the faxed invoice, dated 31st July 2003, found on my person referring to the purchase of bath curtains, I can confirm that this was given to me, by one of the people who threatened me to carry out this errand. I did not notice that there was an accompanying piece of paper. I was told that if anyone asked me for an invoice on collecting the package from the shop, then I should give them this. No one asked for the invoice. I was given £250 to pay for the package if asked to do so. I would like to reiterate again that did I not know what was in the box. As far as I knew I was delivering a box of bath curtains. The contents of this statement are true to the best of my knowledge and belief."

14. On the fifth interview he would make no comment as to number of packages the Customs officials were likely to find. On the sixth interview he made no comment as to unwrapping the packages and wearing the gloves for those purposes. On the seventh interview he would made no comment as to Adnan Algimi.
15. The appellant's evidence by way of contrast to what he had said on arrest and in interview was to describe how he came to this country in 1997, seeking refugee status because of political persecution. The events of violence which compelled him to take part in this conspiracy took place in 2002. He had met a fellow Albanian, Adnan Algimi, who accused him, unwarrantedly, of taking a car. He said that Algimi and the other man had a reputation for being dangerous. They were accompanied by two others. He was then taken against his will by car to Buckingham on a three hour journey. Money was demanded from him. He was told that two people would be killed that night, one being him. They asked questions about his wife and his older boy, and said they would either take money from him, or his older boy. They told him that they had killed a man in Buckingham in the woods.
16. When the car slowed down, he had jumped out and waded through a canal up to his waist and sought assistance. He had received some assistance from a farmer and his wife who called the police. The farmer's telephone was used to call his wife. The police took his clothes and an ambulance was called. He made a witness statement naming Algimi as one of the kidnappers. He had moved house because he feared that the men would know where he was living. This account, at least in part, was supported by the fact that there was evidence of him seeking help, in great distress, from the farmer and notifying the police who had taken his statement.
17. The next incident that he relied upon in support of his defence of duress was, however, not supported by any complaint to the police. In March 2003 he said he had seen Adnan Algimi again who blamed him for going to the police. He went to a coffee shop with that man and two other Albanians who told him that he had made a big mistake. He agreed to co-operate with them because he was scared. He was told he would have to work in prostitution, drugs, passport and people smuggling. He refused, but when he went to his car he was stopped and ordered to get into the back seat of another car by a man with a gun and a flick knife. He was then stabbed in the leg to give him a taste of the sort of treatment with which he would be met if he did not co-operate. He was threatened with further violence against him and his children. He did not tell his wife, or brother, who was also in the United Kingdom, or the police about it. He was at the time working as a taxi driver.
18. He was then introduced to Mustafa, who was alleged to be Adnan Algimi's partner, and told to work as his driver. He picked up a parcel and met his co-accused Miss Antoniou. He then picked up other parcels and signed for them believing that they contained fake passports or Viagra. He accepted that he had signed for other parcels, both before July and after July, which he had picked up. He also picked up money and cash.
19. He had received instructions on one occasion to open one of the boxes and take out the cardboard packaging. This he did and inadvertently cut the box so that brown powder came out from it. He did not appreciate it was heroin. He was wearing gloves at the time and accepted that traces of heroin were found on his gloves.
20. In support of his defence he called his wife who gave evidence that on an occasion loud banging had occurred on the door waking up her children in the middle of the night. Phone calls had been made during the day, some ten in number, by Adnan Algimi who had threatened that he would kill her and the children and had sworn at her so that she was frightened. She had also received a phone call from the farmer in relation to the incident when her husband had been kidnapped.
21. DS Randall supported the fact that his wife had reported threats and banging at the door and silent phone calls.
22. The appellant's brother gave evidence that he had and his brother, the appellant, had been paid in cash for painting work at a restaurant. He, too, had heard from Adnan Algimi on the phone, heard loud banging on his door at night and had seen the injury to the appellant's leg.
23. It is plain from that account of the appellant's evidence at trial that he did not tell the whole story which he claimed to amount to the duress which compelled him to participate in the conspiracy either on arrest or at interview. On arrest, he had lied about where he was living and about his job. He had also lied about the number of boxes which he had assisted in accepting and opening during the course of the conspiracy. He had further lied in interviewed about the delivery of documents at the fourth interview. He had claimed that it was delivered by a man who was threatening him. His evidence was that it was his brother who had delivered those documents. He had further lied about his knowledge of the heroin.
