England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL ( CRIM INAL DIVISION)
ON APPEAL FROM THE CROWN COURT LUTON
HHJ Me nsah
T20147249

		Ro ya l Co urts o f Justice Stra nd, Lo ndo n, WC2A 2 LL
		: 23/03 /2018

LADY JUSTICE THIRLWALL :

1. On 10 March 2015 after a trial in the Crown Court at Luton the appellant was convicted of Conspiracy to Contravene section 170 of the Customs and Excise Management Act 1979 (importation of diamorphine) and Conspiracy to Supply a Controlled Drug of class A (diamorphine). He was sentenced to 19 years' imprisonment concurrent on each count.
2. This is his appeal against conviction which he brings by leave of the full court. He also renews his application for an extension of time of one year in which to seek leave to appeal against sentence after refusal by the single judge.
3. The case concerns the importation of 230kg heroin with a street value of over £37m. It was hidden in a Jaguar motor car exported from Pakistan on the container ship Surabaya which arrived at Felixstowe on 1 December 2013. It was the prosecution case that the appellant, who ran a car sales business in Ilford, was closely involved in the arrangements to move the car so as to remove the heroin from it. The whole operation was covertly observed by officers of the National Crime Agency. The car and heroin were recovered.
4. In 2014 three alleged co conspirators were tried at Luton Crown Court: Noman Qureshi, Israr Khan and Mohammed Safder. All faced the same charges as the appellant. Qureshi and Khan were convicted. Safder, who worked for the appellant from time to time, was acquitted.

