Vernett-Showers & Ors v The Crown

This is a judgment to which all members of the Court have contributed.

Starting on 25 April we heard a number of appeals arising from the controlled delivery (CD) of heroin into this country from Pakistan. The problems associated with such cases have been examined at some length by this Court in Choudhery and Others [2005] EWCA Crim 1788. Anyone who wishes to know more about controlled deliveries of heroin by participating informants (PIs) from Pakistan should refer to that case.

Since handing down Choudhery a number of other appeals have been allowed, with the consent of the respondent, now the HMRC, formerly HM C&E (“C&E”). Of the instant appeals, the respondent takes the view that the convictions are safe and that the appeals should be dismissed. There are two exceptions. The respondent concedes the appeals of Nisar Ahmed and Rizwan Ahmed (Operation Pastie) and concedes the appeal of Mohammed Ramzan (Operation Dire). We agree with these concessions and will give our reasons for allowing the appeals later in this judgment. The reasons in these two cases reflect in very substantial measure notes to the Court prepared jointly by counsel for the appellants and the respondent. We are very grateful for those notes.

During the hearing we dismissed all of the appeals other than that of Umar Masud (Operation Notorious), which we allowed.

Although the grounds of appeal are expressed in different ways there is agreement that there are two different, albeit overlapping, routes, which would lead the Court in these cases to quash the convictions. It is agreed that the routes involve the court asking a number of questions. Route 1 was described during the hearing as the Pendleton route named after the case of Pendleton [2001] UKHL 66; [2002] 1 W.L.R. 72 [2002] 1 Cr App R 34. It applies the Pendleton test to determine whether the convictions are safe in the light of the discovery of undisclosed material which ought to have been disclosed or of fresh evidence. (In addition to Pendleton see also Dial & Anor v. The State (Trinidad and Tobago) [2005] UKPC 4, which discusses Pendleton). Route 2 is concerned with what may be called gross prosecutorial misbehaviour and in particular the deliberate misleading of the Court.

The questions posed are as follows:

Route 1- undisclosed material:

Is there material which ought properly to have been disclosed at trial but which was not disclosed?

If so, is it likely that the defence would then have placed before the jury this material to undermine the prosecution’s case or support the case for the defence?

If so, might that evidence have reasonably affected the decision of the jury to convict?

If so, is the conviction unsafe?

Route 1- fresh evidence

Is there fresh evidence (satisfying the criteria in section 23 of the Criminal Appeal Act 1968) which, if it had been before the jury, might have reasonably affected the decision of the jury to convict?

If so, is the conviction unsafe?

Route 2

Has there been gross misconduct on the part of those responsible for investigating the case or presenting the case in court?

If so, is the conviction safe?

Both routes featured in Choudhery.

All of the appeals come to this court following a reference by the Criminal Cases Review Commission (CCRC) other than the appeal of Mohammed Kurshid Khan (Operation Fleur-De-Lys). In his case we gave him leave to appeal. He is the only appellant in custody. He left the country during the course of his trial. He is now serving the sentence passed upon him in his absence. His name, and many others, has been rendered in various spellings at different times. It is impossible to reconcile the conflicting contemporaneous documents into a consistent spelling. We will do the best we can.

We make it clear at the outset that the CCRC was, in our view, right to make the references and we are grateful for all the work which the CCRC has done on these cases.

At the suggestion of counsel for the appellants and for the respondent, we listed the contested appeals together because (with the exception of Operat6ion Dire) they concern the same participating informant. He used a different name in all the operations, but for ease of reference we shall refer to him throughout as Haji.

Before looking at the details of the cases we express our gratitude to all who have been concerned in the preparation of these appeals. They are to be congratulated for the sensible manner in which they have approached an enormous task and they are to be congratulated for the huge amount of work which they have done in order to make the appeals manageable. Each operation had its distinctive core bundles for the purposes of the appeal. In addition to skeleton arguments, counsel produced many invaluable speaking notes, which reduced the amount of time spent on oral argument and which have been of considerable assistance in preparing these judgments.

We set out almost in full a letter from all counsel about Mrs Sarah Rahim, a senior lawyer at the RCPO. We fully endorse what is said in the letter.

... The purpose of the letter is to bring to the attention of the court a particular and enormous personal effort undertaken to ensure that these cases were properly prepared for the appeal.

Your Lordships will appreciate that the creation of the appeal bundles was a product of substantial co-operation between the parties. What may not be so obvious is that the logistics of their creation was a massive task. Overseeing this task fell to Mrs Sarah Rahim, a senior lawyer at RCPO, and it is not an exaggeration to say that in the month leading up to these appeals she worked every hour God sent. We all frequently received e-mails timed in the early hours of the morning. On one occasion, observation of the deadlines necessitated her to work literally through the night.

Mrs Rahim has been part of the legal team involved in this litigation since 2002. All of the other government lawyers involved in the litigation have come and gone; it is to Mrs Rahim’s considerable credit that she has stuck it out, especially in the period since the Choudhery appeal, when she has been in effective sole charge of the litigation. Her tenacious and meticulous preparation in this period has enabled the cases to run as they have. She has been loyally assisted by RCPO support staff, and junior counsel team members, chief amongst whom were Eleanor Mawrey and Quentin Hunt.

...

In addition, we add our sincere thanks to Dr Paul Burns of the Criminal Appeal Office. He has had the unenviable task of making sure that everything has been properly prepared for us. He could not have managed the task better. Without him we would have been truly lost.

In Choudhery, the Court said this:

The respondent submitted that the “paradigm” was largely based upon a witness statement from former DCIO Newsom and when Mr Newsom gave evidence in the Operation Brandfield trial he departed considerably from that statement.

We do not accept that criticism and indeed Mr Bird seemed to concede in the course of argument that it was misplaced. The features of a paradigm delivery were derived in substantial measure from the various official guidelines on the use of participating informants for controlled deliveries.

On the other hand the absence in a particular CD of a feature of a paradigm delivery is not dispositive of an appeal. The paradigm controlled delivery identified by the Court in Choudhery does not (as Miss Brander accepted) have the status of a guideline or benchmark against which controlled deliveries should be judged. The absence of a particular feature does no more than make one suspicious about the particular controlled delivery under examination. Is it genuine or not? In particular it will not be a genuine CD if the supplier knew that the delivery was a delivery under the control of HMRC or, of course, if the PI was the supplier.

In these appeals Haji carried out many CDs. Given the risk to a PI following the discovery by a genuine seller that he has been double-crossed, even though he uses a different name each time, his later CDs must be approached with caution. On the other hand we were given a fact that does not feature in the Choudhery judgment, namely the scale of the trade in heroin originating in Afghanistan. Afghanistan produced 197 metric tonnes of heroin in 1992 rising steadily to 460 tonnes in 2006. 95% of the heroin in the UK comes from Afghan opium. Approximately 25-30 metric tonnes of Afghan heroin are targeted for the UK, of which 20-25% comes direct from Pakistan, as did the heroin in the instant appeals. This means that the quantity of heroin coming into this country directly from Pakistan is substantial.

Given these quantities, it may make it more likely that a PI can carry out a number of genuine CDs.

We also looked more closely during these appeals at the role of the Jirga or tribal court in compensating the supplier for the fact that he has been cheated by the PI. The role of the Jirga remains shrouded in mystery (at least to us) but the Jirga nonetheless may enable a PI to escape with his life and live to do another genuine CD. On the other hand the involvement of the Jirga may need to be considered carefully when deciding whether a particular CD is a genuine CD. In particular one may need to know whether the PI is telling the truth about what he says happened at a Jirga.

At least two of the instant appeals reveal another variation. In addition to the supplier of the heroin there may be a principal in Pakistan who buys from the supplier in Pakistan and finds an importer here, the supplier choosing the courier.

There is an added complexity that the supplier/principal may have been paid by the importer for the heroin before it had left Pakistan or at least before the arrest of the importer. In at least one of the cases there was a strong probability that the principal had been paid although, it appears, he had not paid the actual supplier of the drugs (Notorious). The supplier/principal who has received payment may be at risk of losing his reputation with importers here, but he may be less interested in obtaining compensation from the PI.

The first appeal we heard concerns Operation Rainman. There are three appellants Michael Vernett-Showers (Showers), Mohammed Sabir (Sabir) and Bakhtiar Ahmed (Ahmed). In November 1991 Showers and Sabir were convicted of one count of conspiracy to evade the prohibition on the importation of heroin and one count of conspiracy to supply heroin. Ahmed was convicted on count 2.

There was a fourth defendant Mohammed Zubair (Zubair) who pleaded guilty to count 2 and gave evidence for the prosecution.

Mr B Leveson QC (as he then was) was counsel for the prosecution. We are very grateful for his notes which were particularly helpful in trying to work out what had happened at the trial.

Rainman involved the controlled delivery of just under 12 kilograms of heroin. The importation took place on 2 November 1990. The participating informant was Haji.

It was the prosecution’s case that the supplier of the drugs in Pakistan was Mohammed Aslam (Aslam) a person with significant links to this country but who at the time was living in Pakistan. On the prosecution’s case the recipient of the drugs was to be Showers. Zubair, Aslam’s nephew, acted, as he admitted, as an interpreter for Showers and took a number of steps to further the conspiracy. Sabir was, on the prosecution’s case, the link between Aslam and Showers and provided the £11,000 required by Haji before he would make a partial delivery of the heroin. At a time when the proposed transaction was stalling in large measure because of a lack of money, Ahmed was sent to England from Pakistan by Aslam to assist the progress of the transaction. Ahmed in effect admitted his role but said in interview that he intended to reveal all to C&E. He tried, unsuccessfully, to paint himself as in a like position to Haji. Showers and Sabir gave evidence, Ahmed did not.

In September of 1990 according to Haji he met a man called Awaz Khan who asked him if he was prepared to take a consignment of 12 kilograms of heroin to the United Kingdom. It never became clear who Awaz Khan was. Haji, when asked about him in evidence, said that he did not know whether Awaz Khan and Aslam were the same person.

What did become clear, on the prosecution’s case, was that Aslam was the supplier from the outset or became the supplier later.

On 7 October 1990 Haji saw Malcolm Bragg the drug liaison officer (DLO) and told Bragg about the meeting with the person he named as Awaz Khan. Bragg instructed Haji to obtain the name and telephone number of the intended recipient of the heroin in England.

On 18 October 1990 Haji returned to the British High Commission (BHC) with the name “Pervez Khan” and a UK telephone number. He also gave another telephone number. Pervez Khan was an alias used by Zubair for the purposes of the planned importation.

The heroin having been collected and handed over to the DLO, it was subsequently brought to England by a C&E officer on 2 November. Haji having arrived in England was established in a hotel near Manchester airport and his calls and subsequent meetings were recorded.

Prior to the handover of the drugs there was a series of telephone calls between Haji and those involved in the conspiracy.

On 9 November the appellant Sabir withdrew the £11,000 in cash from his bank. Zubair was arrested as he left Haji’s hotel having collected 2 kilograms of heroin.

Zubair was in possession of scraps of paper including important telephone numbers attributable to Showers and numbers in Pakistan. He also had a scrap of newspaper which he said had been given to him by Sabir for use as a signal. That important scrap of newspaper was a perfect fit with a newspaper found at Sabir’s house. Various pieces of paper were found at the diverse addresses associated with Showers and on his person when he was later arrested. These included a number for Sabir, relevant contact numbers in Pakistan, the number of the hotel where Haji was staying and the name that Haji was using at that stage. There was also a link on the prosecution’s case, between Showers and Ahmed. It was the prosecution’s case that the multiplicity of calls and the documentation showed that each of the appellants was part of the conspiracy and the prosecution’s case was considerably fortified by the evidence of Zubair.

