England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
HH Judge Hooton

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/11/2010

Lord Justice Stanley Burnton :

1. Between 9 September and 25 November 2009 at Winchester Crown Court 8 defendants were tried before HH Judge Hooton and a jury on charges relating to the illegal importation of controlled drugs, specifically heroin, diamorphine and cannabis. Those defendants were Khandhakar Thaj Uddin, Juned Ali, Mohammed Ishaque and the present appellants and applicants, Abdellah Dohfi, Shannon Tamiz (aka Miah), Juned Miah. Kamal Hussain and Mohammed Younas.
2. The counts on the indictment were as follows:

i) Count 1: against Uddin: conspiracy between 1 November 2003 and 1 December 2003 to import diamorphine.

ii) Count 2: against Uddin: a similar conspiracy between 1 January 2005 and 6 April 2005.

iii) Count 3: against Uddin and Juned Ali: a similar conspiracy between 1 March 2006 and 31 May 2006

iv) Count 4: against Uddin, Juned Miah, Dhofi and Hussain, a conspiracy between 1 November 2006 and 5 August 2007 to import cannabis.

v) Count 5: against Uddin, Ishaque, Kamal Hussain & Shannon Tamiz: a conspiracy between 1 January and 24 October 2007 to import diamorphine.

vi) Count 6: against Uddin, Juned Miah and Younas: a conspiracy on 1 August 2007 to supply heroin.

vii) Count 7: against Uddin, Younas and Juned Miah: a conspiracy between 1 July and 31 October 2007 to import diamorphine.

3. On 24, 25 and 26 November 2009, the defendants were convicted and sentenced as follows:

i) Khandhakar Thaj Uddin was convicted of Counts 1, 2, 3, 5 and 7 (all conspiracy to import diamorphine), count 4 (conspiracy to import cannabis) and count 6 (conspiracy to supply heroin). He was sentenced to a total of 20 years' imprisonment.

ii) Juned Ali was convicted of count 3 (conspiracy to import diamorphine) and sentenced to 7 years' imprisonment.

iii) Mohammed Ishaque was convicted of count 5 (conspiracy to import diamorphine) and sentenced to 10 years' imprisonment.

iv) Dohfi was convicted on count 4 and sentence to 5 years' imprisonment.

v) Tamiz (also known as Miah) was convicted on count 5 and sentenced to 10 years' imprisonment.

vi) Miah was convicted on counts 7, 6 and 4 and sentenced to 15 years' imprisonment on count 7, 10 years concurrent on count 6 and 8 years concurrent on count 4, a total of 15 years' imprisonment.

vii) Hussain was convicted on counts 5 and 4 and sentenced to 10 years imprisonment on count 5 and 8 years concurrent on count 4. Thus his total sentence was 10 years imprisonment.

viii) Younas was convicted on counts 6 and 7 and sentenced to 10 years imprisonment on each count, concurrent.

In all cases time on remand was ordered to count.

4. We had before us the following appeals and renewed applications for leave to appeal:

i) Dohfi appealed against sentence by leave of the single Judge.

ii) Miah appealed against conviction (limited to one ground) and sentence by leave of the single Judge.

iii) Hussain appealed against conviction by leave of the single Judge.

iv) Tamiz renewed his application for leave to appeal against conviction and sentence.

v) Younas applied for an extension of time (14 days) in which to renew his application for leave to appeal against conviction, following refusal by the single Judge.

5. We dismissed these appeals and refused these renewed applications, and said that we should give our reasons in writing subsequently. These are our reasons.

