United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/256




Regina v. Latif (Appellant)

(On Appeal from the Court of Appeal

(Criminal Division))

Regina v. Shahzad (Appellant)

(On Appeal from the Court of Appeal

(Criminal Division))
(Conjoined Appeals)




JUDGMENT

Die Jovis 18° Januarii 1996

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against Latif and Regina against
Shahzad, That the Committee had heard Counsel as well on Tuesday
the 24th as on Wednesday the 25th day of October last upon the
Petitions and Appeals of Khalid Latif, currently detained at Her
Majesty's Prison Longlartin, and Mohammed Khalid Shahzad,
currently detained at Her Majesty's Prison Swaleside, praying
that the matter of the Orders set forth in the Schedules thereto,
namely Orders of Her Majesty's Court of Appeal (Criminal
Division) of the 10th day of March 1994, might be reviewed
before Her Majesty the Queen in Her Court of Parliament and that
the said Orders might be reversed, varied or altered or that the
Petitioners might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament might seem meet;
as upon the case of Her Majesty's Customs and Excise lodged in
answer to the said Appeals; and due consideration had this day
of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Orders of Her Majesty's Court of Appeal
(Criminal Division) of the 10th day of March 1994 complained of
in the said Appeals be, and the same are hereby, Affirmed and
that the said Petitions and Appeals be, and the same are hereby,
dismissed this House.







Cler: Parliamentor

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE




REGINA

v.

LATIF

(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL
(CRIMINAL DIVISION))

REGINA

v.

SHAHZAD
(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL
(CRIMINAL DIVISION))

(CONJOINED APPEALS)



ON 18TH JANUARY 1996

Lord Keith of Kinkel
Lord Jauncey of Tullichettle
Lord Mustill
Lord Steyn
Lord Hoffmann




LORD KEITH OF KINKEL

My Lords,

For the reasons given in the speech to be delivered by my noble and
learned friend Lord Steyn. which I have read in draft and with which I agree.
I would dismiss these appeals.

LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Steyn. For the reasons which he gives I too
would dismiss these appeals

- 1 -

LORD MUSTILL

My Lords,

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend. Lord Steyn. For the reasons which he gives I would
dismiss these appeals

LORD STEYN

My Lords,

During February and March 1991. and in the Crown Court at
Southwark. the two appellants stood trial on two charges. Count 1 charged
the appellants with the offence of being knowingly concerned in the fraudulent
evasion of the prohibition on importation of a controlled drug, contrary to
section 170(2) of the Customs and Excise Management Act 1979. The
particulars of the offence asserted that the drug was about 20 kilograms of
diamorphine. and that the appellants committed the offence between
6 February and 20 May 1990 in London and elsewhere in England and Wales.
Count 2. which was based on the same events, charged the appellants with the
offence of attempting to be knowingly concerned in dealing with goods subject
to a prohibition on importation with intent to evade such prohibition, contrary
to section 1(1) of the Criminal Attempts Act 1981. After a lengthy trial the
jury convicted both appellants on count 1. The judge sentenced Latif and
Shahzad to terms of imprisonment of 16 and 20 years respectively. The judge
discharged the jury from returning a verdict on count 2.

With the leave of the single judge the appellants appealed against their
convictions on the ground of three rulings made by the judge during the
course of the trial. First, the judge considered a submission that an informer
and customs officers by subterfuge incited Shahzad to commit the offence and
then lured Shahzad into the jurisdiction. Counsel for the appellants submitted
that in those circumstances it was an abuse of process to institute criminal
proceedings against the appellants and that the proceedings should be stayed.
Secondly, and relying on essentially the same assertions of fact, counsel for
the appellants invited the judge to exercise his discretion to exclude the central
core of prosecution evidence under section 78 of the Police and Criminal
Evidence Act 1984. Thirdly, counsel for the appellants submitted at the end
of the prosecution case that on the prosecution evidence the appellants were
not guilty of the offence charged under count 1, which was by then the only
count pursued by the prosecution. The judge ruled against the appellants on
all three submissions. On appeal to the Court of Appeal counsel for the
appellants challenged each of the judge's rulings. The Court of Appeal
rejected the three grounds of appeal and dismissed the appeals of both
appellants.

- 2 -

The Court of Appeal refused leave to appeal to your Lordships' House
but certified that certain questions of law of public importance arose. Those
questions covered the first and third issues but not the second. The Appeal
Committee granted leave to appeal. On the hearing of the appeal counsel for
the appellants challenged the three rulings of the judge, and the conclusions
of the Court of Appeal on all three matters.