FACTS

5. The exportation of the vehicle had been arranged in Pakistan by Zohaib Khuwaja in November 2013. According to the accompanying paperwork it was being shipped for repair in the United Kingdom. The Jaguar was badly damaged, it had no number plates and was unfit to drive. Khuwaja had arranged the shipment of similar Jaguar vehicles to the UK on two previous occasions, in March and August 2013. In each case delivery had been to a legitimate vehicle repair business. The cars were repaired and returned to Pakistan where they were not collected from the port. It was the prosecution case that either these were dummy runs to test the system or they were successful episodes of drugs importation.
6. Khuwaja used the same legitimate UK company, Express Export Services, to arrange the importation of the car on each of the three occasions. The Jaguar in this case was due to be delivered to a legitimate Jaguar repair business in North London, Jaguar North One, on Friday 6 December. It cleared customs on 5 December and Express Export Services arranged for it to be held in a warehouse for collection the next day. Khuwaja had arranged for it to be collected on the morning of the 6th and driven on a low loader to North London. He had made the latter arrangement with Mr Zahir Ali who owned a vehicle recovery company, VRSH. Khuwaja emailed the repairers to say that the vehicle was still 300 miles away and could not be delivered until Monday 9th. This was untrue. He forged a letter from Express Export Services to VRSH to the effect that the repairers were overbooked and could not take delivery of the car until Monday. This also was untrue. The purpose of the changed arrangements was to allow time for the heroin to be removed from the Jaguar.
7. Mr Trupesh Parekh who worked for VRSH had been instructed by his employer, Mr Ali, to collect the vehicle from Felixstowe and drive it to North London. As he drove to Felixstowe he received a number of calls from Mr Khuwaja who was checking on his progress. While he awaited clearance to leave the port on the morning of 6 December his employer rang and told him that there had been a change of plan and that instead of delivering the Jaguar to London he was to take it to VRSH's yard in Hayes. Mr Parekh loaded the vehicle onto the low loader at the port and later delivered it to the premises of VRSH in Hayes.
8. During the course of 6 December 2013 Qureshi was travelling south down the M1 from Bradford. He collected Khan, a well known drug trafficker, in Luton and they drove in Khan's car to East London where Qureshi had arranged to meet the appellant. On the way to London Qureshi was in frequent telephone contact with Khuwaja in Pakistan. Interspersed with the calls to Pakistan were calls between Qureshi and the appellant. It was the prosecution case that the purpose of the calls to the appellant and of the meeting was to arrange the movement of the Jaguar and the removal of the heroin.
9. The appellant arrived at the meeting point on a service road outside the Holiday Inn at Ilford. Khan and Qureshi arrived in a Vauxhall Zafira, driven by Khan. Qureshi got out of the car and spoke to the appellant. Safder, an employee of the appellant, arrived later in a VW Golf (owned and insured by the appellant's business) and joined the meeting. The meeting was observed by officers of the National Crime Agency (NCA). Qureshi, the appellant and Safder had a conversation. The appellant drove away and very shortly afterwards, at 6:57 pm Safder telephoned a local low loader driver, Mr Naseem Mohammed of NV motor group. It was the prosecution case that Safder made this call to see whether Mohammed was available to move the Jaguar from Hayes (where Mr Parekh had left it) to Ilford where the appellant's business premises were situated. The purpose of the move was to facilitate the removal of the heroin before the vehicle was taken north. In the event Mohammed was not free so arrangements were made, through Mr Ali, for Mr Parekh, to move the Jaguar from Hayes to Ley Street, Ilford where the appellant operated his business, One-Stop Garage Services.
10. Qureshi and Khan were observed driving around the area and then parking near the appellant's premises on Ley Street, Ilford, awaiting the delivery of the Jaguar. Shortly before Mr Parekh arrived in Ilford he received a telephone call from Qureshi who told him that the car must now be delivered to Dagenham. The new address was on Church Lane where Safder's brother had a business, Star Garages. It was not clear why this further change of plan was required. In any event Qureshi and Khan were seen by NCA officers in Dagenham, as was Safder.
11. Parekh arrived in the low loader at the Star Garage shortly after midnight. Qureshi and Khan were waiting for him. The Golf which Safder had been driving was parked on the forecourt of a Car Wash outside Star Garage. It was driven off the forecourt to make way for the low loader. While this was going on Qureshi received two calls on his mobile from someone he referred to as his boss. These calls came from a Pakistan mobile phone. Something had occurred to cause alarm to Qureshi and Khan. Whatever it was they told Parekh that their boss had had an accident and they had to leave immediately. They then drove away at speed in the Golf. They transferred a short distance away into the Zafira and set off back to Luton. Parekh waited for Qureshi and Khan to return to Star Garage but they did not do so. In the end he telephoned his own boss and also the customer Khuwaja. The Jaguar remained on the garage forecourt overnight unattended. In the early hours of 7 December NCA officers seized the Jaguar, took it to Harwich where it was x-rayed and searched. They found the 316 taped packages.
12. Mr Parekh was arrested on 8 December. He was later eliminated from the police enquiries. Mr Safder was arrested on the morning of 13 February 2014, the appellant was arrested the same day at his home in Ilford. His home was searched. Several mobile phones were recovered. One important mobile phone was not recovered. Its number ended in 929 and it had received a number of calls from Qureshi in early December 2013.
13. The appellant was interviewed under caution. He made no comment in his first interview on 13 February. In his second interview he replied no comment to all questions but provided a signed written statement. He denied having any involvement in the importation and supply of drugs. He said he had a legitimate income from his car repair and sales business. In his third interview he identified items that had been recovered from his home during the search, including his mobile phone. He was interviewed again in September 2014, each time he replied no comment to the questions. He provided a further signed written statement. He said that he knew Qureshi and that Safder worked for him as a motor mechanic. He confirmed that he had insured the VW Golf that had been used on the night of 6 December 2013. He admitted that he had met the others near the Holiday Inn. He believed that the meeting was in relation to the purchase of a car from him. He described himself as a motor dealer and a mechanic. At a hearing in November 2014 when the police were able to prove that he had used the 929 phone the appellant admitted that it was his phone and that he had used it during December 2015.
14. Qureshi, Khan and Safder were tried some months before the appellant, to comply with the custody time limits in their cases. Qureshi and Khan were both convicted of the same offences as the appellant. Safder was acquitted. It was his case that he was an innocent dupe who had gone along to the meeting that evening because the appellant, his boss, had asked him to. He said (and this was the appellant's case also) that he had telephoned about a low loader during the meeting because the appellant's business had four vehicles to transport the next day as part of the appellant's legitimate business and they only had one low loader. It was nothing to do with the Jaguar or the heroin.

The appellant's representation at trial

15. The appellant instructed solicitors, Messrs Noble and Co. Mr Safder spoke very highly of the appellant of Mr Smith QC who had represented him at trial. The appellant directed his solicitors to instruct Mr Smith which they were content to do, having briefed him on other occasions. Mr Smith was instructed in addition to Mr Selby who was already retained.

The evidence

16. The evidence against the appellant in summary was this:-

The frequent calls between him and Qureshi during the course of the 6 December. During the same period, Qureshi was making frequent calls to Pakistan. In the context of what happened next there was an overwhelming inference that the calls to the appellant were related to the calls to Pakistan (which were obviously about the heroin in the Jaguar).