Haji when giving evidence was challenged only about one matter. He had said, in answer to an unwise question in cross-examination, that he had given the name of Michael [Showers] to a German drug liaison officer, called Feldman. Following the challenge, the prosecution proved that he had given the name and an admission to that effect was subsequently made (the Feldman admission). Haji’s evidence hardly featured in the summing-up. Zubair was the vital witness for the prosecution and it was his evidence which became the subject of substantial attack. In the words of Mr Ashley-Norman: “Reference to Haji is notable by its absence”.

In our view the evidence against the appellants was overwhelming.

Mr Ashley-Norman demonstrated that to us and we repeat his submissions from the speaking note which he prepared to help us. This is what he had to say about Sabir.

Zubair gave compelling evidence against Sabir :

Sabir had told Zubair to use the name Pervez Khan

Sabir had told Zubair that he was to act as interpreter

Sabir had introduced Zubair to Michael

Sabir had provided Showers with the clothes to conceal the heroin

On Sabir’s instructions Zubair had telephoned Mohammed Aslam Khan

Sabir instructed Zubair to visit Haji in the hotel

Zubair had reported back to Sabir following the hotel visit

Sabir had provided Zubair with £11,000

Sabir had asked Zubair to use the torn newspaper as a signal

Sabir had attempted to bribe Zubair to change his account

Sabir with Showers had sought from Zubair the retraction letter

On arrest Sabir had lied to Customs officers about not having given any money to Zubair.

The torn newspaper was found and did match (but, as HHJ Hammond clearly explained, did not amount to corroboration).

Sabir had given a lying account to the bank about the reason for requiring the £11,000.

In interview Sabir admitted knowing Zubair, and said the £11,000 was an advance on a house purchase from Zubair. Sabir did not know Showers and could not account for Showers having a telephone number associated with him.

Mr Ashley-Norman wrote this about the case against Showers.

Zubair gave compelling evidence against Showers:

Showers had met with Zubair and Sabir and discussed the intended importation

Showers had given Zubair a bin liner full of clothes (provided by Sabir) with which to cover the drugs in a suitcase

Showers drove him to Liverpool for the purposes of the telephone call

Showers gave him instructions as to what he could and could not say

Showers and he had awaited a call that never came, and on departure, Showers had instructed Maria that if someone rang for Pervez Khan to say that they had waited and left, briefly visiting Showers’ office before going back to Bradford

There had been a second occasion when again they awaited a call from Haji which never came, and calls had thereafter been placed from Showers’ office

Showers had three times given him a lift back to Bradford

On the last occasion Showers had told Zubair not to look back

Showers supplied Zubair with Haji’s hotel telephone number and room number

...

Surveillance evidence placed Showers at residential addresses when important telephone calls were placed.

Showers association with Mohammed Aslam Khan demonstrated by the envelope found at work, and admitted by Showers.

Showers admitted telephone call to Haji.

...

The evidence of the pattern of telephone calls (including for example the call to Haji).

Showers was in possession of the entire set of relevant telephone numbers and telephone messages.

We turn to what Mr Ashley-Norman had to say about the case against Ahmed:

Zubair gave some limited evidence against Ahmed.

The strength of the evidence against Ahmed derives from the combination of the events at Heathrow and his subsequent actions, taken together with his possession of relevant telephone numbers [and, we would add, his timely failure to report what he knew to the authorities].

...

For all these illustrative reasons it is submitted that the case against the appellants independent of Haji was a strong one.

Crucial to an understanding of the appeal is the fact that it was not alleged at trial that the defendants had been set up. It was not alleged that the appellants were involved in a conspiracy to import, for example, gold or clothes which turned out to be heroin. They accepted that heroin had been imported. The defence of Showers was that he was no more than an innocent giver and receiver of telephone calls. Sabir’s defence was that he paid over the £11,000 in part payment for a house and not for drugs. Ahmed admitted, to all intents and purposes, his involvement in the conspiracy but said he was involved in order to report it. It is not surprising that the jury convicted all of them.

Mr Ashley-Norman showed conclusively, in our view, that this was a genuine CD. Mohammed Aslam did not know that Haji was working for C&E:

Indeed, during the course of argument Mr Friedman accepted that it was very unlikely that Haji and Mohammed Aslam Khan were “in cahoots”. It would be extraordinary if Mohammed Aslam Khan had knowingly sent his nephew to prison!

Additionally the prospective recipient was identified before the drugs left Pakistan. In the words of Mr Ashley-Norman:

Showers was identified as the intended recipient before the importation.

‘Michael’ referred to in conversation with Feldman the German DLO (see admission).

Name ‘Michael’ volunteered by female recipient of telephone calls on 20 October.

Checks on telephone numbers enable surveillance on 21 October when further controlled telephone call made. Result of surveillance was a car registered to Mrs. Vernett-Showers was seen outside the address at the time that address received the call summarised at R490. Male ‘thought to be Showers’ leaves shortly afterwards.

Mr Friedman relies on the following points to support his Route 1 argument:

1.

Showers suspect status as an a explanation as to why Haji and others would have set up UK recipients;

2.

Non-disclosure of the role of the ‘syndicate’, and the inferential carelessness as to whether the supplier was at arms length;

3.

Non-disclosure of the two subsequent CDs:

BKA case

Rainman II

4.

Non-disclosure of the BKA background rendered the Feldman admission unfair since the Crown derived the advantage without suffering the disadvantage which would have flowed from full disclosure of the BKA background.

5.

The opportunity lost to the defence of exploring the role of Awaz Khan.

All of these are, we have to say, hopeless in support of a route 1 argument. As Mr Friedman accepted, an appellant cannot normally change his defence in the Court of Appeal - having not run “set-up” at trial an appellant will not normally be able to rely on set-up on appeal. In the words of the respondent: “There is no directly relevant material upon which the Pendleton test could bite”.

The fact that Showers was seen by C&E as a significant target may have been relevant if the defence had been set-up. It was not. The involvement of others (Mr Friedman’s so called “syndicate”) was irrelevant to the case presented. In any event there was sufficient disclosure to put the defendants on notice had they wished to examine the role of the so-called “syndicate”. The presence at the drugs handover of named associates of Haji was apparent on the served evidence. In the words of Mr Ashley-Norman:

... by the time of the trial, the statements revealed the presence at the handover of Bashir Ahmed, Mohammed Amin (‘the Commander’) and Abdul Gaffor, who was described as ‘Mr Ullah’s partner’. Haji expanded on these descriptions in his evidence.

Likewise the fact that the drugs were in the possession of Haji before approval by the DLOs (for a reason which Haji gave) did not help the defence.

The fact that in the German operation and Rainman 2 there were difficulties (explicable say the respondent) in identifying a recipient was irrelevant. That may have assisted any defence of set-up, but that was not the defence. Indeed the evidence on Rainman 2 tends to show the opposite:

The chronology reveals that the supplier was not previously aware, or had not previously suspected that Haji was a PI. When he became suspicious (after Haji had given evidence in the Rainman 1 trial), he refused to permit his recipient to approach the drugs.

Furthermore, if the defence had wanted to follow up other Haji operations, including the German operation, they could have done so.

We turn to Mr Shafi’s additional arguments put forward on behalf of Ahmed.

1.

Had there been disclosure of the German operation and Rainman 2, it would have been open to Ahmed to argue by analogy that the delay in Ahmed informing the authorities of the activities of Pervez Khan et al was not out of the ordinary in the world of controlled deliveries, since they can take some time to come together;

2.

Had there been disclosure of the fact that Haji was not properly authorised, prosecution Counsel could not have drawn the adverse comparison between Ahmed and Haji. In fact their position was similar since both were unauthorised.

3.

The Customs had a cavalier attitude towards disclosure as revealed by the Note at R0730. That approach infected the disclosure process.

As to 1 and 2, with all respect to Mr Shafi, they are quite hopeless. In the words of Mr Ashley-Norman:

Ahmed’s case was that he did nothing to further the conspiracy, rather he sought to delay (see summing up). The jury rejected that defence. It is fanciful to suppose a jury would have been impressed to the point of reaching a different verdict by the suggestion that delay could be seen in the BKA and Rainman 2 cases, and therefore Ahmed’s delay was not out of the ordinary.

Haji was unauthorised so far at the UK DLO was concerned. So it was that Bragg told him he was on his own if arrested (see telex R0613). However, so far as Haji was concerned, he had been given permission by Feldman. This is to be contrasted with the evidence of Dady which reveals that Ahmed volunteered what he did only after being stopped and proving positive for cannabis and opiates.

As to 3, we spent time examining the note at R0730. In the note the author uses the word “unfortunately” to describe the fact that, during the trial, junior counsel for the prosecution handed defence counsel material which showed that witness statements made by officers concerned with Ahmed’s search and interview at Heathrow on his way into England from Heathrow had omitted information which helped Ahmed. However, it is clear that the information, which related in any event to what Ahmed had said, was before the jury and no harm was done. Mr Shafi attempted to draw conclusions from the omissions adverse to the respondent. It is now too late to find out why there were omissions - there could be innocent as well as less innocent explanations. Whatever they are, Ahmed’s conviction is not thereby rendered unsafe.

We can deal with route 2 briefly. As we have said, there was no breach of any obligation to disclose. Whilst accepting that earlier prosecution statements did not reveal as much as they could have revealed and that more was revealed when Mr Leveson asked for more detail, the absence of detail comes no where near gross prosecutorial misbehaviour on the part of the DLOs or others. The security of the PI and the security of other operations may well justify a certain reticence or coyness, provided that there is compliance with the obligation of disclosure in the light of the facts of the case and the defence (if any) being put forward. Complaint is made that the Pakistan Narcotics Control Board (PNCB) was not given as much information as it should have been. Even if true, the failure to give that information comes no where near the kind of gross prosecutorial misbehaviour which might lead to a conviction being quashed.

For all these reasons we dismissed the appeals.

Mohammed Akram Beg appeared before HHJ Woodward on 9 November 1992. The original indictment, which contained a single count of conspiracy to evade the prohibition on the importation of heroin, was amended by the addition of a second count alleging a conspiracy to supply heroin. The defendant pleaded guilty.

We take the facts from the advice on appeal against sentence prepared by his junior counsel at that time.

The prosecution case was that in early December 1991, a Mr Ullah [Haji] was approached and invited to participate in a drug smuggling operation from Pakistan into the United Kingdom. Mr Ullah contacted the British authorities in Pakistan and arrangements were made to monitor the transhipment of heroin. In February 1992, Mr Ullah was given 5 kilograms of heroin and instructed to take it to Manchester. The “contact” was given as “Azam” who would quote a code number before 3 kilograms of heroin would be handed over to him. Upon receipt of full payment, the remaining 2 kilograms would be released. The operation was to be overseen by a man called Saleem who was to be contacted by telephone at Lahore, Rawalpindi or at the Taj Mahal Hotel.

On the 17 March 1992, Mr Ullah arrived in Manchester and established himself at 65 Edgeworth Drive, Ladybarn, Manchester. The heroin had been replaced by the investigation branch of C&E. The address at 65 Edgeworth Drive was wired for video and telephone recording.