The Undeniable Facts

Both appellants gave evidence. In short they testified that they were
under the impression that they were dealing with an intended importation of
gold. The jury rejected their explanations. Given the verdict of the jury, I
need only give a narrative of the essentials of the prosecution case. In 1990
Honi, a shopkeeper in Lahore, Pakistan, was a paid informer employed by the
United States Drugs Enforcement Agency. He knew local suppliers of heroin.
On 6 February 1990 he met two men who wanted to import heroin into the
United Kingdom. Honi reported this to Mr. Bragg, the British Drugs Liaison
Officer in Rawalpindi. Mr. Bragg encouraged Honi to foster the connection
with the two men. Honi acted under the instructions of Mr. Bragg. Honi
suggested to the two men that he knew an airline pilot who could be used as
a courier. That was untrue. The two men then introduced the appellant
Shahzad to Honi. Shahzad made it clear to Honi that he. Shahzad, was ready
and willing to export heroin when the occasion presented itself. At first
Shahzad proposed to Honi that he could export heroin from Pakistan to
Holland. Honi rejected this idea. All three men then agreed to supply Honi
with heroin for exportation to the United Kingdom. That was the historical
background to the subsequent and critical dealings between Honi and Shahzad.

A few days later Shahzad alone approached Honi. He proposed an
export of 20 kilograms of heroin on his own, cutting out the other two men.
Honi agreed. The arrangement made between them was that Shahzad would
deliver the heroin to Honi in Pakistan: Honi would arrange for an airline pilot
to carry it to the United Kingdom: Honi would take delivery of the heroin in
London: and Shahzad or somebody on his behalf would collect the heroin in
London and arrange for its distribution in the United Kingdom. On 1 April
1990 Shahzad delivered 20 kilograms of heroin to Honi. The street value of
the drugs in England was £3.2 million. In accordance with his instructions
Honi delivered the drugs to a Drugs Enforcement Agency officer. On
10 April 1990 Mr. Bolton. a Customs and Excise officer travelled from
England to Pakistan and collected the packages of heroin and on 13 April
1990 he brought them to England. The officer did so on the instructions of
his superiors. But he had no licence to do so. The Pakistani authorities had
been kept informed of what was going on.

In May 1990 Honi came to England. Customs and Excise officers
arranged for Honi to stay in a hotel room under surveillance. The customs
officers arranged for Honi's telephone calls to be intercepted. Events in his
room were recorded by video camera. Honi did not, however, have



- 3 -

possession of the packages of heroin. Honi then set about trying to persuade
Shahzad to come to England to take delivery of the drugs. On 19 May 1990
Shahzad arrived in London. During the next two days Shahzad and Honi
discussed the details of the delivery of the heroin and payment. On the
afternoon of 20 May the appellant Latif joined Honi and Shahzad. Shahzad
and Latif knew each other. Latif said words to Shahzad to the effect that
Shahzad could tell Islamabad that he (Latif) had arrived. Shahzad and Latif
continued to discuss the proposed delivery of the heroin.

A man, who pretended to have possession of the heroin on behalf of
Honi, then arrived. He was in fact a customs officer carrying 6 bags of
Horlicks, got up so as to resemble the original bags of heroin. The customs
officer delivered the bags to Shahzad who was immediately arrested. Latif
had been arrested a little earlier outside the hotel room.

The judge's rulings on abuse of process and exclusion of evidence under
section 78.

The principles applicable to the court's jurisdiction to stay criminal
proceedings, and the power to exclude evidence under section 78 of PACE,
in a case such as the present, are not the same. Nevertheless, there is a
considerable overlap. It will therefore be convenient to consider the judge's
findings under these two headings together.

Before making his rulings at the start of the trial the judge would have
studied the depositions. Honi gave evidence on the voire dire. Latif and
Shahzad did not testify at that stage. As to the dealings between Honi and
Shahzad in Pakistan, the judge summarized the position as follows:

" . . . this is a case in which, as I find, all the suggestions for the
crime came from the defendant [Shahzad]. I have to say, having heard
the detail of how the arrangement was made in Pakistan, according to
Mr. Honi, I think it would be a misuse of language to say there was
an incitement by Mr. Honi of the defendant or a soliciting of the
offence. The defendant voluntarily acted to explain his plan to
Mr. Honi in Pakistan and Mr. Honi was merely his agent to arrange
the carriage. Of course, Mr. Honi told him there was the opportunity
to import these drugs to the United Kingdom by means of this
carriage. Of course, all that was a deception, but the action all came
from the defendant and the defendant . . . voluntarily came to the
United Kingdom to deal in drugs here."