The appellant's assertion that he believed that Qureshi was coming from Bradford in the evening to look at cars to buy was inherently unlikely.

The fact that he got rid of the phone he had used to speak to Qureshi during December 2013. It was an unregistered pay as you go phone on which the only calls were to Qureshi. He used his other phone to contact all other people. The fact that he did not mention this phone until the police could prove he had it in his possession told against him.

The fact that at one stage in proceedings (and after the meeting) the Jaguar was to be taken to Ley Street, Ilford where his business premises were.

The fact that Safder had telephoned Naseem Mohammed, a low loader owner. This was obviously with a view to having the Jaguar collected.

The context of his meeting with Qureshi and the inherent unlikelihood of his account or any innocent explanation.

The fact that Qureshi and Khan drove away in the Golf.

The adverse inferences to be drawn from the no comment interviews.

17. It was the appellant's case that he knew nothing of the conspiracy at all. He gave evidence to that effect. He said that until the day of the meeting he had not previously met Qureshi who telephoned him for the first time on the evening of 4 December 2013, nor had he heard of him. He believed that Qureshi had been given his number by a friend. Q ureshi wanted to buy cars from the appellant. He said he would phone again in a couple of days when he would be in London. Qureshi rang him several times on the afternoon of 4 December. The appellant had no idea that Qureshi was communicating with Pakistan at the same time. The calls between him and Qureshi were about cars. The arrangement was for Qureshi to come to his premises but Qureshi was running late and that was why the meeting was arranged near the Holiday Inn. The appellant rang Safder to ask him to join him and Qureshi and then to take Qureshi to look at cars. The appellant was first at the meeting point, followed by Qureshi, followed by Safder who arrived in a Golf motor car which belonged to the business. The conversation was about cars. The appellant left the meeting first, two minutes before Safder telephoned Naseem Mohammed about obtaining a low loader. That call was necessary, he said, because they had four cars lined up for their VOSA check (now VRC) and needed a loader in addition to the one owned by his business. A document from DVLA proved that four cars were to be brought in the next day. After he had left the meeting Qureshi had telephoned him at 19.01 and 19.11. On one of those occasions, he said, Qureshi mentioned he had a non runner for repair and he had referred him on to Safder. We shall return to that evidence later in the judgment. Safder had sold the Golf to Qureshi and Khan that evening but they had not yet paid for it. This was to happen later.
18. Until 6 December the appellant had used the 929 phone to ring friends and family in Pakistan. It was not, as the prosecution alleged, a phone used only for criminal activity (referred to at trial as a dirty phone). He had topped it up with a payment card in his own name. He got rid of it at some point when it stopped working.
19. At an early stage in his evidence the appellant gave the jury the details of his criminal record. Later on, after an intervention from the prosecution in the absence of the jury, he informed them that he was currently awaiting trial for handling stolen goods. He had never been involved with drugs.
20. Mr Safder was called to give evidence in support of the appellant's account. He was cross examined on a number of matters, including the evidence he had given about the appellant at his own trial. In due course the jury convicted.

The Grounds of Appeal

21. All three grounds of appeal derive from counsel's conduct of the defence case.

Ground 1

Counsel's decision to call Mr Mohammed Safder was one which no competent counsel could have taken. His evidence was, it is said, highly damaging to the appellant's case. The appellant had accepted Mr Smith's advice to call Mr Safder in ignorance of his evidence at trial.

Ground 2

Counsel failed to prevent the judge directing the jury that they could draw an adverse inference against the appellant from the fact that he had not referred in his defence statement to the fact that Qureshi had said to him on the telephone that he had a non runner. This information was in his original proof of evidence and prosecuting counsel should have been made aware of that. These had always been his instructions so that no unfair point was taken against him and no direction given about adverse inference.

Ground 3

Counsel led the appellant's previous convictions before the jury without explaining to him that he had a choice as to whether such evidence was introduced. The convictions and the fact that he was awaiting trial on a count of handling stolen motor parts were damaging to the appellant's credibility as a witness. There was nothing to be gained from putting them in evidence and it should not have been done. The trial judge erroneously said in her summing up that the prosecution were relying on the convictions as evidence of bad character. She corrected this and then directed the jury appropriately. In addition a police officer mentioned before the jury the fact that the appellant was facing trial for an offence of handling stolen motor parts. This, together with the fact of the convictions was damaging to the appellant's credibility.

22. The appellant waived privilege and his solicitors wrote to counsel and trial solicitors setting out the complaints made about their conduct. Both counsel and the solicitor responded in writing. The solicitor was not required to give evidence before us. We shall deal with the grounds in the order of events at trial.