The appeals of Miah and Hussain against conviction

6. These prosecutions arose from suspicion, in 2006, that Uddin was involved in importations of drugs into the UK from Bangladesh. A bugging device was put into his Mercedes motor vehicle and recordings were made providing evidence that he had been involved in importations going back to 2003 and was planning large-scale future importations of heroin and cannabis.
7. Some of the conversations recorded in the car were live; some were between people sitting in the car and some were on the telephone. Some were in English but most were in Arabic, Bengali or a Bangladeshi dialect known as Syhleti. Those in languages other than English were listened to and translated by 2 translaters, Zakir Hussain and Yousef Hussain.
8. The translations of conversations recorded on 31 July, 1, 2, 3 and 8 August and 2 October, 2007 referred to one of the speakers as "Y". In the conversations, he was sometimes referred to as Ali. Zakir Hussain (interpreter) listened to the tapes of the 31 July, 1, 2 and 8 August and 2 October, 2007 and said that the voice in the recordings to which he attributed the name Ali ('Y') was the same voice. Mrs Yousef Hussain said that the same voice was speaking in recorded conversations on 2 and 10 August. The prosecution case was that Y was Miah.
9. In addition, Zakir Hussain said that the voice of the man referred to as "X", identified by the prosecution as Kamal Hussain, was heard in conversations on 7 June and 23 January.
10. Relying on section 78 of PACE, Miah and Hussain objected to the evidence of Zakir Hussain and of Yousef Hussain, contending that it would be unfair for it to go before the jury, essentially because it was not expert evidence, it was inherently unreliable, there was no reliable contemporaneous record of the interpreters' consideration of the recordings or of their decision-making, and their testimony could not in practice be tested or contradicted. In his ruling on 9 September 2009, the judge rejected these objections and allowed the prosecution to adduce the evidence of the translators.
11. The issue before us is whether the judge was right to permit the prosecution to adduce that evidence of the translators. It is not, and could not be, suggested that the judge's direction to the jury relating to this evidence was in any way defective.
12. The principal authority relied upon by the appellants is the decision of this Court in Flynn and St John [2008] EWCA Crim 970 Before turning in greater detail to the facts of the present case, it is necessary to consider what that case did or did not decide. As in the present case, the disputed evidence in Flynn was of recordings made by a bugging device. In that case, it had been placed in a van used in a robbery. It is summarised in paragraph 8 of the judgment:

"…, the prosecution relied on voice recognition evidence given by four police officers. Their evidence was to the effect that they recognised the voices of Flynn and St John on the covert recording of voices in the sixty minutes before the Sprinter van entered the premises at Cricklewood. The evidence of the police officers was that, having spoken to the two appellants during and after their arrest, they were able to recognise their voices on the recording captured by the covert recording device. The officers had also obtained covertly a sample of each of the appellants' voices in conversations at the police station. Further, the jury had before them two transcripts of the recording taken from the van. One was produced by one of the police officers and the other by Dr Frederika Holmes, an independent forensic consultant. The latter had been instructed on behalf of the prosecution. At trial, counsel on behalf of both appellants objected to the introduction of the voice recognition evidence and the transcripts. The judge ruled both the evidence of the police officers and the transcripts admissible."

13. The Court summarised the expert evidence before it as follows:

16. In general terms the expert evidence before us demonstrates the following:

(1) Identification of a suspect by voice recognition is more difficult than visual identification.

(2) Identification by voice recognition is likely to be more reliable when carried out by experts using acoustic and spectrographic techniques as well as sophisticated auditory techniques, than lay listener identification.

(3) The ability of a lay listener correctly to identify voices is subject to a number of variables. There is at present little research about the effect of variability but the following factors are relevant:

(i) the quality of the recording of the disputed voice or voices;

(ii) the gap in time between the listener hearing the known voice and his attempt to recognise the disputed voice;

(iii) the ability of the individual lay listener to identify voices in general. Research shows that the ability of an individual to identify voices varies from person to person.

(iv) the nature and duration of the speech which is sought to be identified is important. Obviously, some voices are more distinctive than others and the longer the sample of speech the better the prospect of identification.

(v) the greater the familiarity of the listener with the known voice the better his or her chance of accurately identifying a disputed voice.

However, research shows that a confident recognition by a lay listener of a familiar voice may nevertheless be wrong. One study used telephone speech and involved fourteen people representing three generations of the same family being presented with speech recorded over both mobile and land line telephones. The results showed that some listeners produced mis-identifications, failing to identify family members or asserting some recordings did not represent any member of the family. The study used clear recordings of people speaking directly into the telephone.

(4) Dr Holmes states that the crucial difference between a lay listener and expert speech analysis is that the expert is able to draw up an overall profile of the individual's speech patterns, in which the significance of each parameter is assessed individually, backed up with instrumental analysis and reference research. In contrast, the lay listener's response is fundamentally opaque. The lay listener cannot know and has no way of explaining, which aspects of the speaker's speech patterns he is responding to. He also has no way of assessing the significance of individual observed features relative to the overall speech profile. We add, the latter is a difference between visual identification and voice recognition; and the opaque nature of the lay listener's voice recognitions will make it more difficult to challenge the accuracy of their evidence."

