England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Thursday, 29 June 2017

1. MR JUSTICE HOLROYDE: On 21st June 2016 in the Crown Court at Manchester this applicant and his co-accused, Barack Gurgur, were convicted of an offence of conspiracy to contravene section 170 of the Customs and Excise Management Act 1979. At a later date each of them was sentenced by the learned trial judge, His Honour Judge Stockdale QC (the Recorder of Manchester) to 16 years' imprisonment.
2. The applicant applies for leave to appeal against his conviction. The application was refused by the single judge, Cheema-Grubb J, for reasons which she very clearly stated in her original decision. The applicant now renews his application to the Full Court.
3. For present purposes the relevant facts can be summarised very briefly. On 26th June 2015 a heavy goods vehicle, which had travelled from Europe, arrived at the Lymm Services on the M6 motorway. It was carrying a concealed load of more than 100 kilograms of heroin with a street value of many millions of pounds.
4. In a well-organised operation, a number of customers then arrived in succession at the services, presented tokens to prove their identity and collected parcels of the drugs. Among those customers were the applicant and Gurgur. They had driven from London and they collected more than 20 kilograms of heroin packed into a suitcase which was moved from the lorry to the boot of their car. In the course of the day relevant phone calls, on which the prosecution rely, had been made by one or both of them, using a particular mobile phone, which they disposed of in the very short period between their collection of the drugs and their apprehension by the police as they began their return journey.
5. When he was first questioned the applicant made "no comment". At trial he gave evidence to the effect that he had been led to believe by Gurgur that they were travelling north in order to purchase or one more bullet proof vests, which Gurgur needed because he was in fear of being attacked by members of a Turkish gang in North London, referred to as "the Tottenham Boys". The applicant denied that he knew anything about any drugs, until their car was stopped and the police opened the suitcase which had been placed into the boot.
6. Gurgur, for his part, also denied that he knew anything about any drugs or had any involvement in the conspiracy. His evidence, in contrast to that of the applicant, was that the journey to Cheshire was nothing to do with purchasing bullet proof vests: rather, he said, he had been invited to accompany his friend, the applicant, who had to travel north in order to pick up a member of the applicant's family who was going to visit London. Mr Gurgur added, as part of his evidence, that if he had wanted to buy a bullet proof vest he would have had no need to go all the way to Cheshire to do it and he would have taken the obvious precaution of trying it on before parting with any money. Thus, each of the defendants in his evidence accused the other of lying. The jury, by their verdicts, plainly disbelieved both of them and convicted both of being knowing participants in the conspiracy to import the heroin.
7. The grounds of appeal drafted by counsel, but not presented by him at this stage of the proceedings, challenge rulings made by the learned judge as to disclosure and contend that the prosecution had failed in its duty of disclosure.
8. In a nutshell, counsel at the trial wished to support the applicant's evidence by adducing other evidence probative of the existence and violent activities of The Tottenham Boys gang, and also to support the assertion that Gurgur was at risk from that gang. Counsel made a number of applications and requests to the prosecution, seeking information about a number of named men connected with the Tottenham Boys gang, about information and intelligence in the possession of the police and about the sources of that intelligence. These various requests and applications were said to have been made with a view to the applicant being able not only to give evidence himself about the threat to Gurgur, and the consequent plausibility of the journey to Cheshire being intended for the purchase of bullet proof vests, but also to adduce independent evidence supportive of his account.
9. In response to the requests the prosecution did make some disclosure, but counsel for the applicant contended that it was inadequate and sought rulings from the judge. He also challenged a ruling made by the judge, upholding a claim by the prosecution that certain material should be exempted from disclosure on grounds of public interest immunity.
10. In a careful written ruling the learned judge reminded himself of the relevant principles stated by the House of Lords in the case of R v H [2004] 2 AC 134. He reviewed his PII ruling as the applicant had asked him to do but maintained his conclusion that no further disclosure was required of the matters which he had considered in that context. He noted that the prosecution in fulfilment of their duty of disclosure were willing to make certain admissions which would assist the applicant to advance his case about the Tottenham Boys gang before the jury. The judge, having considered the position, concluded that the prosecution were not required to make any further disclosure.
11. We note that Gurgur, through his counsel, had indicated that he would not be willing to join in making all of the admissions which were proposed as between the prosecution and this applicant. But, as the single judge pointed out when refusing leave on the papers, that was not an insuperable obstacle to the applicant putting the content of those admissions before the jury. Moreover, the applicant of course had the advantage that when it came to presenting his case and giving his evidence, the prosecution for their part were not disputing the relevant matters about which he testified.
12. Those being the circumstances giving rise to this renewed application, each member of this court has considered the grounds of appeal afresh. Having done so, we unhesitatingly reach the same conclusions as did the learned single judge. The applicant was perfectly well able to present his defence and to support it with those matters which were admitted by the prosecution. In our judgment, he was not unfairly disadvantaged by any lack of further disclosure. There is, in our judgment, no basis on which it could be argued that the disclosure was either inadequate or unfair, or on which it could be argued that the learned judge made any error of law in his ruling. There is, we conclude, nothing in the grounds of appeal which casts any doubt on the safety of the applicant's conviction.
13. We observe that the evidence against him was very strong, even before he and Gurgur began to blame one another and accuse each other of lying. The evidence as a whole pointed the jury very clearly to an inference that both men were knowing participants in the conspiracy.
14. This renewed application accordingly fails and is dismissed for the reasons which we have briefly stated and which are, in essence, those which were explained to the applicant in writing by Cheema-Grubb J.
15. The single judge's decision and reasons were notified to the applicant on the standard form used for this purpose which includes an explicit warning that if the application is renewed:

"The Full Court may make a loss of time order, if the application is considered to be wholly without merit, even if it is supported by your legal advisers. The court will certainly consider doing so if the judge's initials appear in this box."

16. The single judge had not initialled the box, but as the form makes clear that is not a bar to the full court considering whether to exercise its power to make a loss of time order. We have no doubt that this renewed application is wholly without merit. It is not made by counsel who drafted the original written grounds, so the applicant cannot claim that he has the support of his legal advisers. He has made no attempt whatsoever to address the reasons given by the single judge for refusing leave, or to advance reasons why it might be argued that she was wrong to do so.
17. Given the issues raised by the case and the volume of paperwork, a considerable amount of time has been expended by the court and by the court's officials in preparing and listing this application for today's hearing. The expenditure of that time in considering this wholly unmeritorious application has inevitably had the effect that other more deserving cases have thereby been delayed.
18. In those circumstances, this is, in our judgment, a proper case in which to make a loss of time order. We direct that 42 days of the time which the applicant has spent in custody to date should not count towards his sentence.