Mr Ullah was given a telephone number 061 226 6934 but was unable to contact “Azam”. He was given two further telephone numbers which were later discovered to be back to back public telephone kiosks on Wilmslow Road. On the 18 March 1992, Mr Ullah finally made contact with “Azam” in a telephone conversation which was recorded. A meeting was arranged for the following day at 65 Edgeworth Drive.

The defendant arrived at 9.45 pm on the 19 March 1992. The meeting was recorded on video tape. Mr Beg left with 3 kilograms of heroin and was arrested at home. In addition to the video recorded meeting and transfer of heroin, the defendant was observed outside the telephone kiosks on the 18 March and was followed to 65 Edgeworth Drive on the 19 March. The defendant’s home at 88 Parkhill’s Road, Bury, was searched and pieces of paper containing the address of 65 Edgeworth Drive and the code number were discovered.

In interview, Mr Beg admitted that he knew it was unlawful to import heroin into the United Kingdom. He further admitted:

that he had been offered £10,000 for his part in receiving the consignment;

that he had been told to use the name Azam;

that he had been given the secret code number;

that he had asked for a “sample” at the meeting with Ullah on the 19 March;

that he had made arrangements with the people in Pakistan to use a false name, to find two public telephone kiosks and to arrange a secret meeting with the courier.

The strength of the evidence in this case was overwhelming.

We agree that the strength of the evidence in this case was overwhelming.

Later in the advice counsel turns to the mitigation:

The judge accepted that there was “an element” of entrapment in this case. Mr Hussain QC drew the court’s attention to the complicity of the man Ullah in the present case. He was a professional smuggler playing the British authorities who are rightly anxious to detect smuggling operations. However, it was doubted that the offence would ever have been committed by the defendant without the approach from Pakistan and the element of entrapment which Ullah lent himself to. It is rare that such couriers are ever involved in the detection, arrest and prosecution of professional importers.

...

The judge undoubtedly addressed all the mitigation which was advanced on behalf of the defendant by Mr Hussain QC. The substantive grounds of mitigation – the effect of the Criminal Justice Act 1991, the plea of guilty and the element of entrapment – were dealt with by the judge in some detail during the course of his sentencing remarks and it is clear, in my view, that substantial credit was given for the mitigation in this case.

The length of sentence, however, had to be such as took into account the nature of the offence. The quantity of heroin involved was substantial and the defendant undoubtedly knew the risk he was running since, during the meeting with Ullah on the 19 March 1992, he referred to the length of sentences detection in this country involved.

The appellant was advised not to appeal against the sentence of six years’ imprisonment and he did not do so.

It appears that the first time that the prosecution would have been aware of the suggestion that there had been an element of entrapment was during mitigation. If the defence had wished to do so, they could have earlier asked the prosecution to disclose any material which could support the mitigation. The defence did not, so it appears, do so. Notwithstanding this, Mr Friedman submits that there was an obligation in this case to disclose material which might assist the mitigation when the nature of the mitigation became clear. We do not agree.

Mr Friedman ultimately accepted that the only possible route available to the appellant was route 2. He submitted that the operation was presented as a genuine CD when it was not and that therefore there had been gross prosecutorial misbehaviour. Given that the appellant pleaded guilty to conspiracy to supply heroin, we have some doubts whether the appellant can pray in aid any alleged prosecutorial misbehaviour in Pakistan. We shall assume that he can.

We asked Mr Ashley-Norman to demonstrate to us (if he could) that it was a genuine CD and, in particular, to show that the supplier, Saleem, was unaware that Haji was acting as a PI. At that point Mr Friedman rose to his feet to concede that, as far as Haji was concerned, it was genuine. That was an important but fully justified concession. He submitted however that Saleem and Soofi were in it together and that Soofi was in substance a participating informant.

Mr Ashley-Norman submits that the appellant was identified as the recipient before importation. He points to the fact that Haji gave evidence that he had spoken to the appellant (using a false name) from Pakistan and that the appellant confirmed that he wanted 5 kilos of heroin. Mr Friedman said that this evidence was challenged and submitted that the respondent could not rely on it because the prosecution had accepted a plea to count 2. We do not agree. When examining whether there has been gross prosecutorial misconduct this Court is not restricted in the way Mr Friedman suggests. Mr Ashley-Norman also points out that in interview the appellant admitted having spoken with Haji in Pakistan on one occasion. In his interview, Beg admits having discussed the arrangements with “Khan” over the previous two or three weeks. Saleem, the supplier, was known as Saleem Khan.

Mr Ashley-Norman submitted that Saleem was a genuine supplier. He wrote:

Saleem was a genuine supplier, in cahoots with neither Haji nor Soofi.

Refusal to supply BEG’s home number

When Haji was having difficulties in getting through to Beg on the telephone numbers supplied by Saleem, Haji requested Saleem supply him with BEG’s home number (see controlled call by Haji to Saleem at J0186).This Saleem refused to do, but he told Haji that he had threatened Beg that if Beg was not in place to receive the next telephone call, Saleem would give Haji Beg’s home number to enable Haji to call him direct:

“At night I had also told him/them I said this I said, “…swears… if you don’t go there isn’t it/right at eight o’clock then we will give the house/home number to Haji. He will (ie call) you direct, and …””.

It is apparent from Beg’s interview that Saleem had BEG’s home telephone number, see J0102: ‘[Khan] phoned my house’.

Haji accepted this and did not press his demand for Beg’s home number. Given his participating informant role, Haji’s wish to obtain a home number for Beg had an obvious motive. Had Saleem shared Haji’s true motive, there would have been no compunction in supplying the number.

Reluctance to supply true name

At an earlier stage in the UK proceedings, Saleem had been reluctant to supply Haji with Beg’s true name. He did so only after the repeated failed attempts by Haji to get through to Beg. It is to be inferred that Saleem supplied the name out of frustration when he volunteered to Haji that ‘his own name is Akram’. The context of the call is that should anyone who answers the telephone not know the name Azam, they should be asked to whether Akram was there. This Haji subsequently attempted. Had Saleem shared Haji’s true motive, there would have been no compunction in supplying Beg’s true name.

The Fact of Withholding BEG’s true Details

The obvious inference to be drawn from Saleem not supplying Haji with the true details for Beg, either initially in the case of the name, or at all in the case of the number, is that Saleem was attempting to protect Beg. Such protection is inconsistent with Saleem being in cahoots with Haji. The same point can be made in respect of Soofi, to whom there is no evidence that Saleem had any conversation.

The ‘Saleem Syndicate’

The circumstances of the introduction of Saleem to Haji render fanciful the suggestion that they should have been acting in league to contrive a false controlled delivery. Haji first met with Lal Bahadur, who fled, handing the case over to Sher Bahadur, who later introduced Haji to Saleem. Saleem in turn introduced Haji to Aziz and Khalid, the latter of whom would handover the drugs.

The theory does not accommodate all the other members of the Saleem ‘syndicate’. If they were not parties to the contrived delivery, the theory requires Haji to have been passed between the Bahadur brothers, both intending there to be a genuine importation, to Saleem, who loaned himself to the deception, and back on to Khalid and Aziz, who believed the importation to be genuine.

If on the other hand, the ‘Saleem Syndicate’ were party to the contrived delivery, it is surprising that they were reluctant to hand over the heroin when first expecting to do so because of ‘police checks’ in the area (see Haji’s statement). Furthermore, they must have been excellent actors - Beg in the room tape said that he had spoken twice with Saleem and also with Aziz.

Meanwhile the Haji ‘syndicate’ is said to have comprised Haji, Soofi and possibly Mohammed Amin as well.

The Final Telephone Call

When Beg collected the drugs and departs, Haji placed a telephone call back to Pakistan (see J0200 et seq). He spoke with Sher Bahadur and his first question is to ask where was Ghulam Mohey-ud-din, (one of the names used by Soofi). Haji was told that Soofi had gone home, having fallen off a roof the previous day. Haji therefore knew that his associate was safe. He then passed the information that the drugs had been handed over to Azam. The conversation then passed to a topic which Haji must have appreciated was a futile one, namely the arrangements for the receipt by Saleem of the payment for the drugs.

The concern for Soofi is instructive. It would have been unnecessary if Haji and/or Soofi were in cahoots with Saleem and his syndicate.

The discussion concerning the payment is instructive. It would have been unnecessary if it was known by Sher Bahadur that there was to be no payment.

The fact that he was expecting and wanting payment is a significant counter-indicator of knowledge of a controlled delivery.

It is submitted that the suggestion that Saleem was ‘in it together’ with Soofi is simply unsustainable. It has been advanced without a shred of evidential support.

Mr Friedman relies on an enigmatic passage in a 1995 interview with Soofi (G414-418). Soofi is perhaps referring to the appellant as “my man”. But Soofi also says that, when Saleem’s man was arrested, Saleem had caused a lot of problems to Soofi. If Soofi is talking about the instant case (and Mr Friedman is not sure), that could support the fact that Saleem did not know that this was a CD.

Mr Friedman goes no further in his written document “Note on Core Issues” than to say that there is some room to doubt whether the suppliers were genuine.

Mr Friedman relies on the absence of disclosure or reference in the witness statements to a host of details about the various persons involved in the transaction to support his route 2 argument (which he sub-divides into two categories, actively misleading the Court and gross prosecutorial misbehaviour). He is to be commended for his grasp of the detail but neither singly or cumulatively does the omitted detail come anywhere near showing that the conviction for conspiracy to supply was unsafe.

We give one example of a detail which Mr Friedman submits ought to have been disclosed. In 1988 when the person we call Haji was introduced to a DLO, Haji was using the name Bahadur. There was clearly no obligation to disclose that fact (if remembered) in the light of the admissions and plea. How then, we ask, can it be categorised as gross prosecutorial misbehaviour (whether by misleading the Court or otherwise) to have omitted that detail in the witness statements? It comes no where near the kind of misbehaviour which could lead to the quashing of a conviction. It is said that the witness statements should have gone into much greater detail about Soofi and Amin, the “syndicate” to use Mr Friedman’s description. Amin and Soofi were, it is said, acting as unregistered, unmonitored PIs. For reasons which we have given elsewhere in this judgment (paragraph 56), the failure to give more detail comes no where near satisfying route 2. Haji was supervised and the fact that Haji used associates to help him (a fact disclosed in the prosecution case papers) does not make this conviction unsafe.

For these reasons the appeal is dismissed.

On 15^th November 1994 the trial of Mohammed Kurshid Khan (“Khan”) and Martin John Ryan (“Ryan”), the appellants, together with two other defendants, Narajhan Singh Seerha and Alan Mackin, began before His Honour Judge Owen at the Crown Court at Manchester. They were all charged on the first count with conspiracy to import a controlled drug of class A (heroin), and on the second count with conspiracy to supply a controlled drug of class A (heroin). Both counts related to the same batch of heroin emanating from Afghanistan and imported into the United Kingdom via Pakistan.

On the fifth day of the trial, before the time came when he could have given evidence, Khan absconded. The trial continued in his absence. Ryan gave evidence. At the conclusion of the trial, Khan was convicted in his absence of conspiracy to import heroin; Ryan was found not guilty of that charge, but guilty of the conspiracy to supply. The other two defendants were acquitted.

There were unsuccessful appeals against conviction, which were determined on 25^th May 1995. The prosecution of the appellants in this case arose from a controlled delivery codenamed “Operation Fleur-de-Lys”.