14. The Court held that the voice identification evidence should have been excluded by the trial judge. The Court's reasons are set out in paragraphs 48 to 55 of the judgment:

48. It is quite clear that the covert recording of voices in the Sprinter van was poor. It was so poor that Dr Holmes, even using her sophisticated equipment was unable to distinguish between different voices. Comparing her transcript with that of DC Gittings a number of the words which DC Gittings purported to recognise as Flynn's, are not distinguished by Dr Holmes as words. Professor French described the recording as poor and, as already stated, he was not able to rule out the possibility that the voice attributable to St John was either his or not his.

49. So far as the evidence of DC Gittings and DC Fleck is concerned, their familiarity with Flynn's voice was gained from comparatively short periods of time in his company on two days. It was eighteen days before DC Gittings listened to the covert recording and compiled the transcript. In DC Fleck's case, accepting his evidence which is in complete conflict with the Gittings evidence as to when the transcript was made, it was at least nine days after he had last heard Flynn speak before he listened to the covert recording.

50. So far as St John is concerned, the police officers listened to the covert recording very soon after they had been with him for a period of two hours twenty minutes. To that extent they were in a better position than DC Gittings and DC Fleck to identify his voice on the covert recording. However, DC Nicoll and DC Seymour had a limited time to familiarise themselves with St John's voice. Furthermore, the part of the covert recording alleged to be attributable to him lasted only 59 seconds of a poor tape and was of a voice itself said to be communicated to the van via the further distorting medium of a walkie-talkie.

51. There are other considerations which apply to both appellants. We have already noted the two most important factors, namely the limited opportunity for the officers to acquire familiarity with the appellants' voices and secondly, the poor quality of the covert recording. To these we add the following. First, the police officers' purported recognition of the appellants' voices is in marked contrast to the evidence of the two experts who are unable to recognise their voices; in Dr Holmes' case she was unable to identify individual voices. Secondly, nothing is known of the ability of any of the police officers to recognise voices. There is no evidence that any of them had any training in auditory analysis. Thirdly, the identification of the voices was carried out by listening to the covert tape on a standard laptop computer, as opposed to the sophisticated equipment used by the experts. Fourthly, in our judgment, it is significant that DC Gittings' transcript contains words attributed to Flynn which Dr Holmes could not distinguish as words, let alone recognise as attributable to Flynn. Fifthly, the expert evidence shows that lay listeners with considerable familiarity of a voice and listening to a clear recording, can still make mistakes.

52. Taking all these factors into account we conclude that there are powerful factors militating against the admission of the evidence of the police officers in the case of each of the appellants. Such evidence was self-evidently very prejudicial. As the experts point out, there are difficulties in challenging the evidence of lay listeners for the reasons noted earlier in this judgment. In our judgment, the general uncertainties about the evidence of voice recognition by lay listeners are enhanced by the specific facts in the case of each of these appellants. Quite simply, in our opinion, the prejudicial effect of this evidence far outweighed its probative value. Accordingly we conclude that the judge was wrong to rule it admissible.

53. There are other reasons why, in our judgment, the judge ought also to have excluded the evidence under s.78 of PACE. First, in our opinion, when the process of obtaining such evidence is embarked on by police officers it is vital that the process is properly recorded by those officers. The amount of time spent in contact with the defendant will be very relevant to the issue of familiarity. Secondly, the date and time spent by the police officer compiling a transcript of a covert recording must be recorded. If the police officer annotates the transcript with his views as to which person is speaking, that must be noted. Thirdly, before attempting the voice recognition exercise the police officer should not be supplied with a copy of a transcript bearing another officer's annotations of whom he believes is speaking. Any annotated transcript clearly compromises the ability of a subsequent listener to reach an independent opinion. Fourthly, for obvious reasons, it is highly desirable that such a voice recognition exercise should be carried out by someone other than an officer investigating the offence. It is all too easy for an investigating officer wittingly or unwittingly to be affected by knowledge already obtained in the course of the investigation.

