Rehman, R. v

On 27 January 2005 in the Crown Court at Manchester the appellant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class A drug, namely diamorphine. He was later sentenced to 8 years' imprisonment. He now appeals against conviction by leave of the Full Court.

The factual background is as follows. At 4.15pm on 29 July 2004 at Manchester Airport the appellant was stopped by a Customs Officer, Helen Gatherer. He had just arrived from Islamabad. The officer asked him a number of questions in order to ascertain his identity and the details of his journey. He produced his British passport and driving licence. He gave details of his home address in Bradford and handed over his flight ticket. In answer to further questions he said that he had been away for four weeks in order to visit his sick mother, that he had paid for his ticket in cash and that he had purchased it the day before he had departed. He was then questioned about his luggage as follows:

The appellant had a baggage trolley on which there were a grey soft-sided suitcase, a burgundy hard-sided suitcase and a cricket bat. At the request of the officer he put the grey suitcase on the examination bench. The officer found a video tape in it and asked the appellant what was on the video. He said that his cousin had previously visited Pakistan and had recorded the video. The appellant then put the burgundy hard-sided suitcase on the examination bench. It had silver square stickers on it with the words "Tony", "Mirup" and "Nama". Before commencing a search of the burgundy suitcase, the officer asked the appellant again about the video which had been found in the grey suitcase. The appellant said that his cousin was a heroin addict who had gone to Pakistan "to get clean" and that "they made a video of him?'. The officer asked the appellant if he had ever used drugs but the appellant said that he was anti drugs and only used alcohol.

The appellant opened the burgundy case, whereupon the officer searched through the contents. She took a swab from the interior of the case and tested it on a screening device. It gave a positive reading for heroin and opiates. Shortly afterwards, another officer cut into the lining of the case, exposing some black plastic. She cut through the plastic and inserted a spike into the cut. This revealed a brown substance between the outer and inner skins of the suitcase. A drugs field test was carried out on the brown substance and a positive reaction for heroin was obtained. The appellant was then arrested and cautioned.

Some hours later in the custody suite Ms Gatherer asked the appellant if he would read and sign her notebook as a correct record of the earlier conversation but the appellant declined. On 29 July 2004 the appellant was interviewed in the presence of his solicitor but he declined to answer questions, including questions about what had transpired between himself and Ms Gatherer prior to the arrest.

The recovered diamorphine was in six heat-sealed bags. They weighed 1.87kg with pure diamorphine accounting for 1.14kg.

At trial the appellant gave evidence and denied all knowledge of the drugs in the suitcase. He said that he had flown from Manchester to Lahore on 3 July to visit his sick mother and family. A friend, Inam Qureshi, picked him up at the airport and took him to his village. When the appellant was due to return home, he discovered that he had purchased too many items to fit in his suitcase so he asked Inam Qureshi to obtain an additional suitcase. He made this request because Inam Qureshi lived in a larger town and had access to more shops. On the evening of the return flight, Inam Qureshi arrived to take the appellant to the airport and produced the burgundy suitcase in which the drugs were later found. All the appellant had done was to pack some of his belongings into the burgundy suitcase without noticing anything untoward.

The first ground of appeal relates to the refusal of the trial judge to hold a voir dire before deciding not to exclude the evidence of the conversation between the appellant and Ms Gatherer pursuant to section 78 of the Police and Criminal Evidence Act 1984. Obviously, what the appellant had said to MS Gatherer was inconsistent with his eventual evidence about the acquisition of the burgundy suitcase in Pakistan. Counsel then representing the appellant (not Mr Bennathan) made it clear that she sought to exclude the evidence of the conversation on the ground that Ms Gatherer had had a reasonable ground to suspect the appellant of an offence before or at an early stage of the questioning and ought therefore to have administered the caution significantly before she did. The judge asked prosecuting counsel if he wished to call evidence on the topic. Counsel replied:

The judge then observed to defence counsel that it was not the policy of Customs to confirm or deny whether they had information, that that would not preclude the defence from calling Ms Gatherer, "but that is the answer you would get if you asked her".

Defence counsel submitted that such a policy on the part of Customs & Excise ought not to determine the matter. When asked by the judge for an indication of what she might wish to cross-examine Ms Gatherer about, defence counsel referred to the tickets and luggage labels which might have given rise to a reasonable suspicion that more suitcases were being brought into the country than had been taken out. She also wished to explore whether a sniffer dog had been used on the luggage before its retrieval by the appellant. It may be that counsel also had in mind to explore why the officer had proceeded to swab the interior of the burgundy suitcase when she had not taken such a course in relation to the earlier search of the grey suitcase. There was some discussion about recent authorities on the subject (to which we shall return) and the judge acknowledged that the defence statement maintained that the burgundy suitcase had been given to the appellant in Pakistan.