On appeal to the Court of Appeal Lord Justice Staughton added to the judge's
observations that the importation, which Shahzad had arranged through Honi,
would not have taken place when and how it did without the assistance of
Honi and the customs officers. The trial judge found that the Customs and
Excise lured Shahzad to the United Kingdom by trickery and deception. He
also found, however, that he was not brought to England by force: he came



- 4 -

voluntarily with a visa he applied for. There was no extradition treaty
between the United Kingdom and Pakistan. No breach of extradition laws was
involved. The judge said that

"what happened here is that every step the defendant [Shahzad] wished
to take was facilitated by the authorities in order to make sure that they
could bring a suspected and substantial drugs dealer to book."

The judge concluded that a stay would not be justified. The gravamen of his
reasoning appears in the following passage:

"Though no court will readily approve of trickery and deception being
used, there are some circumstances in which one has to recognise,
living in the real world, that this is the only way in which some people
are ever going to be brought to trial, otherwise the courts will not get
to try this sort of offence against people who are seriously involved in
it." '

Dealing with the application to exclude the evidence of Honi and others under
section 78(1) of PACE the judge concluded:

"To my mind, there is nothing of substance here which is unfair to the
defendant in admitting this evidence. The incriminating remarks are
on tape, so that proof of them does not depend on recollection of
witnesses. He was not deprived of any rights that he had or sought to
avail himself of. It is not evident to me that any legislation or rules
of practice designed to protect people from authority, has been
infringed. Nor is it evident to me that the defendant is in any way
handicapped from conducting his defence, whatever that may be, to
this charge."

The ruling on the submission of no case to answer

It will be convenient to consider the judge's ruling on the submission
that the appellants had no case to answer in respect of the first count after I
have considered the issues on abuse of process and section 78 (1) of PACE.

The abuse of process issue

Both in the Court of Appeal and in your Lordships' House the
argument concentrated virtually exclusively on the position of Shahzad.
Despite the fact that Latif was separately represented, I will concentrate on the
position of Shahzad and turn to Latif at the end of my speech.

At first instance and in the Court of Appeal counsel for Shahzad made
much of the undoubted fact that customs officers by deception arranged for
Honi to lure Shahzad to this country. Counsel for Shahzad drew your
Lordships' attention to observations of Lord Griffiths in Somchai



- 5 -

Liangsiriprasert v. Government of United States of America and Another
[1991] 1 AC 225. Lord Griffiths said (at pp. 242-243):

"It is notoriously difficult to apprehend those at the centre of the drug
trade: it is only their couriers who are usually caught. If the courts
were to regard the penetration of a drug dealing organisation by the
agents of a law enforcement agency and a plan to tempt the criminals
into a jurisdiction from which they could be extradited as an abuse of
process it would indeed be a red letter day for the drug barons."

Recognizing the force of Lord Griffiths' observations, counsel for Shahzad
realistically accepted that there was nothing oppressive about that part of the
conduct of the customs officers.

Instead counsel for Shahzad concentrated his argument on two other
features of this case. First, he submitted that the customs officers encouraged
Shahzad to commit the offence. Secondly, he argued that the customs officer,
who brought the drugs to England, himself committed the offence of which
Shahzad was convicted. It is necessary to examine these arguments. As to
the first. I approach the matter on the basis that Shahzad took the initiative at
the critical meeting between him and Honi. He was 37 years of age. He was
not a vulnerable and unwilling person. He was an organizer in the heroin
trade. He made clear from the start that he was ready and willing to arrange
the export of heroin from Pakistan. But I also accept Lord Justice Staughton's
qualification that the particular importation would not have taken place when
and how it did without the assistance of Honi and the Customs and Excise.
The highest that the argument for Shahzad can be put is that Honi gave him
the opportunity to commit or to attempt to commit the crime of importing
heroin into the United Kingdom if he was so minded. And he was so minded.
That is not necessarily a decisive factor, but it is an important point against
the claim of abuse of process.