54. This case provides an example of why these minimal safeguards should have been observed. No notes were made by any of the police officers of the dates and times when they attempted to recognise the voices on the covert recording from the Sprinter van. There is an important inconsistency in the evidence of DC Gittings and the evidence of DC Fleck. If the former is correct, he did not produce the transcript until 18 May 2006, nine days after DC Fleck said he had the transcript in his possession when he listened to the disputed tape. This is not a minor discrepancy. DC Fleck said the transcript he had on 9 May did not contain DC Gittings' notes in the margin indicating which passages he attributed to Flynn. Yet, DC Gittings said he only produced one copy of the transcript and on it he placed his opinion as to who was speaking. It is agreed there was only one transcript produced and no copies were made.

55. It is not clear if the judge, when he gave his ruling, was aware of this discrepancy. It does not feature in his ruling. However, the discrepancy further hindered the ability of counsel for Flynn to challenge the accuracy of DC Fleck's evidence. This discrepancy and the failure of the officers to record essential details of how and when the transcript was compiled, and the dates when each listened to the tape, coupled with the dangers to the use of voice recognition evidence by lay listeners, are all sufficient in our judgment to make it unfair for the evidence to be admitted. For these reasons we would also have excluded this evidence and in our judgment the judge was wrong not to exclude it under s.78 of PACE.

15. In paragraphs 62 to 64, the Court gave general guidance:

62. As appears from the above we have been dealing in these appeals with issues arising out of voice recognition evidence. Nothing in this judgment should be taken as casting doubt on the admissibility of evidence given by properly qualified experts in this field. On the material before use we think it neither possible nor desirable to go as far as the Northern Ireland Court of Criminal Appeal in O'Doherty which ruled that auditory analysis evidence given by experts in this field was inadmissible unless supported by expert evidence of acoustic analysis. So far as lay listener evidence is concerned, in our opinion, the key to admissibility is the degree of familiarity of the witness with the suspect's voice. Even then the dangers of a mis-identification remain; the more so where the recording of the voice to be identified is poor.

63. The increasing use sought to be made of lay listener evidence from police officers must, in our opinion, be treated with great caution and great care. In our view where the prosecution seek to rely on such evidence it is desirable that an expert should be instructed to give an independent opinion on the validity of such evidence. In addition, as outlined above, great care should be taken by police officers to record the procedures taken by them which form the basis for their evidence. Whether the evidence is sufficiently probative to be admitted will depend very much on the facts of each case.

64. It goes without saying that in all cases in which the prosecution rely on voice recognition evidence, whether lay listener, or expert, or both, the judge must give a very careful direction to the jury warning it of the danger of mistakes in such cases.

16. The facts of the present case differ in important respects from those in Flynn.

i) It is common ground that the recordings in question are of good quality.

ii) The interpreters did not purport to identify the disputed dialogue as that of either of these appellants. Their evidence was that the conversations attributed to Y on a transcript were of the same person, and those attributed to X were of the same person. The prosecution sought to prove who X and Y were by other evidence.

iii) There was adequate material for the interpreters to consider. Zakir Hussain listened to 1240 hours of tape. Mrs Yousef Hussain spent some 580 hours listening to tapes relating to "Ali", said to be Juned Miah. It was common ground that there was adequate material for comparative purposes.

iv) It had been common ground that there was no expert in phonetics who spoke or understood the languages in question. Dr French, the speech recognition expert who had given evidence in Flynn, gave evidence for Miah on the voire dire. Apparently, he had the services of such an expert available, but this had not previously been known.

v) It followed that there was no other means by which the prosecution at trial could have adduced the evidence that the passages attributed to X were of the same person and that those attributed to Y were similarly of another person.

vi) Importantly, voice attributions made by the interpreters in the cases of three other persons had been proved to be correct by admissions by the defendants concerned.