The available documentation

23. Mr Smith told the court that it was his practice at the time to return the brief with all the papers at the conclusion of the case. He normally retained his own notebooks but he and his clerks had been unable to find the notebooks relevant to this case. Some electronic notes were available, which were useful and were before the court. No notes of conferences were produced by the solicitors. Mr Selby produced relevant electronic notes and diary entries.
24. It is convenient to deal with the Grounds in the order of events at the trial.

Ground 3

Evidence of the appellant's convictions

25. The appellant says that he did not know he had a choice about whether the jury should be informed about his convictions. Counsel are satisfied that he did know. We are satisfied that the question of whether or not to adduce the convictions was discussed in conference. We think it very likely, having heard the evidence, that the appellant did know that he had a choice in the matter but was guided by the advice of counsel. We note that at the end of the statement prepared for these proceedings dated 5 April 2016 he wrote this, "Mr Smith said that I should trust him. He said that I would not want him interfering if I was repairing his car and so too I should not interfere in the preparation of my defence as he was the expert." This is very likely to be true. It neatly conveys the relationship between the appellant, who clearly had views, and his counsel who had expertise. We have seen the appellant. He was not diffident and we have no doubt that during his trial he felt able to challenge his counsel. That said he accepted that leading counsel could be trusted to get on with the job in hand.
26. We are quite satisfied that the appellant accepted the advice he was given by his counsel, as he was entitled to do. The issue for us is whether the advice to adduce evidence of his previous convictions was outside the range of conduct of competent counsel, and, if so, whether it leads (on its own or in combination with other failings) to the conclusion that the convictions are unsafe.
27. Mr Blaxland submits that the references to the appellant's convictions taken with the outstanding charge for handling stolen goods were damaging to the appellant's credibility and should not have been adduced. The convictions ran from 1996 to 1999. There was theft, taking a motor vehicle without consent, driving whilst disqualified, handling and possession of an offensive weapon, there were other offences taken into consideration. The appellant told the jury of the various sentences which included 4 months' imprisonment in 1998. Towards the end of his evidence, after an intervention from the prosecution, the appellant also told the jury that he was awaiting trial in respect of handling stolen motor parts, an allegation he denied. During the prosecution case a police officer had referred to that matter and was roundly criticised by both counsel and the judge for having done so. We do not think that adds anything to this ground.
28. The purpose of adducing the convictions was two- fold: first, to demonstrate to the jury that the appellant was being candid. Nothing was being hidden from them. Thus, his credibility would be bolstered. Second, to make the very powerful point that his previous offending was relatively low level and nothing like as serious as the offences with which he was charged.
29. Counsel had to balance the effect upon the jury of knowing the appellant had previously been dishonest with the knowledge that the offences on the indictment were strikingly more serious than anything in his record and of a wholly different nature. In short they were, for him, out of character.
30. We are quite satisfied that the decision to put the appellant's previous convictions before the jury was one which many barristers would have taken. It was not incompetent. The judge's confusion as to the reason the evidence was before the jury was quickly remedied. There is nothing in this ground.

Ground 2

The use of the defence statement

31. There was no reference in the defence statement dated 29 January 2015 to the fact that during one of the telephone conversations after 7pm Qureshi had telephoned the appellant to ask whether he would be able to repair his "non-runner". Prosecuting counsel cross examined the appellant about it and suggested that the reason it was not included in the defence statement was that the appellant was making up his story as he went along. The appellant told the jury that he had been saying this to his solicitors (ie that Qureshi had a non runner for repair) "since September". During the summing up the judge directed the jury that they were entitled to draw an adverse inference against the appellant on the basis of a difference or incons istency between his evidence and the content of his defence statement.
32. In fact in one of his proofs of evidence, drafted on 2 December 2014, the appellant said that Qureshi had told him he had a non runner for repair. The proof which was directed to the calls on the 929 phone reads as follows
    (140) 06.12.13 @19.11.10 (44secs)
    I remember that Qureshi called me…. "I've got a non-runner that needs repairing. If I get the car dropped off at your place, I can arrange to get it picked up tomorrow. After he asked me his, I remembered the cars ….were in the unit at the front. I didn't really want to move those cars out as they were without tax. So I said to him to sort it out with Bob [Safder] as, in all honesty, I did not want to return back to the unit to move the cars and if Bob thought he could be bothered to move them he could. So I just left the decision to Bob."
33. Mr Blaxland argues that Mr Smith or Mr Selby should have told Mr Aspden that the omission of that information from the defence statement was an error and that the appellant's instructions had always been that Qureshi had told him that he had a 'non runner'. In those circumstances Mr Aspden could not have cross examined on the omission from the statement and no adverse inference would have been open to the jury. Neither of those propositions is controversial.
34. The issue was drawn to the attention of both counsel in the course of the preparations for these proceedings. Mr Smith replied to the complaint about this topic in trenchant terms:

"the final issue raised in your second letter dated 21 March was solely caused by Mr Sami, who, during his evidence, said that Mr Qureshi told him that he had a non- runner which needed to be repaired. Mr Sami had never mentioned this before to his lawyers or apparently to his family who were equally stunned as we discussed the then recent evidential bombshell as we walked down the stairs during the short adjournment. It is simply untrue for Mr Sami to now state that he provided instructions to this effect prior to the service of his defence statement."

35. The proof to which we have referred was then provided to leading counsel. Having considered it he accepted that those instructions had been given but said, in an email dated 6 April 2017:

'we [he was there speaking for himself and Mr Selby] believe that prior to entering the witness box, and during conferences with both counsel during the trial, Mr Sami gave instructions which effectively deleted reference to the 'non-runner' … We couldn't really [re examine] on it because we knew his instructions/proof had changed.'

36. We should observe that Mr Smith's initial response to the appellant's complaint was inaccurate and cavalier. It was written without reference to any of the case papers (some of which were available to Mr Smith in electronic form and a cursory glance would have revealed his error). It was written in a hurry, early in the morning, during the course of another trial, depending on memory alone. We understand the pressures on busy leading counsel but this was an important matter which demanded his full attention, as he acknowledged before us. If more time were needed he should have sought it. Lack of care in his responses has rendered him open to very serious legitimate criticism.