24. During the course of the summing-up the judge gave standard acceptable directions following the Judicial Studies Board Guidance about lies. Later in his summing-up he referred to the lies, which, it was suggested, the appellant had told on arrest and to which we have already referred. But, so it is contended in ground 3 of this appeal by Miss Louise Kamill on behalf of the appellant who appeared for him at trial, nowhere did the judge relate the specific lies on which the prosecution relied to the general warning he had given earlier in the summing-up. Nor did he relate to that general warning, the appellant's reason for telling those lies, namely that he was still under fear.
25. If the judge, as he was bound to do in this case, is to give a warning that the jury must not assume that because the defendant has lied he is guilty and explain that warning, namely that an innocent defendant may wish, by telling lies, to distance himself from the facts which might arouse suspicion, then the judge can only do so with any meaning and clarity by relating that warning to the specific instances in the case. In this case the judge ought to have told the jury that the reason for the lies may have been that the defendant wanted to avoid detection for his full involvement and knowledge about what was occurring, but it did not necessarily follow that the defence of duress was untrue. He ought to have reminded the jury, as we have said, that the defendant had sought to explain his lies by asserting that he was still frightened.
26. The summing-up was thus defective. It lacked clarity and was not properly tailored to the particular facts of the case. To give a general warning at the beginning of the summing-up and then to make passing references to lies during the course of the relation of the facts was insufficient.
27. There was an important conflict between the defendants. This appellant blamed his co-defendant Miss Antoniou who was acquitted by the jury. That hardly assisted in relation to his defence of duress, save to undermine her evidence which was that the appellant gave no appearance of being other than an organiser.
28. That conflict in evidence between the defendants led to an unfortunate passage in the summing-up which had no discernible meaning. The judge said in relation to Miss Antoniou's evidence that she had said that there had been previous boxes and continued:

"... so that may or may not be important. It is something you will have to consider. Be very careful not to start comparing. I have compared it just for the sake of what sort of exercise you should carry out. But you must be obviously deciding at some point who is deciding the truth as between them because that may assist you in deciding who is telling you the truth. So it is an assessment you have to make, but you've obviously got to be quite careful when comparing one defendant against another. But in this case that may be well one of your duties."

It is not clear what the judge intended to convey to the jury in that passage. It is not clear whether he was saying they would have to compare the different accounts given at interview, or that they should not. However, that lack of coherence does not seem to us capable of damaging the defence.

29. Before reaching any conclusion as to those defects in the summing-up it is necessary to turn to ground 4 with which ground 3 was closely related. It is apparent from our account that there were many facts upon which the appellant subsequently relied which he did not refer to in interview. He blamed his solicitors and his fear. Those omissions mirror the lies. There was no account in those interviews, and the statements that he proffered in those interviews, of two incidents of violence on which he relied in support of his assertion of duress. There is no account of his discovery of the heroin or of the number of boxes.
30. Some of those omissions were referred to in the judge's summing-up. Early in the summing-up he gave a conventional and correct direction as to silence at interviews. He made passing reference to facts later on during his relation of the facts, referring to those statements and drawing a contrast between what he said in evidence and those statements. He made reference in at least four passages to that contrast. But, again, we think that the judge ought to have identified those matters on which the prosecution relied and set against them the responses of the appellant, namely that he had failed to mention those facts out of fear. There was a passage in the summing-up during the course of his reminder to the jury of the cross-examination by the Crown, particularly at page 63, where the judge did list the contrast between the original statement and the interview. But, again, he did not tie that in with the standard direction that he had given.
31. These deficiencies deprived the jury of an opportunity properly to consider the issue of lies and silence in the context of the correct approach as explained by the judge. After all, the purpose of the summing-up is not merely to comply with JSB guidance, but actively to assist the jury as to the proper approach to apply to the particular issues in the case. It was particularly unfortunate in this case when counsel for the defence had asked the judge to do so after the first phase of the summing-up and the judge had said he would.
32. But what is the effect of those deficiencies on the safety of the verdicts? The evidence was strong and not in dispute. The appellant could only escape the consequences of his actions if the jury thought there was a realistic possibility that he had been impelled by the belief that either he or his family would be killed or seriously injured if he had not complied, and that, as the judge correctly identified in his directions as to duress, that the jury thought it a realistic probability that a person of reasonable firmness would have responded to the threats by committing the offence, that there was no opportunity for the defendant to escape from the threats without damage to himself or others by going to the police or some other route which a reasonable person in his position would have taken but he did not take.