That brings me to the second matter, i.e. the question whether the
customs officer, who brought the heroin to England, was himself guilty of
criminal behaviour. Section 50(3) of the Customs and Excise Management
Act 1979 reads as follows:

"(3) If any person imports or is concerned in importing any goods
contrary to any prohibition or restriction for the time being in force
under or by virtue of any enactment with respect to those goods. . . . .
and does so with intent to evade the prohibition or restriction, he shall
be guilty of an offence under this subsection ..."

It was common ground in argument before your Lordships that the customs
officer had committed an offence under this statutory provision. Despite the
requirement of "intent to evade," I incline to the view that this concession was
rightly made. In the Court of Appeal the prosecution accepted that the



- 6 -

customs officer had also committed an offence under section 170(2). That
provision reads as follows:

"(2) . . . . if any person is, in relation to any goods, in any way
knowingly concerned in any fraudulent evasion or attempt at evasion

1. . . . ;

2. of any prohibition or restriction for the time being in
   force with respect to the goods under or by virtue of
   any enactment: or

(c) . . . .

he shall be guilty of an offence under this section and may be
detained."

The Court of Appeal rejected the concession of the prosecution and held that
the customs officer did not commit an offence under section 170(2) because
he did not act fraudulently. On the appeal, counsel for the prosecution argued
that section 170 should be read as if the section provides

"if any person is ... fraudulently and knowingly concerned in any
fraudulent evasion . . . "

In my judgment there is no justification for adding the italicised words as an
additional ingredient to the offence in section 170(2). Indeed, such a
construction may cause practical difficulties in other cases. Having said that,
I am prepared to assume, without deciding, that the customs officer was guilty
of an offence under section 170(2).

It is now necessary to consider the legal framework in which the issue
of abuse of process must be considered. The starting point is that entrapment
is not a defence under English law. That is, however, not the end of the
matter. Given that Shahzad would probably not have committed the particular
offence of which he was convicted, but for the conduct of Honi and customs
officers, which included criminal conduct, how should the matter be
approached? This poses the perennial dilemma: see W. G. Rosser.
Entrapment: Have the Courts Found a Solution to this Fundamental Dilemma
in the Criminal Justice System?, 67 Australian Law Journal 722 (October
1993); and Andrew L.-T. Choo, Halting Criminal Prosecutions: The Abuse
of Process Doctrine Revisited, [1995] Crim. L.R. 864. If the court always
refuses to stay such proceedings, the perception will be that the court
condones criminal conduct and malpractice by law enforcement agencies.
That would undermine public confidence in the criminal justice system and
bring it into disrepute. On the other hand, if the court were always to stay
proceedings in such cases, it would incur the reproach that it is failing to
protect the public from serious crime. The weaknesses of both extreme

- 7 -

positions leaves only one principled solution. The court has a discretion: it
has to perform a balancing exercise. If the court concludes that a fair trial is
not possible, it will stay the proceedings. That is not what the present case
is concerned with. It is plain that a fair trial was possible and that such a trial
took place. In this case the issue is whether, despite the fact that a fair trial
was possible, the judge ought to have stayed the criminal proceedings on
broader considerations of the integrity of the criminal justice system. The law
is settled. Weighing countervailing considerations of policy and justice, it is
for the judge in the exercise of his discretion to decide whether there has been
an abuse of process, which amounts to an affront to the public conscience and
requires the criminal proceedings to be stayed: Reg. v. Horseferry Road
Magistrates' Court, Ex parte Bennett [1994] 1 AC 42. Bennett was a case
where a stay was appropriate because a defendant had been forcibly abducted
and brought to this country to face trial in disregard of extradition laws. The
speeches in Bennett conclusively establish that proceedings may be stayed in
the exercise of the judge's discretion not only where a fair trial is impossible
but also where it would be contrary to the public interest in the integrity of the
criminal justice system that a trial should take place. An infinite variety of
cases could arise. General guidance as to how the discretion should be
exercised in particular circumstances will not be useful. But it is possible to
say that in a case such as the present the judge must weigh in the balance the
public interest in ensuring that those that are charged with grave crimes should
be tried and the competing public interest in not conveying the impression that
the court will adopt the approach that the end justifies any means.

In my view the judge took into consideration the relevant
considerations placed before him. He performed the balancing exercise. He
was entitled to take the view that Shahzad was an organizer in the heroin
trade, who took the initiative in proposing the importation. It is true that he
did not deal with arguments about the criminal behaviour of the customs
officer. That was understandable since that was not argued before him. If
such arguments had been put before him, I am satisfied that he would still
have come to the same conclusion. And I think he would have been right.
The conduct of the customs officer was not so unworthy or shameful that it
was an affront to the public conscience to allow the prosecution to proceed.
Realistically, any criminal behaviour of the customs officer was venial
compared to that of Shahzad.