Mr Shafi’s submissions on behalf of Khan in this appeal are made broadly under two headings. First, it is said that there was a significant failure in disclosure. Had disclosure been properly made, matters would have been revealed to the defence which, if explored in evidence, might reasonably have affected the jury’s decision to convict. (Pendleton). Fresh evidence arising since the trial serves to confirm that the conviction is unsafe. Secondly, it is said that the failure in disclosure was so substantial as to have amounted to serious prosecutorial misconduct. The consequence of keeping potentially relevant matters from the defence was to mislead the Court about the origins of the operation, the relationship between the supplier or suppliers and the informant, their relationship with C&E, and the identification of other potential recipients in Operation Fleur-de-Lys. Had the Court been aware of these matters at trial, there would have been a finding of abuse of process.

The case of Ryan on appeal relies essentially on the same matters, although his defence at trial was separate and distinct from that of Khan. On Ryan’s behalf it is submitted by Miss Brander that, even though he was acquitted of being concerned in the importation, nonetheless events in Pakistan, and matters relating to the origins of the supply to Khan, were directly relevant to Ryan’s defence, namely that he had been tricked, either by those who had tricked Khan, or by Khan himself.

It follows therefore that the ways in which the case was put by each appellant included both “route 1” and “route 2”. It became clear in the course of submissions that, on the particular facts of Fleur-de-Lys, the issues relating to the two routes were substantially overlapping and interdependent, in that the nature and extent of non-disclosure, and the consequent disadvantage to the defence of the appellants which was said to have resulted, formed the basis of the submissions relating to each “route”.

In addition, there is a separate point, which we gave Khan leave to present in person, based on the alleged falsification by C&E of covert video surveillance evidence, in order to conceal the extent of the heroin allegedly delivered to the appellant.

The prosecution’s case was that Operation Fleur-de-Lys involved a “controlled delivery” of heroin from a supplier in Pakistan who genuinely sought to import the drug into the United Kingdom for receipt by an existing willing purchaser. DLOs employed by C&E were alerted to the proposed delivery by the participating informant known as “Haji” (a man familiar from other operations). In late March 1993, Haji had been told by a friend that a man called Ali Shah wanted somebody to take 5 kilos of heroin into the UK. The friend had given Haji a piece of paper, received from Ali Shah, on which three UK telephone numbers had been written. Haji had been told that the recipient in the UK was to be Mohammed Kurshid Khan.

On 1^st April 1993 Haji went to see DLOs Bragg and Ansell at the British High Commission in Islamabad. They told Haji to try to find more information about Ali Shah and Khan. Haji arranged with his friend to meet Shah again. On 20^th April there was a meeting in Peshawar at which Shah offered Haji a substantial courier’s fee to carry the heroin to the UK where he was to be paid by Khan. On 22^nd April Haji went back to the High Commission. He told Ansell about the meeting with Shah, and was told to maintain contact. Shortly afterwards Shah contacted Haji via the friend and Haji agreed to meet him at the friend’s house. Shah told him he had spoken to Khan and suggested that Haji make contact directly, which Khan had declined, not wishing Haji to be given his number. Khan wanted Haji to phone Shah in Pakistan after his arrival in the UK with the drugs. Haji would then give his UK number to Shah, thereby enabling Khan to contact Haji himself.

Haji met Bragg on 29^th April and was told that Bragg had received authority from the Pakistan authorities to collect the drugs, and that he, Haji, should arrange to pick them up himself. Haji arranged with Shah to pick up the drugs on 7^th May. On 7^th May Haji and Bragg met two of Haji’s friends outside an Afghan refugee camp. Haji left Bragg’s vehicle and joined his friends in another vehicle to drive to Peshawar. There they met Ali Shah who had an armed bodyguard. Shah handed Haji a black plastic shopping bag, which Haji and his friends took back with them and gave to Bragg. It contained five plastic bags of heroin wrapped in Hessian-type cloth.

On 9^th May Haji met Ali Shah at Haji’s friend’s house, and discussed the full name Haji was to use when dealing with Khan. On 11^th May at a further meeting there was discussion about details of Haji’s flight to the UK. They met again on 14^th May. At this meeting Haji asked for a contact telephone number in Pakistan for use when he reached the UK. Shah gave him the number Peshawar 49293 and told him that he need only collect his fee as courier from Khan. Shah would himself arrange to collect the price of the drugs from Khan.

On 18^th May a customs officer took the drugs to the UK. Haji flew to the UK on 25^th May and was installed in a house in Thornton Avenue which had been fitted with video and audio surveillance equipment. Haji then made telephone contact with Pakistan and the recipients in the UK. Arrangements were made for the latter to come to the house. On 26^th May the two appellants and Seehra arrived at the house. Ryan insisted that Haji disconnect the telephone and unplug the television. Haji, knowing that this would disable the surveillance equipment, refused Khan’s offer of payment in travellers’ cheques and arranged that he should return the following day with payment in cash. On 27^th May, the three men again came to the house to buy the drugs. The meeting was video recorded. Khan gave Haji £9,000 in cash, having unsuccessfully tried to persuade him to accept travellers’ cheques in payment. Haji then took three kilos of heroin, contained in three plastic bags, from a rucksack and gave them to Ryan, who hid them in the arms of his coat. (These bags were three of the five previously referred to, all of which had been brought into the UK.) The three men then left the house.

Khan and Seehra were arrested as they left the house, but Ryan evaded arrest, and was later detained on 24^th September 1994 at his brother’s house. Meanwhile, the three bags of heroin had been recovered from Ryan’s coat which was in the car used by the appellants, and re-united with the other two bags. After that, the five bags were delivered to the forensic science laboratory.

The recordings of the transactions at Thornton Avenue were played at trial. We also viewed them. The prosecution submitted that, whilst Haji played an introductory role as participating informant, the officers’ observations, the pattern of telephone calls and the video and audio recordings clearly demonstrated the appellants’ involvement in the offences.

There was no evidence in support of Khan’s case since he had absconded and thus gave no evidence. The case advanced on his behalf in cross-examination was that a man known to him as Ali Shah had arranged to import a quantity of gold to Khan in the UK; that someone in Pakistan had learnt of Khan’s involvement in the gold importation, and decided to set him up by substituting a quantity of heroin for the gold, using Haji as a courier. Alternatively, Haji himself was the supplier. On either basis, the credibility of Haji was challenged.

Ryan gave evidence that he had had a relatively recent and legitimate business relationship with Khan as a result of which he still owed Khan money. Khan telephoned him on 25^th May, asking him to meet him and bring his car, since there was a transaction in which Khan was to buy a quantity of gold. When he took possession of the packages he thought they contained gold. Haji put them in the sleeves of Ryan’s coat. Ryan had unplugged the telephone and the television because Khan had told him to. He provided an innocent explanation for the presence of significant telephone numbers on a newspaper found in his car. He did not understand what was happening in the house because the others were speaking in another language. He did not know that heroin was being delivered.

On the evidence, the role of the co-defendants was relatively peripheral, and having each given evidence, they were both acquitted.

It follows from this summary of the facts that the case against each appellant that he was knowingly involved in a transaction involving the supply, and in Khan’s case the importation, of heroin was overwhelming, not least because of the surveillance evidence.

It is submitted by Mr Shafi on Khan’s behalf, supported by Miss Brander for Ryan, that there was undisclosed material which gave grounds for belief that a man called Nowshad was involved in the supply of the relevant consignment of heroin to Khan, either in addition to, or instead of Ali Shah. We now summarise the principal matters relied on in this context.

Reliance is placed on a note made by a DLO on 27^th July 1994 of a conversation with Haji, which includes the following:

“Discussed ( Haji’s) situation in Pakistan since returning from Germany last week. He has seen Nowshad who is the man behind the problems two or three times. A couple of days ago a tribal jirga was held. Azhar Gull and Alam Gul – and Ali Shah were against him. They said that he was working for Customs. (Haji) denied it. He said, when the 3 were arrested a fourth man – the driver – had walked away. He must have been working for Customs. Haji said the jirga had found that no blame rested with him, and there was nothing Nowshad or Ali Shah could do even if proof were brought…”

Reliance is placed on the fact that Nowshad is shown to have been involved in an earlier proposed delivery of drugs which was known to C&E, and which they believed to be a set-up for an ulterior purpose, rather than a “genuine” controlled delivery of drugs. An internal C&E fax of 10^th November 1992 referring to a number of issues includes:

“Re telecom 9.11.92 re CI Nowshad and 87 Devon St, Werneth Oldham. This is H/A for Yousaf Khan …. who was convicted at Man CC on 12.7.91 involved in 2.5 kg importation….and was followed to 87 Devon St where he was arrested. Yousaf always protested innocence. Sentenced to 12 years. His appeal against conviction and sentence will be heard on 14.12.92…..There is a distinct possibility that this importation is a set up to support Yousaf Khan’s appeal.”

It seems that C&E suspected that a delivery of drugs to Yousaf’s address whilst he was in prison serving a sentence would be used to cast doubt on whether Yousaf had genuinely been involved in the importation leading to his conviction. Fearing it would be a set-up, they refused therefore to allow the delivery to go ahead. It is submitted that a striking feature of this earlier proposed delivery is that the recipient was named as “Kurshid”. A note in a DLO’s notebook dated 11^th November 1992 says “given UK address for Kurshid 87 Devon Street.” A fax of the 18^th November makes it clear that a man called Kurshid was to have been the recipient in the aborted delivery, and that the informant proposing the delivery was very disappointed with its cancellation. There is no direct evidence that this Kurshid was the appellant Mohammed Kurshid Khan, or that the appellant was the intended object of the earlier operation. But it is submitted that there were grounds to believe that he may have been the same person as the appellant; thus there was all the more reason to disclose details of that operation to the defence. These grounds included not only the similar name, but his age (in his fifties), his previous drugs convictions, and the fact that a subsequent search of relevant telephone numbers revealed the subscriber at the Oldham address to be “Mrs N. Khan”, consistent with her having been the wife of the appellant Khan.

Had these details been disclosed, the defence would have had material which would have suggested that Khan had already been proposed as recipient in an operation which C&E suspected might be a set-up. Further, and as a separate complaint, Nowshad, as a supplier in the Fleur-de-Lys operation, was known by C&E to be compromised, not only by his involvement in the previous proposed delivery, but by his close connection with Haji. In further notes of a DLO dated 2^nd June 1994, Haji was said to be a friend of a “Haji Shamal” who was, in another note of 2^nd July 1992 said by Haji to be the father of Nowshad, both father and son known by Haji to be “big drugs suppliers”.

There was fresh evidence to support the involvement of Nowshad, in the form of a statement by Haji in an interview with the CCRC in February 2005, that “Nowshad” was the man who introduced him to Ali Shah in Fleur-de-Lys. He described Nowshad as a “double crosser”. Further, in December 1994, after Khan had absconded to Pakistan and been convicted in his absence, Haji is noted by a DLO as having told him that Khan had instigated a jirga to seek redress for his losses as a result of Fleur-de-Lys. Khan is reported as having identified the suppliers as Ali Shah and “Haji Schamall” – Nowshad’s father.

It was argued that there were further failures in disclosure and grounds for criticism of the respondents’ conduct of the case at trial which affected the safety of the conviction. These included failure to disclose material which indicated that there had been previous intended recipients in the operation, namely a “Mr S Gill” and a Kuwaiti business man; and material which suggested that Haji had failed to produce a recipient in the operation known as “Rainman 2”. Reliance was placed on other material affecting Haji’s credibility, for example: the close similarity between the facts of Fleur-de-Lys, and Operation Pastie, which the respondents have conceded was fatally flawed; and the failure to reveal that a man called Abdul Ghaffor had been present at the handover of the drugs in Pakistan, and that this man to the knowledge of C&E had been involved with Haji in previous operations, acting in effect as an unregistered and unmonitored participating informant.