The defence statement

37. Mr Selby saw the appellant in conference and was responsible for drafting the defence statement. He said, and was not challenged about this, that the appellant's instructions about the contents of the various telephone calls were very fluid. We understand that to mean that the appellant's instructions about the phone calls kept changing (something that Mr Smith also experienced as set out later in the judgment) Mr Selby therefore considered it appropriate to keep the defence statement as general as possible. It is dated 29 January 2015 and its substance is only 16 lines long. There is no complaint about that approach or about the omission of the reference to the non- runner. The complaint is about the failure to tell the prosecution at trial that the appellant had always said there had been a conversation with Qureshi about the non- runner.
38. Section 6A of the CPIA requires, at (c), that a defendant "sets out particulars of the matters of fact on which you intend to rely for the purposes of your defence." Had it been the appellant's instructions at the time of the drafting of the defence statement that Qureshi had mentioned a non-runner that evening (after the appellant had left the meeting) then that fact should have been included in the statement. It was not, notwithstanding the contents of the proof of evidence to which we have referred. It is not open to a defendant to omit from his defence statement matters about which he has been inconsistent to avoid hostages to fortune and then to complain that he had mentioned a particular fact at an earlier stage. If a matter of fact is omitted in error and instructions have been consistent throughout (as the appellant says happened here) then prosecuting counsel should be informed and the defence statement amended.
39. There is a good example of the latter process in this case. Mr Selby emailed Mr Smith on Friday, 20 February 2015. He had seen the appellant in conference the previous day. Several points had arisen, including the fact that the appellant could provide no further information about the disposal of the 929 phone (his early proofs suggested he had accidentally dropped it in water on the 6 December and then disposed of it). Mr Selby also wrote "The DCS (defence case statement) needs amending – he never met Israr Khan"
40. During the course of the trial, defence counsel told Mr Aspden that there was an error in the defence statement and he agreed, quite properly, to take no point on it. The statement was amended during the trial. That counsel were prepared to amend errors is beyond doubt.
41. The issue of fact for this court is what were the appellant's instructions at the time he went into the witness box. It is clear from the notes that Mr Smith was using to prepare for examination in chief that there had been discussions before trial about a call from Qureshi about the non starter/non-runner. We say that because there is a specific question which, presumably Mr Smith intended to ask, which was "Did you mention the non starter to Mr Safder". The note in which this appears is dated 8 January 2015 but it is not clear when annotations were made on it. It is likely that they were made close to trial. Both counsel gave evidence that the document was being used during preparations for trial. Mr Smith had a final, hard copy, annotated version which he used as an aide memoire during the appellant's evidence. It is most unfortunate that this has not been found.
42. Mr Smith and Mr Selby were firm in their evidence that when Mr Sami referred to the conversation with Mr Qureshi about a non-runner and a Jaguar in particular (the make of car not having previously appeared in any document) they were taken aback. Both referred to the surprise expressed by the appellant's family and his sister in partic ular. This was not challenged. The transcript of the evidence in chief supports the evidence about counsel being surprised. The appellant was asked by Mr Smith about two calls from Qureshi at 19.01 and 19.11 on the evening of 6 December. He replied "I can't you know, exactly remember exactly what was said, but in a call then he said to me he had some car that was coming down which was a non-running car. If I could have a look at it or if he could get it dropped at my garage…"
    Mr Smith asked him to pause [ostensibly because he had taken the evidence too fast]. After the pause Mr Smith asked the judge, "Can I be so rude as to ask your honour what your note was to that." The judge set out the content of her note and the appellant then said, "Yeah, I – I can't really remember exactly what it was. I can't remember if he said, "If you could have a look at it," or if he could get it dropped off at my garage for a night, or something, I can't remember. It's something on them type of grounds."
    Mr Smith asked "Did he mention what type of non-running car"?
    A "No, he didn't say what car it was. No, not at all".
43. The appellant then went on to say he thought he had said that Qureshi should speak to Safder about the non-runner. "I had to try and sell him a car, not to repair his car, so I told him to speak to Safder." He didn't say anything to Mr Safder about the non- runner that night, he said. He next spoke to him the following morning when Safder told him that he had sold the Golf motor car to the men but they had not yet paid for it. They had told Safder that they had a car that needed to be repaired so he had taken them to his brother's garage, which is a Jaguar Specialist. It was the evidence of both Mr Smith and Mr Selby that the appellant had previously given instructions that he had first heard about the non-runner from Safder the following morning. That is what they were expecting him to say.
44. The appellant does not accept Mr Smith's assertion that he had changed his instructions about speaking to Qureshi about the non-runner. There was a straight conflict of evidence.
45. Before the jury the appellant said that he had told his solicitor about the non-runner "since September'. There was no evidence in support of this assertion and it was not until a hearing on 21 November that he admitted that the 929 phone to which the calls from Qureshi had come, had been in his possession. He did this after a conference at court with Mr Smith. In the light of the evidence an admission at that stage was inevitable.
46. In the statement he submitted in support of his appeal on 5 April 2016, the appellant asserts "A defence statement was put to me in cross-examination. Prior to the trial, I had not seen this document let alone approved the same." Leaving aside the archaic language which is unlikely to have come from the appellant he was there saying that he had not seen the defence statement and did not know what was in it until he was in the witness box. This was untrue. He knew what was in it and had instructed Mr Selby accordingly in February (see above). Of course it may be that he had forgotten that he had seen the defence statement just as Mr Smith had forgotten what was in the proof of evidence but whatever the reason his statement was wrong.
47. It is clear from the evidence of Mr Selby and Mr Smith and from the appellant's own evidence, that he was neither timid nor overawed by the proceedings. That he did not complain to either of his counsel or his solicitor that this point had been made against him supports the account of Mr Smith and Mr Selby.
48. Mr Smith spoke very powerfully about his concerns about the evidence the appellant was likely to give about the telephone calls because he was so inconsistent. Mr Smith had conferences during the course of the trial when the decision as to whether or not the appellant should give evidence was becoming pressing. He told this court that the appellant was so inconsistent in his accounts of those telephone conversations that he had seriously considered not calling him to give evidence. This was not a realistic option, there was no prospect of an acquittal if the appellant did not give evidence No complaint is made about the decision to call him. In the event he was not a good witness..
49. Although the appellant was adamant that he had been consistent in his instructions about this telephone call it is difficult to see why counsel or his sister for that matter, found his evidence so surprising. There is however a more important point: given that Mr Smith/Selby had spoken to Mr Aspden about a different error in the defence statement, we see no reason to doubt that had they been aware that the conversation about the non-runner had been part of his instructions throughout but had erroneously been omitted from the Defence Statement they would have raised it with Mr Aspden.
50. It is plain that the appellant had said that there had been a conversation about a non- runner by early December 2014. We accept Mr Selby's evidence that his instructions about the contents of the telephone calls were not consistent as at the time the defence statement was served. We accept the evidence of Mr Smith that the appellant's instructions about the telephone calls were not consistent even in the days running up to the decision to call him. We are also sure that by the time he went into the witness box no one was expecting him to give evidence about the discussion with Qureshi about the non-runner. His evidence departed from his most recently expressed instructions.
51. In those circumstances it would have been improper for either counsel to seek to suggest that the evidence was consistent with what the appellant had said throughout. There had been many changes between January 2015 and the trial. We dismiss this ground.