In these circumstances I would reject the submission that the judge
erred in refusing to stay the proceedings.

Section 78 (1) of PACE

By way of alternative submission, counsel for Shahzad argued that the
judge erred in not excluding the evidence of Honi and the customs officers
under section 78(1) of PACE. Exclusion under section 76, which deals with
confessions, does not arise. Section 78(1) reads as follows:

-8-

"In any proceedings the court may refuse to allow evidence on which
the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of
the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it."

The judge found as a fact that Shahzad was not in any way prejudiced in the
presentation of his defence. Counsel found it impossible to challenge that
finding. Given that conclusion counsel accepted that if his submissions on
abuse of process failed his separate argument based on section 78(1) of PACE
must inevitably also fail. I need say no more about this aspect of the case.

The submission of no case to answer:

At the end of the prosecution case counsel for Shahzad submitted that
on count 1 there was no case to answer. The judge ruled to the contrary. He
said that on the prosecution evidence it was a case of knowing evasion of a
prohibition rather than attempted evasion. In the Court of Appeal and in your
Lordships' House, counsel for Shahzad submitted that on the prosecution case.
Shahzad had not committed an offence under section 170(2) of the Customs
and Excise Management Act 1979. For convenience I again quote the
relevant part of this provision. It reads as follows:

"(2) ... if any person is, in relation to any goods, in any way
knowingly concerned in any fraudulent evasion or attempt at
evasion -

1. . . .;

2. of any prohibition or restriction for the time being in
   force with respect to the goods under or by virtue of
   any enactment: or

(c) . . . ,

he shall be guilty of an offence under this section and may be
arrested."

Section 3 of the Misuse of Drugs Act 1971 provides that, with certain
exceptions, the importation of a controlled drug (and heroin is a controlled
drug) is prohibited. This section creates no offence and imposes no sanction.
The relevant offence under section 170(2) of the Customs and Management
Act 1979 is created by a combination of section 170(2) and section 3 of the
Misuse of Drugs Act 1971.

- 9 -

The ingredients of that offence are as follows:

1. the goods in question are subject to a prohibition on importation under
   statutory provision: and

2. a fraudulent evasion or attempted evasion of a prohibition has taken
   place in relation to those goods: and

(c) the accused was concerned in that fraudulent evasion or attempted
evasion: and

(d) the accused was concerned in that fraudulent evasion or attempted
evasion "knowingly".

It is inherent in the concept of an evasion of a prohibition on importation that
an importation has taken place. If no importation has taken place no evasion
has taken place. On the other hand, if no importation has taken place, there
may still be an attempted evasion of a prohibition.

Given this statutory framework, counsel for Shahzad argued before the
Court of Appeal and again before your Lordships' House, that Shahzad had
not been concerned in the importation carried out by the customs officers.
Counsel for Shahzad emphasized that in full knowledge of the content of the
packages, and of the prohibition of the importation of heroin without a
licence, the officer arranged an importation. The prosecution argued that
despite the fact that the customs officer and Shahzad did not act in concert
there had been an evasion in which Shahzad was concerned. In the alternative
the prosecution submitted in the Court of Appeal that

"... if the full offence had not been committed, then the alternative
offence of being knowingly concerned in an attempted evasion of the
prohibition was committed."

That was not a reference to count 2, viz an attempt contrary to section 1(1)
of the Criminal Attempts Act 1981. By the end of the prosecution case count
2 had been withdrawn. The prosecution expressly stated in the Court of
Appeal that they were referring to an attempted evasion under section 170(2).

Giving the judgment of the court, Lord Justice Staughton observed:

"At first sight one might have thought that there had to be some
fraudulent person bringing the goods into this country and deceiving
the Customs and Excise in the process. If that be right there was no
completed offence in this case, for even without a licence Mr. Bolton
was not fraudulent and did not deceive anybody. His superiors knew
what he was doing. Mr. Shahzad and Mr. Latif would not be guilty
of the complete offence, but it is arguable they would be guilty of an
attempt.