Both counsel submitted that some or all of these matters would have given a basis for the defence to pursue the contention that Operation Fleur-de-Lys was far from being a proper or straightforward controlled delivery. Under Route 1, they said that, had the jury known the full picture, it might reasonably have affected their decision. Under route 2, it was said that the extent and nature of the non-disclosure, and in particular the DLOs’ knowledge of the significance of Nowshad’s involvement, showed that there had been deliberate and gross prosecutorial misconduct.

Mohammed Kurshid Khan presented a further argument in support of his appeal, which we gave him leave to present on his own behalf, since it became clear that he and Mr Shafi were not in agreement on the topic. Both Khan and Mr Shafi were content that we should proceed in this way, since the alternative would have been for Mr Shafi to withdraw from the case entirely, which would have been in nobody’s interests, least of all the appellant’s.

Khan gave evidence in support of his argument. He said that, contrary to Haji’s evidence, and to the prosecution case, all five bags of heroin had been supplied to Ryan, rather than three. The other two bags had been surreptitiously separated afterwards from the three said to have been recovered. These facts were deliberately and dishonestly concealed by tampering with the video recording of the transactions at the house. Khan had had possession of the original, unaltered video recording. Having fled to Pakistan, he entrusted it to Nowshad for safe keeping. When asked why it was not produced for the purposes of the present appeal, he did not reply directly, but said that if he was given a large sum of money, he could get it back. In cross-examination he was asked about the identity of alleged suppliers; he agreed that he had spoken to Ali Shah; but then denied it, saying that he had spoken with Nowshad. He said he had Ali Shah’s (telephone) number. Asked about why C&E might want to do as he alleged, he said that they didn’t care what they did with the heroin.

The respondent’s case was that Operation Fleur-de-Lys had all the hallmarks of a genuine controlled delivery; that such departures as there may arguably have been from the “paradigm” did not alter the validity of that proposition; there had been no significant failure to disclose; insofar as there might be shown to have been any failure in disclosure, it would not have affected the jury’s verdict, and certainly did not amount to prosecutorial misconduct. As regards the point taken by Khan on his own behalf, his evidence on the issue was wholly lacking in credibility, and should be rejected.

The respondent relied on the identification of Khan before the drugs were collected in Pakistan. The DLO’s notes name him in April 1993 as “a Pathan, been in the UK many years, and has apparently asked Ali Shah to send him some…” (drugs). The following month he is reported by name as having “been arrested 2 or 3 times before for involvement with drugs” which again applies to Khan, who had twice been convicted of drugs offences, and twice successfully appealed. The telephone numbers supplied by Haji for Khan could all be connected with him. According to evidence at trial, Khan had no home telephone number.

The respondent submitted that there was ample evidence to confirm that Ali Shah was a real person at arms length from Haji. His details were supplied by C&E to the Pakistani authorities. Khan was in possession of a piece of paper, produced at trial, with his name on it. The case advanced on Khan’s behalf at trial was that Ali Shah was a gold dealer, not a drugs supplier. Ali Shah had not, to the respondent’s knowledge, been involved in any other drugs transactions. The respondent, while accepting that Khan’s case had been put, in the alternative, on the basis that Haji himself was the owner of the drugs, invited the Court to reject this alternative basis, for a number of reasons. These included the fact, reported by Haji, that Ali Shah (among others) had convened a jirga to determine whether Haji was in the pay of C&E, and was persuaded that he was not. It also included powerful evidence at trial of telephone contacts in the course of the conspiracy with a person known to all parties as Ali Shah.

After the trial, Haji reported that Khan sought financial redress from Ali Shah and Haji Schamall at another jirga for his losses arising out of the Fleur-de- Lys operation, an event which if true, the respondent submits, provides strong retrospective confirmation of the existence and role of Ali Shah.

On the question of Nowshad’s involvement, it was submitted that there were no grounds for thinking that he was a supplier. He may have had some involvement or interest in the transaction, as demonstrated by his participation in the jirgas. But even the suggestion that he was in some sense a broker or introducer, or had some stake in the deal, does not assist the appellants. There is no reason at trial, or now, to think that he knew that Haji was a participating informant; or if he did know, that he made Ali Shah aware of that. On either basis, there was good reason to think that he would not have told Ali Shah. Yet more important, argues the respondent, there was nothing reasonably to have put the DLOs on enquiry that any previous activity of Nowshad had any relevance.

As regards the previous proposed delivery involving Nowshad, and rejected by C&E as a possible set-up, the respondent submits that there was no reason to think that the “Kurshid” referred to was the appellant Mohammed Kurshid Khan. The earlier “Kurshid” was said to come from a different town; the supplier was different; the quantity was different; there was no reason on examination of Khan’s passport to think that his movements corresponded with the reported movements of “Kurshid”.

The respondent accepts that there is material suggesting a link between Khan and the Oldham address. (Some of it was fairly drawn to our attention by Mr Bird.) But Mr Bird submits that disclosure of such a link could hardly have assisted Khan at trial, and would not conceivably have been deployed on his behalf. The Oldham address was that of a convicted drugs importer or dealer, and the link would have shown Khan as a proposed recipient of heroin – not necessarily the victim of a set-up. In other words disclosure would have made his conviction more rather than less likely.

The respondent submitted that the further matters referred to at paragraph 99 above do not separately or collectively support the appellants’ allegations of material non-disclosure or of prosecutorial misconduct. As regards the separate allegation of tampering with the video evidence, it is unnecessary to add to the summary already given of the respondent’s case.

In considering the appellants’ submissions, it is in our judgment essential to bear in mind that a fundamental issue is whether this operation involved a genuine controlled delivery. Material of which the DLOs were aware, and which tended to undermine the prosecution case on that point, ought to have been disclosed, including matters relating to Haji’s credibility on the issue. However, the prosecution were not under a duty to conduct an extensive trawl of material relating to past transactions, whether involving Haji or otherwise, to see whether there was anything which might support a possible defence which might be advanced by Khan. Experience of drugs delivery operations shows that the names of many people are mentioned as having some connection with, or as having been in the company of, the principal players in the operation. In the absence of any specific defence advanced by a defendant, it would be unreasonable to expect the prosecution to explore the history and antecedents of every name mentioned in the course of their investigations, in case some connection was revealed which might be of theoretical use to the defence.

In relation to Ryan, any defence which might have been available to him arising from the issue of the genuineness of the controlled delivery would extend no further than that of Khan: Ryan’s defence was an assertion of his lack of knowledge about the nature of the goods Khan was asking him to assist with; he could not, separately from Khan, attack the prosecution case on controlled delivery. In the event, he was, as we have said, acquitted of the importation charge. We accept however, that if there is substance in the grounds advanced on Khan’s behalf, the fact that he was acquitted of the importation charge should not prevent Ryan from relying on them.

The difficulty faced in advancing the submissions on this appeal on the basis of non-disclosure is that, until Haji came to be cross-examined, the precise nature of Khan’s defence was unknown to the Crown. It was only at that stage that it was advanced as a positive case that Haji was involved in setting up Khan by duping him into thinking that the consignment to be delivered was gold, not heroin. This suggestion, in the face of covert video and audio evidence, and all the other facts, can only be described as far-fetched. Shortly after it was made, and before the time came for Khan to give evidence, he absconded to Pakistan. Thus no evidence was given in support of the defence.

It follows that, prior to the cross-examination of Haji, the prosecution could not be criticised for failing to disclose matters which could support Khan’s defence. Should the prosecution reasonably have concluded that the material now relied upon undermined their case? We are not persuaded that they should have done. There was no reason to suppose that Ali Shah was other than genuinely involved as a supplier in the Fleur-de-Lys operation. He is referred to in Haji’s information as recorded by the DLOs. There was support for the existence of Ali Shah as supplier which relies only to a limited extent on Haji; in particular the series of telephone calls involving Haji, Khan, Seehra and the man referred to as Ali Shah. Seehra knew the name Ali Shah, and mentioned it before Haji did. Unless this was an elaborate charade, it points to Ali Shah being a real person, and confirms his involvement as a supplier. We accept Mr Bird’s submissions on this point. In our judgment, on analysis of the whole picture, it is inconceivable that there was an elaborate charade conducted by Haji.

The DLO’s notes quoted above confirm that Haji was telling him that Nowshad was causing him problems: but the tribal jirga convened to investigate what had gone wrong with the delivery was apparently concerned about whether Haji was working for C&E, and found “that no blame rested with him”; and further that “there was nothing that Nowshad or Ali Shah could do even if proof were brought”. None of this was consistent on the face of it with Haji being involved with the suppliers, or with him believing the suppliers to be involved in anything other than a genuine supply to the UK recipient. Nor would it be clear that Nowshad’s role in “making difficulties” for Haji gave rise to material which might undermine the case against Khan. In itself, it would not have led the DLOs to believe that Nowshad was a supplier, still less that as a supplier he was in league with Haji to make mischief for Khan.

Indeed, two aspects of Khan’s case as put at trial, and as supported by his evidence before this court, give the lie to the suggestion that Nowshad rather than Ali Shah was the real supplier, and was intent, with Haji, on “setting up” Khan. The first is Khan’s case, advanced at trial, that Ali Shah, or a man calling himself Ali Shah, was responsible for a proposed supply of gold to him, which led to an attempt to trick him into accepting heroin on the pretence it was gold. This implies an acceptance by Khan of Ali Shah’s existence as a supplier, albeit either a duplicitous one, or a supplier of gold.

The second aspect arises from Khan’s evidence before us about the location of his videotape of the covert video surveillance. This assumed considerable significance. Khan asserted that his videotape proves that the videotape shown at trial has been tampered with, in that it would have shown that five rather than three parcels of heroin were handed over. When asked what has happened to it, he said that he had handed it to Nowshad in Pakistan for safe keeping. Khan’s evidence about the videotapes is fanciful. In the course of presenting this part of his case to us, he waived privilege, and disclosed the proofs of evidence taken from him by his solicitors at trial. They speak of three parcels being handed over: there is no mention of five. The evidence that three were handed over is overwhelming, not only from the evidence of Haji, but also the officers and the forensic scientists. We are quite satisfied that the story about five parcels is a recent fabrication in a dishonest attempt to bolster Khan’s appeal. But the significance of the story in the context of Nowshad’s role is that it shows that he was a man trusted by Khan and to whom he would turn in a matter of vital importance, having absconded in the course of his trial. That is wholly inconsistent with any notion of Nowshad’s involvement in setting up a bogus delivery with Khan as the innocent victim. It is however wholly consistent with Khan having been in earlier genuine contact with Ali Shah, the supplier; and with Ali Shah and Nowshad having been suspicious, on their own behalf and no doubt on Khan’s, about the role being played by Haji, as shown by Haji’s report of the jirga.

When, having given evidence, Khan was asked whether he wanted to add anything, he asserted that Nowshad, not Ali Shah, was the supplier. This was not put on his behalf at trial, despite the fact that Nowshad’s role was specifically mentioned in Khan’s proof of evidence.