Ground 1

The decision to call Mr Safder

52. With characteristic focus Mr Blaxland submitted that no competent barrister would have called Mr Safder in the light of the potential damage he could do to the appellant's case. Mr Smith and Mr Selby asserted that the decision was a finely balanced one but it was correct and certainly not incompetent.
53. The appellant and Mr Safder were friends. The appellant had accepted Mr Safder's recommendation of Mr Smith as counsel. He was keen that Mr Safder should be called and Mr Safder was content to be called. It was the appellant's case that he had no idea of the damaging evidence that Mr Safder had given at his own trial; had he realised what the damage might be he would not have agreed to calling his frie nd.
54. The solicitors obtained transcripts of Mr Safder's evidence. The appellant is adamant he never received them. They do not appear in any of the papers produced by his current legal team and there is no reliable evidence that the trial solicitors sent them. We consider it more likely than not that they were not sent to him, probably as a result of an oversight and we consider this ground on that basis. Mr Smith could not remember taking the appellant through the transcripts, although he hoped that he did so. Mr Selby recalled conferences in which parts of the transcript were worked through with the appellant. That was, he said, his overriding memory, but he was unable to give a time or date. We think it more likely than not that, having obtained the transcripts counsel did go through them with the appellant but in the light of their evidence we cannot be sure that he was taken to all relevant sections. We should add that the appellant said in evidence before us that he was aware that Safder had lied in his interviews but he was unaware of the extent of the lies. As we said in the course of argument, whether he read the transcripts or not, the appellant was entitled to rely on the advice of leading counsel which was, in the end, that Mr Safder should be called.
55. The question for us therefore is whether the decision to call Mr Safder was outside the range of decisions that could reasonably be made by competent counsel and, if so, whether its effect is to undermine the safety of the conviction.
56. The purpose of calling Mr Safder was straightforward. After the appellant had spoken with Qureshi and left the meeting near the Holiday Inn, Mr Safder had made the telephone call to the low loader driver in the presence of Mr Qureshi who subsequently maintained telephone contact with the appellant. Unsurprisingly the prosecution relied on that as evidence in support of the conspiracy; the loader was necessary to move the Jaguar. The timing fitted perfectly. It was the appellant's case that the reason for the call was to arrange a low loader for additional vehicles to be moved to DVSA in the course of the appellant's business the following day. This innocent explanation of the call was supported by a document from DVSA in respect of 4 vehicles the appellant was transporting to DVSA the following day.
57. Mr Blaxland points out that the document supported the appellant's case and it had been relied on by Mr Safder to good effect. There was no reason to call the Mr Safder. That overlooks the fact that Mr Safder had given evidence about the telephone call and had used the document in support of his evidence. Were no oral evidence given about the call at his trial the appellant would be disadvantaged.
58. Mr Blaxland cross examined Mr Smith to the effect that it was unwise to call Mr Safder because his credibility was so low. This was a misplaced criticism. Whatever else one might say about Mr Safder, at his trial the jury had not disbelieved him.
59. The fundamental difficulty with calling him, as Mr Blaxland rightly identified, was the evidence that he had given at the previous trial and what he had said to the police in interview, some of which was unhelpful to the appellant. Counsel were aware of this. On Sunday 22 February in an email to Mr Selby, Mr Smith identified the main areas of difficulty with Mr Safder thus,

"The main dodgy part of Safder's evidence was on 2nd October when the Crown got him to say ..that based on the evidence he has heard about during the trial Sami was involved in the importation – if he is proven guilty – but I don't know".