In refusing to hold a voir dire or to exclude the evidence, the judge said in his ruling:

The judge went on to say that, even if he were wrong about that, and a breach of the Code had been established, he would not have excluded the evidence under section 78. Mr Bennathan's central submission is that the judge was wrong to refuse to hold a voir dire and was wrong to defer to the policy of Customs & Excise. The legal context of this submission is as follows. By paragraph C: 10.1 of the Code of Practice, it is provided:

In the appended notes for guidance it is provided at C: 10A:

Where the Code is relevant to any question arising in the proceedings, the court must take it into account in determining that question (section 67(11) of the Police and Criminal Evidence Act 1984). In this and many other cases the submission on behalf of the defence was that there had been a breach of the Code and that the evidence ought therefore to be excluded under section 78 of the 1984 Act which provides for such exclusion

At least since Keenan 90 Crim App R 1 it has been accepted that not every breach of the Code necessarily requires the exclusion of evidence pursuant to section 78. Generally, the approach has been to consider whether a breach is "significant and substantial". In Walsh9 1 Crim App R 16 1, this Court stated (at page 163):

Essentially, the case for the appellant in this Court is that the way in which the judge dealt with the application to exclude the questions and answers was wrong because it denied the appellant the opportunity to cross-examine the officer on the issue of suspicion such as would raise the duty to caution under the Code. Mr Bennathan rightly accepts that a defendant cannot simply demand to test the evidence on a voir dire. There must be a foundation upon which to construct an application to exclude the evidence. He submits that such a foundation was clear in this case. He points to three matters contained in the witness statement of the officer: (1) the questions: "Are these the cases you took out of the country with you?" and: "And the burgundy case, did you take that out of the country with you?"; (2) the question: "Have you been in contact with any drugs?"; and (3) the fact that the officer searched the grey case without swabbing or spiking it but, when she searched the burgundy case she swabbed it, obtaining a positive reading for heroin, whereupon her colleague spiked it to like effect. All this, it is suggested, was consistent with a reasonable suspicion that more cases were being brought back into the country than had been taken out (a fact confirmed on the face of the ticket) and that the burgundy case contained drugs.

We accept the submission that a proper foundation was laid by those matters. It is implicit in that acceptance that it is appropriate to look at the whole of the witness statement to see whether the foundation has been laid and not just to analyse it schematically, question by question and answer by answer. Looked at as a whole, it gave rise to a justified apprehension that the officer may have had a reasonable suspicion sufficient to support a proper application for her evidence to be tested in the . voir dire.

That no voir dire was held was the result of trial counsel informing the court that it was Customs policy not to confirm or deny the reason for the stopping and questioning of a person in any case and that, having taken instructions from the officer, he was satisfied that there was no material which he was bound to disclose -that is nothing which might undermine the prosecution case or assist the defence case on the issue. Nor was there any need to make an application for public interest immunity. No one doubts that counsel acted conscientiously and consistently with what he was told by the officer. It seems that, in the view of the judge, that was enough.

It appears to be common ground that what prosecuting counsel said amounted to an implied assurance that the officer did not have any cause for suspicion based on material derived from an informant or an intercepted communication, for these would have been sensitive matters upon which an application for public interest immunity would have ensued. Mr Bennathan is content to take that at face value. However, he submits that that leaves the possibility of a reasonable suspicion based on non-sensitive material -for example, the use of a sniffer dog, an inference from the additional piece of luggage, an observation at the airport. In the light of the evidential foundation to which we have referred, he submits that the defence were entitled not to accept the instructions imparted to and through prosecuting counsel at face value. They were entitled to cross-examine and to receive non-sensitive answers, unimpeded by a global policy. We should add that we have not been shown the policy in writing. It is said to be set out in an internal handbook and to be included routinely in instructions to counsel.

Mr Bird submits that to have held a voir dire was simply one way of dealing with the problem and not a mandatory way. The more appropriate procedure would have been for the defence to have made an application for disclosure under section 8 of the Criminal Procedure and Investigations Act 1996 and for that to have been processed in the normal way. Alternatively, defence counsel could have taken up the suggestion of the judge and called the officer herself. At all events, it was up to the judge to decide how to proceed and, in all the circumstance, his chosen way is unimpeachable.

We do not agree with Mr Bird's submissions. It seems to us that the judge ought not to have been satisfied that the matter could be resolved by deferring to the policy of Customs, and placing his faith in what had been imparted to prosecution counsel by the officer. That was simply not the correct way of proceeding. Nor was the suggestion that defence counsel could call the officer when the judge knew that the officer would still invoke the policy and the judge, seemingly. would allow her to do so. An application under section 8 may have been a possibility but it was not the application that was before the judge and, as we take the view that the application before the judge had a proper foundation, he ought to have acceded to it. His failure to do so was an error.

What are the consequences of that conclusion? Mr Bennathan does not invite this Court to hold that a breach of the Code has been established. He submits that we are in no position to make such a finding because we do not know what the evidence of the officer would have been.