It is against that background that we consider the possibility that Khan was the proposed recipient in the earlier delivery proposed by Nowshad, which the DLOs suspected might be a set-up. For reasons already given, we do not think that the DLOs were at fault in failing to disclose the material relating to the earlier delivery. Even after Khan’s cross-examination, the need to research and disclose material relating to Nowshad would not have been apparent. As is now clear from Khan himself, he knew Nowshad well. Had anything concerning Nowshad been of potential benefit to the defence, it would no doubt have been explored at trial – but nothing was said about him at trial.

In hindsight, the possibility arises that Khan may have been the “Kurshid” at the Oldham address to whom an earlier delivery was planned by Nowshad. In the light of what Khan has told us in the course of this appeal, we are satisfied that, had the defence pursued that possibility at trial, it would have been of no benefit to him; indeed the case against him would probably have become even stronger.

We conclude on analysis that there is no support to be found for the appeal of either appellant in the material relating to Nowshad, whether under route 1 or route 2. The other points raised are in our judgment relatively less important. We do not consider that the prosecution was at fault in failing to disclose details of “Rainman 2”. There was nothing in those details which tended to show that Haji was prepared to foist drugs on an unwilling recipient. The material available showed him to be acting as one would expect a genuine participating informant to do, but the operation was aborted for other reasons. The court was in our view not misled about the number of operations in which Haji had participated. As regards the previous intended recipients in Fleur-de-Lys, their existence did not in our view undermine the prosecution case nor assist any foreseeable defence. The comparisons sought to be made with the packaging and purity of the drugs in Operations Pastie and Jacinth respectively do not undermine the prosecution case and are in any event of little or no significance. The failure to disclose the name of Abdul Ghaffor as being a person present when the drugs were handed over is also of no significance. The jury were told by Bragg that one of those present had also been present in the course of Operation Pastie: thus the defence had the benefit of any point that arose relating to Abdul Ghaffor. On any view, he played no more than a minor, if any, role in Fleur-de-Lys.

Accordingly, in our judgment, there was nothing in the undisclosed material relied on by the appellants which, had the defence been able to deploy it, might reasonably have affected the jury’s decision to convict. Nor is any prosecutorial misconduct established. There is no fresh evidence which affects either issue to the advantage of the appellants. However, by way of footnote, we refer to fresh material which tends to confirm Khan’s guilt. He is named as the supplier in Operation Notorious, after he had absconded to Pakistan. Having sought redress from the jirga for his alleged losses arising out of Fleur-de-Lys, he then, according to material we considered in the appeal of Umar Masud, engaged in a drugs delivery conspiracy which bore similarities to Fleur-de-Lys, save that in that case he appears to have involved himself in the supply rather than the receipt of drugs.

For all these reasons, the appeals of Mohammed Kurshid Khan and John Martin Ryan against conviction were dismissed.

Between 10^th and 29^th July 1996 this appellant was tried before His Honour Judge McHale and a jury at the Croydon Crown Court on an indictment alleging that he had been knowingly concerned in an attempt to import 5 kilos of heroin into the UK. He was convicted and sentenced to 13 years imprisonment.

On 30^th September 1996 the appellant sought an extension of time to seek leave to appeal against conviction and sentence. His applications were refused by the single judge on 31^st January 1997 and by the full court on 17^th November 1997. On 8^th October 2001 the appellant made an application to the Criminal Cases Review Commission which, on 11^th April 2006, referred his case back to the Court of Appeal.

Some of the personalities involved in this case, which proceeded as Operation Notorious, were involved in Operation Fleur-de-Lys. Haji using the name Arif, was again the P.I. and his partner Soofi was also involved. Mohammad Kurshid Khan, having fled his trial in November 1994, returned to Pakistan. He would, of course, be capable of recognising Haji having met him in the controlled house in Manchester on 26^th and 27^th April 1993 and, like other defendants in the Fleur-de-Lys trial, having seen Haji give evidence in court.

On 4^th December 1994 Haji visited the British High Commission in Islamabad and told DLOs Barker and McElligott that Mohammad Kurshid Khan had returned to Pakistan bringing with him a copy of the prosecution papers in both Operation Rainman, including the video, and Operation Fleur-de-Lys and that he had approached a tribal Jirga to seek financial recompense for his lost consignment. Haji had been taxed about the papers from the two controlled delivery operations and had claimed that they were forgeries but he foresaw some difficulty in explaining away the video. This was reported to London in a telex number 331/94.

On 9^th January 1995 Mohammad Kurshid Khan telephoned the British High Commission and said that he wished to give himself up; his lawyers had started the appeal process and he felt he had been set up by Haji (telex number 4/95).

On 19^th January 1995 Mohammad Kurshid Khan again telephoned the British High Commission and demanded that the Commission pay for his airfare to the UK, that he be given bail on arrival in the UK and that his passport be returned to him. He threatened to kill the customs “agent” (i.e. Haji) when he found him and also “to go to the media”. Khan was told that all he would get was a ticket back to the UK and “the courtesy coach to Strangeways” (telex 14/95).

On 13^th February 1995 Haji visited the British High Commission and told DLO McElligott that he had been approached by two men, Mohammad Siddique and Haji Jabbar with a view to his taking 5 kilos of heroin to a Pakistani man in the UK. Haji was told to obtain further information, show interest and report progress as soon as possible (telex number 38/95).

On 9^th April 1995 Haji spoke to DLO Barker about two controlled deliveries. Firstly, he gave further information about the 5 kilograms he had mentioned previously; they were ready for collection and it was intended that he take the drugs to London and then telephone Jabbar for further instructions. Haji had told the supplier that he had access to a house from where he would handover the parcel. Jabbar was not happy with this suggestion and insisted that the handover take place away from the house (Telex 81/95). The second controlled delivery of which he spoke was a new proposal. Haji had been approached by Nadir Shah through a contact named Ahmed Gul (also referred to as Gul Ahmed) to arrange a delivery of 30 – 50 Kilograms of heroin in freight to Huddersfield. The telex reporting this approach to London (82/95) stated:

“2.

There are indications that [Haji] might be the subject of a set up by Kurshid Khan who absconded from Operation Fleur-de-Lys in Manchester last August.

3.

[Haji] has been warned to take no further part. A friend of his has been tasked with maintaining an interest.”

This proposal was taken no further but London approved the proposal relating to the 5 kilos of heroin.

On 17^th April Haji visited the British High Commission accompanied by Soofi. By this time Soofi had met Jabbar and on a later occasion he had met a man called Namdar. The two P.I.s had managed to copy surreptitiously two names and two UK telephone numbers from Namdar’s address book and these details were provided to the DLOs. The details of the names and numbers were passed to London that day by telex (number 91/95) with the comment that Haji believed that the extracted details related to the man who was the UK end of the operation. By 18^th April the DLOs had established that one of the numbers related to Alan Mackin the acquitted defendant in the Operation Fleur-de-Lys trial and a known associate of Mohammad Kurshid Khan. On 18^th April a telex (number 92/95) containing the following paragraphs was sent from the Commission at Islamabad to the UK:

“2.

We are concerned that Khan is attempting to set up [Haji] perhaps to discredit him as a witness in advance of any appeal or to flush him out from his current residence to do him harm. We consider the latter unlikely but the former based on Khan’s call to this office far more likely.

3.

If Khan is unaware that we know of Mackin’s involvement then we may be able to run the CD but if Mackin is directly involved in the pickup then we obviously cannot use [Haji] at that time.”

Phase 1 permission was obtained on 18^th April and the drugs were collected by Haji and Soofi on 13^th April. The DLOs accompanied Haji and Soofi to the area where the drugs were to be collected but the two P.I.s left the DLOs for a period of about one hour to make the pickup. The handover of the drugs was, therefore, not observed but Haji later reported that it was Namdar who had handed over the drugs and that the instructions given to Haji were that he was to go to an hotel in the UK and then contact Soofi in Peshawar who would inform Jabbar. The UK recipient would then contact Haji within three days. The purity of the drugs ranged between 75% and 80%: 3.85kgs of pure heroin by weight.

On 4^th May, the DLOs sent a telex (number 97/95) to London which stated:

“2.

It is imperative for the reasons discussed that [Haji] is not in direct visual or voice contact with A.M. and the necessary safeguards should be in place to ensure that does not occur. We have already intercepted a visa application for an associate of Mohammad Kurshid Khan, Ahmed Gul, an Afghani who intended to travel to ….. Bradford ….. This visa application has been refused.

3.

It may be that MKK will try to return to the UK to involve himself in this case as he may be trying to set up [Haji] so as to discredit him in advance of an appeal.”

On 14^th May Haji met Barker and McElligott at the High Commission. A note of the meeting reads:

“[Haji] has had no contact with suppliers since the [handover].

He is aware that Soofi has and indeed has met Kurshid Khan. He is of the opinion that Kurshid Khan is not aware that [Haji] is the courier.

Instructions remain the same. [Haji] is to go to UK then call back to Soofi who will contact suppliers for instructions.”

Phase 2 permission was granted on 17^th May and the drugs were brought to the UK on 19^th May by a customs officer. At this time C&E anticipated that Mackin was the intended recipient of the drugs and because he would recognise Haji it was decided that an undercover police officer should make the delivery to him. Haji flew to Gatwick on 30^th May and on that day Soofi reported to the DLOs that he had met Mohammad Kurshid Khan and that he (Soofi) was of the view that Mohammad Kurshid Khan and Namdar were the partners and Jabbar was the agent. In a subsequent witness statement (30^th November 1995) Soofi said:

“Kurshid was the man in charge and definitely the brains behind the entire operation.”

On his arrival in the United Kingdom Haji was taken to Custom House from where he phoned Soofi. This conversation, like subsequent telephone calls to and from these premises, was recorded and later transcribed. Soofi said that the suppliers in Pakistan were angry because of the delay which had occurred in the operation and were accusing Haji and Soofi of having stolen the drugs. These tensions led to the involvement in Pakistan of a man named Aziz whose role appears to have been similar to that of a mediator who was to ensure that the competing concerns of the people involved were dealt with. Soofi told Haji that a man named Bashir from Kashmir was involved in the deal and that the recipient in the UK was a man called Pervaz. Soofi supplied a telephone number for Haji to contact Pervaz but the number given contained the wrong prefix and caused a delay in Haji’s making contact with the recipient. This number was not corrected until the following day. Soofi also supplied telephone numbers in Pakistan where he and others – Kurshid and Namdar – could be reached. Pervaz was the name used by the appellant before he changed his name to Umar Masud. The final handover of the drugs to the appellant took place in the early hours of 4^th June in a McDonald’s car park in Wood Green and was conducted by an undercover police officer who used the name “Tariq”. Between the initial phone call and the handover there were numerous phone calls made from Custom House. In one call on 2^nd June between Haji and Masud, Masud said he wanted “a sample”. An initial meeting between Tariq and Masud took place on 2^nd June at the McDonald’s car park. Conversations which took place in Tariq’s car were taped but conversations outside the car were not. Tariq claimed that Masud referred to heroin in these untaped conversations but the appellant denied that at trial. In conversations in the car Masud made references to “20 kilograms”, “5 kilograms” and used other words which could be interpreted as referring to drugs but the words “heroin” and “drugs” were not used.

At the handover there was a conversation outside the car between Tariq and Masud. Tariq asked if Masud was going to check the drugs and Masud replied that he would and asked Tariq to get some. Tariq then handed to Masud a white plastic canister with a sample of heroin in it which Masud took and handed to his companion Hussein who smoked it. The prosecution referred to Hussein as a “human drug testing kit”. A little later a bag apparently containing 5 kilograms of heroin was handed to Masud who put it in his car. The tape recovered from Tariq’s car records Tariq saying “give him the 5 kilos of heroin”. Hussein said in evidence on behalf of the prosecution that shortly after the handover, when the police swooped on the car driven by Masud, Masud told Hussein to throw the bag which had been given to him by Tariq out of the window of the car. Hussein did that.