33. The appellant's credibility, therefore, was of great importance. The prosecution was able to demonstrate that there was no evidence that he was under any threat when he performed the actions he was observed to take in assisting in the delivery of boxes and opening them. No one was in attendance. There was no evidence of anyone in the area. In that context, had the judge reminded the jury clearly of all the lies told and of all the opportunities to give an account subsequently, which the appellant failed to take, it can only have damaged his case. True it is that he had an explanation, namely that he was frightened, although that was of little weight since Adnan Algimi had fled the country and Mustafa was in custody. We do not think, therefore, in this particular case, that those deficiencies affected the safety of the verdicts.
34. Ground 2 in the appeal was a complaint as to the admission of evidence as to an estate agent's particular in Romford which the co-defendant, Miss Antoniou, relied upon. It was claimed they were found in the glove box in the appellant's car. The point was introduced by Miss Antoniou's counsel because his client said that she had been asked to accept delivery as an innocent dupe at the Fabric Store whilst the appellant waited for the opening of his own shop which he had acquired at Walthamstow. It is difficult, therefore, to see how evidence of an estate agent's particulars in Romford helped. They were certainly not part of the prosecution case. During the trial it emerged that they were in a schedule which purported to be part of an exhibit known as Seyan B. The judge ruled, as he was entitled to do, that fairness to the co-defendant Antoniou demanded admission of that evidence. He permitted a police officer to be called. That officer's notebook referred to Seyan B but did not list its contents. The estate agent's particulars were scheduled as late as 22nd February 2005 during the trial, but Seyan B had been opened and unsealed during the course of the preparation of the trial and no one could actually remember seeing it at the time that the contents of Seyan B were accumulated.
35. There was no reference to this document in the summing-up. There was, however, evidence, late as it came, as to provenance. The defendant did deal with that document, saying that he had no knowledge of it and for all he knew Mustafa would have left it in his glove box. It was highly peripheral. It had no bearing, in our judgment, on the safety of the verdict. But the dispute about the admission of that document, finding, as it did, its way into a schedule very late in the day, leads conveniently to ground 1.
36. No Customs trial worthy of its name exists without a substantial and lengthy dispute about disclosure. The defence knows no better way to rile the prosecution than to press for proper disclosure. Customs officers, all too often preoccupied with the process of catching people and bringing them to justice, lose the will and determination to ensure that full disclosure is achieved. No one knows, and no one most of the time even seems bothered to identify, that mercurial concept of relevance. This case was no exception. Mistakes were made in the disclosure process in which three authorities were involved. It was desultory and late. But it came in the end by which time both sides were thoroughly exasperated. It is difficult enough to defend in a case such as this without being troubled with late disclosure and with schedules which did not properly identify the occasion of scrutiny. Some of the complaints, which Miss Kamill advanced with moderation but with concealed frustration, were no doubt justified, though they were matched by assertions that they were understandable mistakes and irrelevant.
37. We need not judge. They are history. Ground 1 suggests that in the light of that history this court cannot be confident that proper disclosure had taken place. That is not a proper ground for an appeal, absent any material to demonstrate that some undisclosed document might have undermined a strong prosecution or assisted a weak defence. Ground 1 is without foundation. Despite the skill and attractive advocacy of Miss Kamill, nothing said, individually or cumulatively, casts doubt on the safety of this verdict.
38. We turn then to the question of sentence. This appellant was sentenced to 20 years' imprisonment. The judge described him as an organiser, but he was clearly not the controlling mind of a very significant conspiracy in which very large numbers of drugs were imported.
39. The appellant is now 33. We think that the judge, despite the fact that he contested this case with really the only defence that he could muster, namely that of duress, imposed a sentence which was manifestly excessive. We think that an appropriate sentence, having regard to his part in this conspiracy, would have been one of 17 years' imprisonment.
40. The judge made a recommendation of deportation without any reference or examination of the plight of the family, all of whom had acquired similar status as a result of the refugee status of this appellant. In such circumstances, no such recommendation should have been made and we quash it. To that extent the appeal against sentence is allowed.
41. The appeal was heard by us and by Sir Michael Wright whom I am asked to say agrees with the terms of this judgment.