60. Mr Selby identified other problems, in particular, "AS obviously knew these guys" and his evidence about naming AS "easily get killed".
61. The potential problems with this evidence were obvious. A careful judgment call was required. During the course of the trial Mr Selby and Mr Smith spoke at some length to Mr Safder before a final decision was taken to call him. They were satisfied that he would be supportive of the appellant notwithstanding what he had said in evidence at his own trial.
62. The decision to call him was taken in the light of counsel's evaluation of the strength of the evidence (considerable) and in the light of their assessment that the appellant's evidence had been unsatisfactory.
63. This was a finely balanced decision and we are not persuaded that it was unreasonable or outside the range of decisions open to competent counsel to call the witness. It was not without risk but that is not unusual. Mr Smith pointed out that the appellant was determined to call Mr Safder but he may not have known quite what he had said before, whatever he was likely to say at this trial – and in any event, Mr Smith accepted that the appellant had taken his advice on the matter.
64. Mr Blaxland took Mr Smith to a particularly damaging piece of evidence which Mr Safder had given in his own defence. The question (in chief) was. "How did you feel about Atik Sami at that point?
    A I was really angry, pissed off with him and annoyed, cos he's the one who's p ut me in this situation, which I shouldn't be here today, and in jail as well for six months".
    He then justified not answering police questions and giving the detail of his defence until trial thus, "you can't start naming people in a situation like this….I mean, I was scared all the way 'til when I got locked up….you can't start putting names and next thing you hear, you know, you could get easily killed for something you haven't got a part in it."
65. In cross examination at his own trial, Safder was asked whether he believed Sami was involved. He said he had not believed it at the time but now did believe it. When pressed "you believe he was behind this now, don't you? A: Well, I don't know till when he's proven guilty, then I'll say yes, but you know as far as what I'm hearing there's so many names that have been mentioned so I don't know even till now who that drugs or what was happening that evening, who's accountable for it."
66. In cross examination at the appellant's trial Mr Safder was asked about both of those passages. He accepted that he had been upset with the appellant at the time of his trial but he was adamant that he did not think he was a drug dealer. He said he was there to help an innocent man by giving his evidence. He repeatedly denied being under any sort of pressure to give evidence. Mr Aspden was entitled to ask the questions and to ask them robustly but it is important not to confuse the prosecutor's questions with the answers he received. Mr Safder was consistent and firm in his defence of the appellant despite the robust questions. The following answer is an example of several "That man in the dock did not tell me to go and do anything wrong. That's why I'm here".
67. This was not an easy decision but Mr Smith considered, entirely reasonably, that the low loader call (made in the presence of Qureshi) had to be explained. He also believed, with good reason, that Mr Safder would support the appellant, notwithstanding what he had said at his own trial. And finally, he had had a very great deal of time to assess Mr Safder and the potential effect of his evidence, having represented him at trial.
68. We are not persuaded that this decision was incompetent. We accept Mr Smith's assessment that at the end of the appellant's evidence the case was very strong. There was merit in calling evidence to deal with the low loader and Mr Safder was prepared to support the appellant, which he did.
69. We revert to the case against the appellant. It was strong – see paragraph 16 above to which we would add the inherent unlikelihood of high level drug smugglers trusting an unknown person to take delivery of such a huge quantity of heroin. Taken separately or together the grounds do not undermine the safety of the conviction.
70. Accordingly we dismiss the appeal against conviction.

Sentence

71. Mr Blaxland argues that the sentence was manifestly excessive in the light of the appellant's limited role in the offences and his personal circumstances. It is apparent that some of the mitigation about the appellant's personal circumstances was not put before the trial judge. We accept that this was because the appellant was so shocked by his conviction that he did not give instructions to counsel. We have now been provided with all relevant information. We give leave.
72. It is inescapable that the amount of heroin was huge and, as the guideline makes clear, in appropriate cases the sentence can be in excess of the bracket set out in Category 1 and may be 20 years' imprisonment or more. A substantial prison sentence was inevitable. Qureshi was sentenced to 21 years' imprisonment and Khan to a term of 19 years. In sentencing the appellant to 19 years the judge said that during the first trial she had understood him to be involved at the highest level, with Qureshi, but she had changed her mind having listened to the evidence during the second trial. Nonetheless she considered that his role was very significant, if not a leading role.
73. The appellant was responsible for finding suitable premises where the heroin could be removed from the vehicle. There was no evidence of any involvement of the appellant in the earlier importations of Jaguar motor cars or of any involvement in this offence until after the Jaguar had arrived in Felixstowe when he received the first call from Qureshi. We agree with the judge's assessment that he played a very significant role but it was markedly lower down the hierarchy than Qureshi who was responsible for organising the movement of the Jaguar from the time it arrived in the United Kingdom. His involvement was through Qureshi.
74. The appellant had not been convicted of any offences for a prolonged period. He was running a business and had very significant family responsibilities. These offences were very different from anything he had previously done.
75. Having heard and read all we have been provided with about his family and personal circumstances we are persuaded that the sentence imposed was manifestly excessive. We reduce it to a sentence of 14 years' imprisonment on each count to be served concurrently. To that extent the appeal against sentence is allowed.