The prosecution’s interpretation of the supply side of this operation is that the principals i.e. those wishing to buy heroin and import it into the United Kingdom were Mohammad Kurshid Khan and Bashir; they had approached Namdar who was the supplier of the drugs and had agreed with him a price for the drugs and for their delivery. The people involved did not trust each other and the intention was, in all probability, that the drugs would be handed over in the United Kingdom more or less simultaneously with a payment of money in Pakistan. Masud, who had been in Pakistan sometime previously and who had borrowed a significant sum of money from his father in order to purchase something in Pakistan had already paid Kurshid for the drugs.

The appellant’s case, which was set out first when he was interviewed under caution by the police, was that he had no knowledge of any trading in drugs. He had arranged with a friend in Pakistan called Bashir that Bashir would send to him samples of children’s clothing together with approximately £10,000 worth of rupees. The rupees were to come from Mohammad Kurshid Khan and they were to be used as part of the appellant’s intended money changing business. All of the conversations he had with Haji, Tariq and the people in Pakistan were concerning the clothing and rupees. The reference to testing a sample was to checking a 100 rupee note which Tariq was to give him to ensure that the money was genuine. Tariq’s evidence of unrecorded conversations with the appellant about drugs was false and the reference to heroin on the transcript of the conversation in the car was hotly disputed; either the tape had been tampered with or Tariq had used those words when Masud was not in the car.

A full transcript of the trial has not survived. The only transcript which is available is that of the trial judge’s summing up. Manuscript notes of two pre-trial hearings, the evidence of Soofi and the beginning of the evidence of DLO McElligott are also available.

The manuscript notes reveal a PII hearing before Judge Pollock on 15^th December 1995. Before the ex-parte hearing in chambers the defence set out the issues in the case and the matters upon which disclosure was sought; the appellant believed he was engaged in a business venture involving clothing and rupees and he had no knowledge of drugs. His case was that he had been set up either by those involved in the original supply of the drugs or by Haji either for his own purposes or at the behest of the suppliers. The appellant had been a police informer and this was floated as a possible motive for the set up. An application by the defendant to exclude evidence of what was referred to as “entrapment” was flagged up. The matters about which disclosure was sought included the roles of Haji and Soofi, and any rewards paid to Haji. The relationship between Haji, Soofi and DLO Barker was a matter which the defence put in issue saying that they would argue that the importation was initially inspired by Haji and C&E. The credibility of Barker was said to be at stake and the summing up confirms that this matter was raised at trial. The judge reminded the jury that the defendant’s case was that the DLOs were incompetent and dishonest.

The note of the ex-parte chambers hearing that day notes the directions made on PII; “telexes – no assistance to defence – agreed” suggests that the judge agreed with the prosecution’s submission that telexes should not be disclosed to the defence although the note does not disclose which telexes were being referred to.

Sensitive material and disclosure was further considered on 10^th July 1996 by the trial judge before the trial commenced. A manuscript note of the ex-parte hearing records the judge authorising the non-disclosure of “these three telexes”. One of the three is referred to as “81” and the judge is noted as saying that he will keep in mind the reference to access to a house where drugs will be handed over because of what he had been told by the defence. The other two telexes are not identified.

Miss Brander, on behalf of the appellant, advances the appeal on both route 1 (non-disclosure) and route 2 (abuse of process - gross prosecutorial misconduct). In this appeal as in others a central question in relation to each route is whether this operation was a genuine controlled delivery. In the context of this appeal, the operation only works as a genuine controlled delivery if Mohammad Kurshid Khan did not realise that Haji was the courier.

Miss Brander concedes that at trial the defence knew (from Soofi’s witness statement) that Mohammad Kurshid Khan was “the brains behind the operation” and (as appears from the summing up) that Mohammad Kurshid Khan was on the run from a previous operation although a reference by the trial judge in his summing up to an admission as to Mohammad Kurshid Khan’s status being made the day before the summing up tends to suggest that this became known to the defence only late in the trial.

Whether the fact that Haji was the P.I. in the trial of Mohammad Kurshid Khan was known at the trial of this appellant is not entirely clear but references in the summing up to Haji’s evidence (e.g. “I didn’t want to meet Kurshid. He had been imprisoned here in England. He followed me to Pakistan soon over the case”) indicate that it was, as do references in Soofi’s witness statement and in the transcript of the controlled telephone calls relating to the possibility of Mohammad Kurshid Khan and Haji recognising each other if they spoke on the telephone. Miss Brander points out that the summing up does not, however, make an express reference to the Mohammad Kurshid Khan/Haji relationship.

When one considers the large amounts of heroin exported from Pakistan it is untenable, Miss Brander argues, that Mohammad Kurshid Khan should by coincidence and unknowingly have chanced upon the very man to act as courier for him who had been the P.I. in the operation a few months earlier as a result of which Mohammad Kurshid Khan had been charged and in which Haji had given evidence against him. Amongst the material now disclosed but unknown at trial which undermines this coincidence theory are the following matters:

Although the judge in his summing up reminded the jury that it was the defence contention that the DLOs were “incompetent, inefficient and dishonest” he did not remind the jury of the detail of that submission or the evidence upon which that comment was based. It is, therefore, not possible to identify with certainty which matters were advanced at trial as justifying that comment. However, Miss Brander submits that the DLOs knew that Operation Notorious was not a genuine controlled delivery. In addition to the matters already referred to which go to their knowledge of the background to the operation, Miss Brander points to the content of the original witness statements of Haji and the DLOs. By the time that each came to make his statement (Haji 17^th May 1995, Barker 23^rd July 1995 and McElligott 21^st September 1995) each knew of the involvement of Mohammad Kurshid Khan in this operation but none of them made any mention of the fact that he was involved. From an entry in Barker’s notebook for 14^th May 1995 it is clear that the DLOs were aware of Mohammad Kurshid Khan’s involvement and the potential significance of that involvement and their awareness of it is highlighted in telex number 92/95 of 18^th April 1995. After prosecuting counsel expressed concerns about the role played by Soofi in this operation a statement was obtained from Soofi. The involvement of Mohammad Kurshid Khan in this operation is disclosed but its full significance is not. In Soofi’s witness statement made on 30^th November 1995 Soofi describes a meeting on 25^th May 1995, the presence at the meeting of “a man called Kurshid Khan” and his (Soofi’s) surprise at Kurshid’s presence. This, despite the entry in Barker’s notebook of 14^th May 1995 that Soofi had met Mohammad Kurshid Khan in relation to this operation.

Mr Bird, on behalf of the Crown, although accepting that the additional payments made by C&E to Haji and Soofi were not disclosed to the defence, emphasises that details of the rewards paid were disclosed. As to the two replacement passports issued to Mohammad Kurshid Khan, there is, he submits, no evidence linking their issue to the DLOs and when the falsity of Mohammad Kurshid Khan’s applications was later realised, further passports were refused.

Mr Bird took us in detail to the transcripts of the numerous recorded telephone calls in order to seek to demonstrate the genuiness of the CD and the fact that Mohammad Kurshid Khan did not know that Haji was the courier in this operation. These telephone calls, which Haji presumably knew were being monitored, contained passages which refer to the need for there to be no contact between Khan and Haji lest Khan recognise Haji. There is also reference to an occasion when they did speak to each other but disguised voices were used and recognition was, it seems, avoided.

During the course of the appeal enquiries continued to try to establish which telexes, if any, were disclosed to the defence at trial and on the afternoon of the second day of the appeal further information was received on this topic. The C&E officer who had been involved in disclosure matters at trial gave instructions that he had no recollection of any telexes being disclosed to the defence and Mr Bird had to accept on behalf of the respondents that the appeal would have to proceed on the basis that the telexes, and in particular telexes 82/95 and 92/95 which refer to the DLOs fears of set up, were not disclosed to the defence and that there had been no disclosure of Mohammad Kurshid Khan’s recourse to the Jirga.

The prosecution’s case at trial that this was a genuine importation of heroin to which Mohammad Kurshid Khan and the appellant were parties and into which Haji had intervened as a P.I. was strongly supported by the evidence which the jury heard. However, post trial disclosure has revealed detail of the background of this case of which the defence team at trial were wholly or largely ignorant and which they could not deploy before the jury in support of the defence case that the defendant had been set up. The material now disclosed is relevant to questions such as: did Mohammad Kurshid Khan use the importation of clothes and rupees by the appellant to set up Haji and in so doing set up the appellant? Was Haji party to a scheme with Mohammad Kurshid Khan to try to recoup for Khan the money he had lost in Operation Fleur-de-Lys and did that scheme involve setting up the appellant? If so, were the DLOs party to the scheme?

We have come to no conclusion on the role of the DLOs (route 2) but we are firmly of the view that, had the material now disclosed been available for the defence to deploy before the jury, the verdict of the jury might reasonably have been affected.

Accordingly, this appeal is allowed.

On 28 November 1995 Mumtaz Ahmed pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. We set out briefly the evidence from the prosecution statements.

Haji was approached on 13 June 1995 by a man named Amir Jan to take 4kg of heroin to the UK. Haji passed this information to DLO Barker on 18 June 1995. Haji again met Amir Jan on 21 June 1995, and Jan gave him his (Jan’s) phone number: 210848. (It is submitted by Miss Brander that there is strong evidence to suggest that Haji’s account of obtaining the telephone number on that date is false: DLO Barker had been given the same number on 23 May).

Haji’s witness statement records being told by Barker that “due to some operational reasons” HMCE headquarters in London were unable to take this job. Barker’s witness statement records London being unable to proceed “due to other operational commitments”.

On 3 July, Haji informed Barker that Amir Jan was very angry about Haji pulling out of the deal as he (Jan) had already paid the processor of the drugs. Haji asked Barker to see whether London would reconsider. Barker did this and, according to Barker’s statement, London agreed to proceed because “changes in operational commitments enabled them to accept the job”.

The handover of the drugs was arranged for 10 July 1995 (the same day as the handover of the operation Woodchat drugs).

The witness statements describe Haji and two “friends” collecting the drugs from Amir Jan and then handing them to DLOs Barker and Bragg who had been waiting some distance away (out of sight of the handover). We now know that the “friends” were Soofi and Abdul Ghaffor. Barker’s notebook records the presence of Soofi, but refers to Ghaffor only as “plus one other”. His daybook records the third man as being Ghaffor.

On 12 July, Haji saw Amir Jan. Jan introduced him to another man, called Karim, who was acting on behalf of a man called Chaudhry of Lahore. The intended UK recipient was to be Chaudhry’s customer. No details were given of the UK recipient, but two further contact numbers were given for Jan: 246344 and 62926. Haji also learnt that Jan’s real name was Abid.

We now know that Chaudhry’s full name was Chaudhry (the spelling varies) Azam. Azam was, so it now strongly appears, the principal. His UK customer was the appellant. Azam was, it appears, a powerful man who lived at a Hostel for members of the National Assembly.

On 19 July, Haji made a number of controlled calls from the British High Commission to Jan/Abid. This was done in the presence of DLO Barker and an interpreter. In Miss Brander’s words:

Chaudrey Alyas was a pseudonym used by the appellant for the transaction.