- 10 -

"Such a construction of section 170 (2) is not, in our judgment,
correct. It would not catch the man who organises an importation by
an innocent courier. There would be no fraudulent evasion by
anybody in such a case, and the organiser could not therefore be
knowingly concerned in the fraudulent evasion. Mr. Bloom submitted
that the organiser would be liable as the principal of the courier who
acted as his agent. We do not find that suggestion of vicarious liability
plausible.

"In our judgment the words 'fraudulent evasion' include a good deal
more than merely entering the United Kingdom with goods concealed
and no intention of declaring them. They extend to any conduct which
is directed and intended to lead to the importation of goods covertly in
breach of a prohibition on import."

On appeal to your Lordships' House the prosecution did not try to support this
reasoning. It is established law that the offence charged can be committed
through an innocent agent, e.g. an innocent but duped courier. The
foundation of the reasoning of the Court of Appeal was therefore wrong. In
any event, in ruling that the offence of evading the prohibition (as opposed to
attempting to evade the prohibition) can be committed by any conduct which
is directed or intended to lead to the importation of the goods the Court of
Appeal went too far. It gave no effect to the fact that an evasion (as opposed
to an attempted evasion) necessarily involves an importation. Moreover, this
reasoning does not allow for the fact that section 170(2) in so far as it is
directed at an attempted evasion already covers certain pre-importation acts.
The reasoning of the Court of Appeal seems to allow little or no scope for an
attempted evasion for which section 170(2) provides: see a note on the
judgment of the Court of Appeal: Professor Sir John Smith. [1994] Crim.
L.R. 751-752. For these reasons I am unable to accept the reasoning of the
Court of Appeal.

Counsel for the prosecution attempted to support the conviction on a
different basis. He submitted that there was in truth a criminal evasion
because Shahzad delivered the heroin intending that it should be imported into
the United Kingdom; it was imported into the United Kingdom: and Shahzad
sought to take delivery in England of the heroin. Counsel emphasized the
continuing nature of the offence. He said it did not matter that the customs
officers acted for their own purpose. The problem, as Sir John Smith pointed
out in the note in the Criminal Law Review, is one of causation. The general
principle is that the free, deliberate and informed intervention of a second
person, who intends to exploit the situation created by the first, but is not
acting in concert with him, is held to relieve the first actor of criminal
responsibility: see Hart and Honore, Causation in Law, 2nd ed., 326 et seq.;
Blackstone's Criminal Practice, 1995, 13-15. For example, if a thief had
stolen the heroin after Shahzad delivered it to Honi, and imported it into the
United Kingdom, the chain of causation would plainly have been broken. The
general principle must also be applicable to the role of the customs officers



- 11 -

in this case. They acted in full knowledge of the content of the packages.
They did not act in concert with Shahzad. They acted deliberately for their
own purposes whatever those might have been. In my view consistency and
legal principle do not permit us to create an exception to the general principle
of causation to take care of the particular problem thrown up by this case. In
my view the prosecution's argument elides the real problem of causation and
provides no way of solving it.

That is, however, not the end of the matter. There is another
principled solution to be considered, namely the alternative argument of the
prosecution in the Court of Appeal, viz that Shahzad was guilty of an
attempted evasion under section 170(2). Initially, counsel for the prosecution
did not on the hearing before your Lordships rely on this alternative argument.
After your Lordships raised the question counsel for the prosecution did
advance this alternative argument. On this question your Lordships heard oral
submissions and subsequently received further written submissions.

Shahzad delivered the heroin to Honi in Pakistan for the purpose of
exportation to the United Kingdom and subsequently Shahzad tried to collect
[he heroin from Honi for distribution in the United Kingdom. In these
circumstances the guilt of Shahzad of an offence under that part of section
170(2) which creates the offence of an attempt at the evasion of a prohibition
is plain. Counsel for Shahzad suggested that the jury might have viewed
Shahzad's conduct as mere preparatory steps falling short of an attempted
evasion. In my view that would have been a wholly unrealistic suggestion.
In common sense and law there was only one possible answer: Shahzad
committed attempts at evasion in Pakistan and in England. Indeed I am
confident that counsel would not have devalued his speech to the jury with a
suggestion that on the prosecution case there was no attempt at evasion. For
my part I have no doubt that this case must be approached on the basis that
the guilt of Shahzad of an attempt at evasion under section 170(2) cannot
seriously be disputed.