Mr Bennathan's submission that we should not trouble ourselves with whether there was in fact a breach of the Code and, if so, whether it was significant and substantial, is an unusual one. It seems to us that it probably derives from the difficulty which stands in the way of the appellant as a result of the recent case of Senior and Senior [2004] 2 Crim App R 12. There, one of the Customs officers at the airport had opened one of the suitcases before its retrieval by the appellants and had noticed a chemical smell. He had spiked the suitcase and obtained a positive response to a field test for cocaine. The luggage was then permitted to continue on its course. What happened thereafter was not dissimilar to the facts of the present case in that officers proceeded to ask ostensibly routine questions without first administering the caution. No voir dire was held in that case but, at the end of the prosecution case, a submission was made that the pre-caution questions and answers should be excluded. The judge held that there had not been a breach of the Code but that, even if there had been, it would not have been appropriate to exclude the evidence. This Court took a different view on the question of breach. Giving the judgment of the Court, Potter LJ said at paragraph 33:

He later added (at paragraphs 37 to 38):

We are bound to say that we have difficulty in understanding the phrase "and certainly one involved in drug smuggling" because it seems to rest on an inappropriate presumption. Nevertheless, we find the rest of that passage to be relevant and cogent in the context of the present case. When, in the present case, the judge made his alternative ruling that, even if there had been a breach, he would not have excluded the evidence, he did so expressly by reference to Senior and Senior, describing it as "effectively a much stronger case for the defence". We consider that it would be wholly speculative to take the view that, if a voir dire had been held in the present case, it would or might have produced evidence of a more serious breach than that found by this Court in Senior and Senior. We, too, are persuaded that this is a less compelling case than Senior and Senior. The questioning was unremarkable and not in the least oppressive. There was no dispute as to the accuracy of the evidence of the officer's note of the conversation. When the appellant came to give evidence his explanation for his answers to the questions was that he had been tired and confused.

We have come to the conclusion that the erroneous failure of the judge to hold a voir dire does not affect the safety of this conviction. There is no basis to infer even the possibility of bad faith on the part of the officer. We are confident that, whatever had materialised on a voir dire, if it had been suggestive of a breach of the Code, the breach would not have exceeded in seriousness or substance the one in Senior and Senior. If the appellant had been cautioned, it may be said that he would have had the opportunity of reflecting on the seriousness which might be attached to his answers. Whilst that can, to a degree, be accepted, it is absurd to suggest that those stopped in a Customs check and asked questions about their luggage and movements are unaware of the formality of the occasion. The questions were not complicated. The explanation which the appellant provided in evidence for answering in the way he did would have been considered by the jury in the context of all the circumstances of the case. We do not doubt that the jury would not have convicted him unless they were sure that his declared lack of knowledge and his evidence of the circumstances in which he came into possession of the second suitcase were untrue. We reject this ground of appeal.

The appellant had one previous conviction being (in the judge's words) "a minor offence of public disorder for which he was fined the sum of £50". The judge directed the jury as follows:

Mr Bennathan submits that this fell short of an unadorned good character direction and that it was particularly important that the appellant should receive the benefit of a fill direction in a case which turned wholly on his credibility. He complains that, in respect of each limb of the direction, the judge used the language of "may be", that the relevance of good character was "a matter for you" and that the judge was "merely identifying" legal or potential legal significance.

We detect a degree of grudging sloppiness in the wording of the direction. However, we do not accept that its shortcomings are such as to affect the safety of the conviction. The direction begins with the observation that the character of the appellant ''has significance in two areas". We do not consider that the jury would have been led into thinking that they could choose to give no consideration to good character. We are quite sure that they considered it and, in so doing, construed the direction as meaning that it was for them to decide how much significance to attach to it.

As we have related, in his formal interviews the appellant chose not to answer questions. The judge rightly concluded that, in the circumstances of this case, the jury should not draw any adverse inference. He directed the jury as follows:

We do not understand that somewhat gratuitous postscript. For one thing, it is not the case that the defence emerged for the first. time in the witness box. It had been foreshadowed in the defence statement, albeit that that was not delivered within the time limit fixed by statute. Moreover, it is questionable whether the limited resources allocated to the investigation could ever have enabled Customs & Excise to check the appellant's account with people in Pakistan. As it happens, it seems that the prosecution accepted that Mr Qureshi might be a genuine person and not a figment of the appellant's imagination. As with the good character direction, this gratuitous addition to an otherwise proper direction deserves the criticism of this court. However, once again, we do not consider that it affects the safety of the conviction.

It follows from what we have said that, whilst we have found reason to criticise the judge in the context of each of the three grounds of appeal, we do not consider that any of the shortcomings affect the safety of the conviction. We should add that we have also considered the grounds on a cumulative basis and we have come to the same conclusion. Accordingly, this appeal is dismissed.