17. There is some substance in the appellants' submission that it was in practice difficult or impractical to cross-examine the interpreters, since all that could be put to them was that they were mistaken. It is true that there was one case of established error on the part of an interpreter. However, on examination this incident does not assist the present appellants. It was put to the interpreter in cross-examination that he had wrongly attributed some dialogue. It was played back in court, and he admitted that he had been wrong. If the passages attributed to these appellants were alleged to have been open to the same criticism, they could have been tested in a similar way. They were not.
18. Furthermore, the interpreters' evidence could have been contradicted. The appellants in their police interviews could have put forward their case, whether alibi or otherwise. They did not do so. They could have given evidence that they had not been and could not have been X or Y, or that some of the dialogue attributed to them was not theirs. They did not do so: they did not give evidence. They too could have instructed interpreters to listen to the tapes and to give their opinions as to whether or not the opinions of Zakir Hussain and Yousef Hussain were correct. They did not do so.
19. Fairness involves consideration of the alternatives open to the prosecution. There were none.
20. We also accept that it would have been better if contemporaneous records had been kept of the interpreters' consideration of the recordings, and of when and in what circumstances they had reached their conclusions, on the lines set out by this Court in Flynn. But the failure to make such records went to the weight of the evidence, not its admissibility.
21. Furthermore, this evidence did not stand alone. Among other evidence, SOCA Officer Paul Bracher observed and videoed Juned Miah at Luton Airport on 4 August 2007. Mr Bracher said that he recognised Mr Miah as being a male he had seen twice before: on 1 and 2 August 2007, getting out of or getting into Uddin's Mercedes around the time of relevant conversations that took place in it. Juned Miah admitted arriving at Luton Airport around 4 am on 4 August 2007 with Hussain, and meeting Dohfi and his son there. At 19:56 the previous evening Uddin, Dohfi and the males alleged to be Miah and Hussain were all inside Uddin's Mercedes. The conversation was in English. It included the statement, alleged to have been made by Juned Miah, that he would be dropped at Luton Airport the following day by his sister and her husband. There was undisputed evidence that Juned Miah and Kamal Hussain arrived at Luton Airport with a male and female who then left in BMW S385 MLP, a car linked to Juned Miah.
22. Hussain was alleged to be the person named as X in two conversations. As in the case of Juned Miah, there was other evidence supporting the attribution of that person as X. Perhaps the most striking example was that the voice attributed to Hussain in the conversation on 23 January 2007 said: "I have a personal problem. I am banned for 6 months … Yes, for driving." Hussain had indeed been disqualified from driving from 21 November 2006 to 20 May 2007.
23. In these circumstances, we do not see that there was any unfairness in the admission of this evidence. Its weight was a matter for the jury, and they were appropriately directed as to the requisite caution. The admission of this evidence being the only extant ground of appeal, it followed that the appeals against conviction of both Juned Miah and Hussain failed.

Younas' application for leave to appeal against conviction

24. On behalf of Younas, Mr Mitchell submitted that his previous acquittal on trial for a charge of conspiracy to import heroin had been wrongly admitted as bad character evidence. It is true that the prosecution did seek to admit this evidence as bad character evidence. However, it was not treated as bad character evidence so far as the jury was concerned. The evidence was admitted as going to the issue whether Younas, was, as he contended, an innocent dupe who did not know that drugs were involved. Giving his ruling, the judge said:

[The evidence of his acquittal] goes right to the heart of the question, what was his state of mind in this transaction bearing in mind that background? It is highly relevant and it could be probative. It is not evidence of bad character in my view, in spite of what Mr Mitchell says in his extensive submissions and very well thought out arguments. It is simply explanatory of the defendant's previous experience or otherwise of association with persons said to be intent on bringing heroin into this country, and my view is that this evidence is not unfair.

The Crown has to accept first of all the fact of the defendant's acquittal. They cannot go behind it and do not seek so to do. This is not, to use Mr Mitchell's phrase, a tainted acquittal, its only relevance is to the defendant Mohammed Younas' state of mind when he did as alleged what he is said to have done.

25. Bad character evidence is "evidence of, or of a disposition towards, misconduct": section 98 of the Criminal Justice Act 2003. Section 112 defines "misconduct" as "the commission of a criminal offence or other reprehensible behaviour". An acquittal is not evidence of misconduct, but the reverse, unless it is suggested that the acquittal was mistaken. That was not suggested here, as the judge made clear in his above ruling and when summing up to the jury. He directed them as follows:

Now evidence has been given, or allowed to be given I should say, about Mohammed Younas' acquittal after a trial on a charge of conspiracy to import heroin in 2005 in which his defence was that he did not know that the furniture in which the drugs were found had contained, or was intended to contain, heroin. And a jury found him not guilty on the 12th October 2006. It cannot be stated clearly enough he was acquitted. He is, as I have already directed you, a man of hitherto good character and you must follow my directions about all that that entails.