Counsel for Shahzad also argued that if the movement of the heroin
from Pakistan to England was not a fraudulent evasion it was impossible for
Shahzad to be guilty of an offence of attempt at evasion. It will be recalled
that I accepted that the customs officer, who brought the heroin to England,
committed an offence under section 50(3) of the Customs and Excise
Management Act 1979 and further that I assumed that the customs officer also
committed an offence under section 170(2) of the same Act. In these
circumstances the argument apparently falls away. In any event, Shahzad
committed the attempt at evasion in Pakistan and nothing that the customs
officer subsequently did could deprive Shahzad's conduct of its criminal
character. And Shahzad's attempt at evasion by distribution of heroin in
England was an offence. It was sufficient to prove that Shahzad intended to
commit the full offence and was guilty of acts which were more than merely
preparatory to the commission of the full offence.

- 12 -

Counsel for Shahzad further submitted that in the circumstances of this
case an English court would not have had jurisdiction to try an offence of an
attempt at evasion under section 170(2) in England. The attempted evasion
in Pakistan, as well as the attempted evasion in England, were respectively
directed at importation into the United Kingdom and associated with an
importation into the United Kingdom. In these circumstances counsel's
submission in regard to the attempt at evasion, which Shahzad committed in
Pakistan, is destroyed by the decision of the House of Lords in D.P.P. v.
Stonehouse [1978] A.C. 55. The English courts have jurisdiction over such
criminal attempts even though the overt acts take place abroad. The rationale
is that the effect of the criminal attempt is directed at this country. Moreover,
as Lord Griffiths explained in the Somchai case, supra, at 250E-F, as a matter
of policy jurisdiction over criminal attempts ought to rest with the country
where it was intended that the full offence should take place: see also A. T.
H. Smith, Property Offences, The Protection of Property through the Criminal
Law, 1994, 23. In any event, in the present case Shahzad also committed an
attempt at evasion in England. I have no doubt that counsel's submission is
misconceived.

It is true, of course, that the indictment in the first count charge an
actual evasion rather than an attempted evasion. That means that the
prosecution charged more than was necessary. It is clear that if the
prosecution had pinned their colours to an attempt at evasion under section
170 (2) exactly the same evidence would have been led, and the speeches
would have been the same. I would reject the submission of counsel that the
defence of Shahzad might have been conducted differently if the indictment
had charged an attempt at evasion under section 170(2). The fact is that
Shahzad did testify. And, as the judge observed, in this case "the factual
basis of the prosecution case against these defendants is exactly the same"
whether the full offence or an attempt is considered. Moreover, the
prosecution submitted in the alternative before the Court of Appeal that
Shahzad was at least guilty of an attempt at evasion under section 170(2).
Given that there was no prejudice to Shahzad, the Court of Appeal could have
upheld that submission. The Court of Appeal found it unnecessary to consider
that aspect. It is now open to your Lordships to reconsider that issue. In a
more formalistic age counsel's complaint that that was not how the
prosecution presented the case at first instance might have had a greater
appeal. Nowadays, the view of a criminal trial as a sporting contest is a thing
of the past. The concentration is on substance rather than form. Given the
undeniable guilt of Shahzad of an attempt at evasion under section 170(2), and
absence of any prejudice to him, there is no reason why a technical mistake
by the prosecution should allow him to go free.

That leaves the question of what order should be made. One possibility is that
section 170 (2) contains two separate offences. On this supposition it would
be permissible to substitute a verdict on the basis that Shahzad was guilty of
an offence of an attempt at evasion under section 170(2). In my view this is
not the correct view. In my view there is one offence under section 170(2),



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which can be committed in one of two different ways, namely by evasion or
an attempt at evasion. Shahzad has correctly been found guilty of an offence
under section 170(2). Such misdescription as is contained in the indictment
can be ignored.

I would dismiss Shahzad's appeal. Given the terms of this judgment
it is unnecessary to deal directly with the certified questions of law.

Latif

Counsel for Latif adopted the submissions of counsel for Shahzad. He
further sought to argue that on the facts Latif s role was insufficient to
constitute an offence under section 170 (2). I have already described Latif s
role on 20 May 1990 when he and Shahzad attempted to take possession of the
drug for distribution in the United Kingdom. In the light of these facts the
submissions made on behalf of Latif are without substance. I would dismiss
these submissions.

I would dismiss the appeal of Latif against conviction.

LORD HOFFMANN

My Lords,

I have had the advantage of reading in draft the speech prepared by my
noble and learned friend, Lord Steyn. For the reasons which he has given.
I too would dismiss these appeals

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