The sole reason why the fact of his acquittal has been allowed into the picture that presents itself in this trial is that since his defence is, to paraphrase, "I am an innocent dupe in these events," the jury is entitled to consider all the circumstances that exist which are relevant to a decision as to how much or how little he could be expected to know about what was going on during the period in which he is said to be part of the conspiracies in Count 6 and 7. The prosecution cannot, and do not, go behind his acquittal. He is, in effect, innocent of any suggestion that he was involved in that operation in 2005. The question is should he have been alerted in some way, bearing in mind the background of that case, to anything that deserves suspicious scrutiny that occurred during the currency of Count 6 and 7? Whether you consider that he should have been put on enquiry when involved in these events or not will have to depend, for example, on what you find with regard to his mental abilities, apart from anything else, and what he actually did in this case in relation to the others in Counts 6 and 7. What you must not and cannot do is say, "There's no smoke without fire," and so on. That would be quite wrong and contrary to the rules applying to the fair conduct of a criminal trial. …

26. We can see no arguable error in the judge's approach, in his decision or in his summing up. For these reasons, Younas' renewed application was refused.

The renewed applications of Tamiz for leave to appeal against conviction and sentence

27. On behalf of Tamiz, Miss Mansour submitted that the judge had wrongly allowed the prosecution to adduce evidence that Kamal Uddin, a man whose name was found in Tamiz's diary, had convictions for dealing in heroin. The prosecution case was that the diary contained details of Tamiz's dealings in drugs. His case was that the entries were innocent, and concerned building work in Bangladesh. The prosecution's case was that Kamal Uddin's details were in the diary because he was a heroin dealer and Tamiz knew that and, in fact, was in contact with him because of that fact. Kamal Uddin's conviction was clearly relevant and probative to the issue whether the diary did contain details of drug dealing, and was rightly admitted. It followed that the renewed application for leave to appeal against conviction had to be refused.
28. On sentence, Miss Mansoor submitted that the conversations attributed to Tamiz at their highest could be said to relate to modest amounts of diamorphine. Sentencing him, the judge said this:

Shannon Tamiz, it is said on your behalf you were simply an addict and you were duped into this by Uddin, but I seem to remember conversations about you telling Uddin that you had places to store it. I seem to remember your evidence when you went into the witness box and gave a fatuous explanation about all those lists, saying they were the prices of building debts, when it was obvious to anybody with half a brain that they were dealers' lists. You were dealing, Uddin knew you were a dealer, and that is why he approached you, that is why you engaged in these conversations.

Miss Mansoor was unable to show that this summary by the judge was not based on the evidence at trial. The transcripts of the bugged conversations do refer to his storing heroin or diamorphine. The sentence of 10 years imprisonment was appropriate to his dealing. Accordingly, his application in respect of his sentence was refused.

Dohfi's appeal against sentence

29. Dohfi was a man of good character. He initially avoided falling in with the drug dealing plans of the principal conspirator, Uddin. Sentencing Dohfi, the judge said:

Abdellah Dhofi, you are in a different category because I only deal with you with respect to Count 4, and it is cannabis. I say only cannabis, but the fact is you were the contact man, you knew your way around Morocco obviously, and you could speak the language and you could make the introductions, and you extremely foolishly fell in with this plan. You may or may not have fobbed off Mr Uddin before you went but in the end you got the aeroplane tickets and you got on that plane and off you went to take your part in this plan. You could not resist it. You had led a blameless life until then and you found yourself caught up in this.

30. Again, there is no quarrel with this summary. It was Dohfi who had contacts in Morocco, who could provide cannabis for importation by Uddin and his associates. The importation that was planned was to be of substantial quantities, on a commercial scale. The judge took into account Dhofi's good character and his initial resistance to involvement. The sentence of 5 years' imprisonment was within the appropriate bracket, and could not be criticised as excessive.
31. For these reasons, Dohfi's appeal was dismissed.