On 22 July, Haji was given a piece of paper by a “friend”, said to have come from Abid, with two further UK telephone numbers. Haji flew to the UK on 27 July and was installed in a controlled house in Leyton. In the following days, there was a series of controlled calls back to Pakistan and to the UK numbers provided for Chaudhry Alyas. The calls to Pakistan included conversations with Abdul Wahid and Ghulam. Haji first spoke to the appellant at 18.05 on 28 July. Haji mentioned the codeword and the appellant acknowledged it. Thereafter they arranged to meet and on 1 August, the appellant attended the house in Leyton and collected the drugs from Haji. The meeting was recorded. The evidence against the appellant in the transcript was overwhelming. In the words of Mr Ashley-Norman:

He used the agreed false name – Chaudhery Alyas

He recognised the agreed code – tables

He agreed that he was to give Haji £2000 towards his expenses

He did in fact give Haji £2000

He was arrested with a quantity of heroin.

Following arrest, the appellant refused to speak to anyone, including his wife and the duty solicitor, for his first 21 hours in custody. The appellant was seen by a doctor, who was unable to get any verbal response and found the appellant to appear “extremely frightened”. When the appellant did begin to speak, he was interviewed and fully admitted collecting the drugs from Haji and that he was aware of what he was collecting. He said that he had done it because of threats from a man, called Azam in Pakistan.

In the words of Mr Ashley-Norman, the appellant made the following admissions:

He lived at 39 Verney Avenue

He had had two telephone calls from Azam in Pakistan on the previous (about) Friday

Azam had asked AHMED to collect some things from Haji, telling AHMED he must give Haji £2000

AHMED was told that Haji would contact him

Azam tells AHMED to call him ‘from outside’ which AHMED says he did

AHMED provided the officers with the telephone number for Azam, the number ending 1658, which was said to be a hostel for members of the National Assembly

AHMED was to use the name Chaudry Illyas

AHMED was told he was to collect drugs

AHMED tried to raise £2000 from Azam’s nephew, Saeed Ahmed, and a friend also named Azam, from Amber Insurance (henceforth ‘London Azam’), but failed, and so amassed the money from various of his own friends

He admitted having received a telephone call from Haji, also he believed on Friday

He had been supplied with the mobile telephone bearing the number ending 1891, which he had received on either the previous Thursday or Friday, though he made no comment on how he came by the telephone

Azam supplied AHMED with a telephone number in Pakistan, ending 344 upon which AHMED would be able to speak with Azam and another Haji [AHMED’s recollection of the number is almost accurate]

AHMED was to accompany Haji to others, known to AHMED, who were to receive the drugs

After the delivery, Haji was to come to stay at AHMED’s house, and then Azam would come to the UK

AHMED admitted using the code name ‘tables’ which had been given to him by Azam

AHMED knew to whom the drugs were to be delivered, but declined to name them

Throughout either AHMED himself or his solicitor on his behalf referred to threats said to have been made against AHMED’s family.

In the words also of Mr Ashley-Norman:

There was a series of telephone calls placed from AHMED’s home telephone number to important numbers in Pakistan, in particular, the number for Azam (the alleged duressor) and Amir Jan (the supplier), note especially the timings of calls in July

There were also calls from AHMED to numbers for the ‘London Azam’

The timings of these calls was significant in the light of the interview assertion that the duressing calls had started on Friday (numerous calls to relevant numbers going back to May, arrest on 1 August 1995).

The timings are also significant in the light of the interview account of AHMED’s dealing with ‘London Azam’ (numerous calls to landline and mobile going back to May, interview implication – met over weekend).

The appellant pleaded guilty at the plea and directions hearing. The appellant’s mitigation, which comes from some notes prepared by the officer in the case, was in accordance with his interview. He had a heroin problem and was a user. He was in debt because of heroin use, some of the debt being owed to drug dealers. He took part in the importation due to threats from drug dealers [presumably Azam] and to wipe out debts of some £4000. He was also to be given a small amount for own use.

It is submitted on behalf of the appellant that the conviction is unsafe.

1.

The prosecution ought to have revealed what was known about Azam. Had it done so, the appellant might well have run duress as a defence.

2.

The prosecution ought to have revealed that, although the evidence showed that Haji had been approached on 13 June 1995 by a man named Amir Jan to take 4kg of heroin to the UK, there had been an earlier undisclosed approach to carry out a CD in relation to that heroin, the so-called genesis of the operation. Had that been disclosed that might have supported the defence of duress. Alternatively the deliberate omission of any reference to the genesis of the operation by the DLO constituted gross prosecutorial misbehaviour.

3.

Likewise it was gross prosecutorial misbehaviour not to reveal the role played by the unsupervised and unmonitored Soofi and Abdul Ghaffor.

We start with the position of Azam. In the words of Miss Brander:

In June 1994, a different PI, PI Salim, had approached DLO Ansell with a proposal for a CD for a man called Choudry Azam at the MNA (Member of National Assembly) Hostel on the same telephone number as that given by the appellant for his Azam.

It is not known what became of this proposal.

This information provides independent corroboration of the existence of a drug supplier called Azam, on the number given by the appellant and that he had connections with the Pakistan National Assembly – supporting the appellant’s contention that his Azam was a powerful man.

In short, it shows that that part at least of the appellant’s account in interview was likely to be true.

Mr Ashley-Norman originally accepted what he described as evidence of material non-disclosure but, rightly in our view, changed his approach. He wrote:

However, there was no failure of disclosure sufficient to undermine the safety of the conviction or at all.

When AHMED pleaded guilty he did so knowing that he could run a duress defence. He had all the information he needed to run that defence. He had Azam’s contact details had he wished to pursue him. AHMED was able to give an account of what he said had happened to him, and why he had acted as he did. He chose not to run the defence. He pleaded at an early stage, whereupon there was no live issue between the parties. The general disclosure obligations therefore ceased.

He pointed to the impracticality of requiring the prosecution without more to undertake a disclosure exercise merely because in interview a suspect claims that he was threatened.

We do not accept that the failure to disclose what could have been discovered from the files about Azam makes the conviction unsafe. If the appellant had wanted to run the defence of duress then one would have expected a request for information about Azam. It must be remembered that if duress could (unusually) have been run as a defence, it would (one might think) have involved the appellant in calling Saeed and London Azam, if not others. It seems to us that the appellant’s legal advisers sensibly decided that whatever threat Chaudhry Azam may have issued, duress was not going to succeed. If they had thought that it might succeed, a request to the prosecution for more information about Azam would have been forthcoming. Such a request, if not met by the information gathered in June 1994, might have caused the respondent difficulties. That did not happen and there was, in our view, no failure to make proper disclosure on the facts of this case.

We turn to the failure to disclose/the alleged deliberate decision to omit reference to, the genesis of the operation. In the words of Miss Brander:

Contrary to the account given in the witness statements of Haji and Barker, the DLOs first received information in relation to this operation in May 1995. The primary source of the information was not Haji, but a man he introduced to the DLOs called Abdul Waheed

The suppliers were to be Amir Jan and his partner Nural Gul.

Barker had told Waheed that the proposal was not acceptable and the Waheed would either have to get further information or try to introduce an alternative PI.

Waheed also told Barker that the “Plan was to send originally to the USA now switched to UK”

Waheed also provided a telephone number for Nural Gul - 210848 (the same number Haji later supplied for Amir Jan).

This history was significant because it showed:

the drugs had been ready to go in May;

the appellant cannot have been the originally intended recipient, because it had been intended to send the drugs to the US;

the man “Abdul Waheed”, who, on the served papers appeared to be part of the supply end of this operation, was in fact the man who had first proposed it as a CD to the DLOs; and

there was a relationship of sufficient proximity between Haji, Waheed and the “suppliers” to enable Haji and Waheed to exchange places as the courier.”

According to Miss Brander:

This information is not only relevant to Route 2, in undermining the case as a genuine controlled delivery, it would also have assisted the appellant in relation to the issue of duress: it shows a strong motive at the Pakistan end to ensure that, by hook or by crook, someone came to collect the drugs.

Mr Ashley-Norman submits:

There are quite legitimate explanations for not including the detail of Abdul Waheed in the initial witness statements, chief and most obvious amongst which is his protection.

We agree. In transactions of the kind involved in these appeals, a degree of circumspection in revealing material is understandable provided that the material does not undermine the prosecution’s case or support the defence which the appellant is running (see paragraph 56). This material did not. There was no need to disclose the genesis of the operation merely because of the references to Azam in the interview before the appellant had made clear that he was running the defence of duress (which he did not do). Nor, in our view, does the failure to disclose the genesis come anywhere near satisfying the Route 2 test.

Miss Brander also relies on the non-disclosure of a DLO note of an October 4 meeting two months after the arrest and about six weeks before Ahmed pleaded guilty. The note read:

Abdul Waheed friend of [Haji] came to HC 4/10. Previously came in with 2 cases 1) Nural Gul 2) Abid [a name used by Amir Jan]. Abid case took place with 03 as courier. You told Abdul that if 03 did first case OK he could do 2^nd.”

Case 2) Octaroon [sic]

Mumtaz Ahmed aka Ilyas arrested with 4kg – friends of Mumtaz accusing 03 [Haji] + Abdul of setting him up as 03 was not arrested. Told Abdul to phone 01494 439289 + speak to Syed Ahmed who is a relative of Mumtaz. Friends have no proof of 03’s co-operation + want to know if 03 paid money so as not to be arrested. Gul and Abid do not know each other so doubts will not reach Gul’s ears.

Miss Brander submits:

Waheed was hoping, through the appellant’s case, to build an ongoing relationship with the DLOs. This would have given him a strong motive to ensure that the drugs were collected by someone and that the operation was thus a success;

It calls into question the nature of his relationship with the people he had named as suppliers. If he had genuinely been at arm’s length from Abid/Amir Jan, then Jan would just have lost 4Kg of heroin through Waheed and had his UK customer arrested. It seems unlikely in these circumstances that Jan would have wished to immediately work with him again. But the job that Waheed was then advancing was for the very man whom he had earlier described as working with Jan. This point was obviously not lost on Waheed, because he told the note-taker in October 95 that “Gul and Abid do not know each other so doubts will not reach Gul’s ears.” This is to be compared with the phase I application in respect of the appellant’s operation which clearly describes Jan and Gul as partners – information which had earlier come from Waheed.

Mr Ashley-Norman makes a number of detailed points about the note casting doubt on the accuracy of what Waheed is recorded as saying.

We see no reason why the October note should have been disclosed in this case. It neither undermined the prosecution’s case or supported the defence case- indeed the defence advanced no case.

We turn to the failure to disclose the role of Soofi and Abdul Ghaffor. Miss Brander writes:

PI Soofi and Abdul Ghaffor were involved in the handover of this operation.

Their involvement was not authorised, nor was it disclosed on the served witness statements.

There does appear to have been a draft witness statement prepared for Soofi (in the name of Faisal), but it is very false indeed: it details his involvement in the handover of the drugs and then concludes “I have had no other dealings with Ali [Haji] or anyone else regarding this matter.”

The appellant also questions whether the “Ghulam” conducting a number of the controlled calls at the supply end is in fact Soofi. If this is right, then he was clearly playing a major role: it was Ghulam who first gives Haji the code words to use with the UK recipient and is described by Abid / Jan as the man with the details of the UK recipient.

The respondent’s contention that Ghulam is in fact Abid is contrary to Haji’s witness statement and the transcripts of the controlled calls:

p.5 of Haji’s statement states “I again spoke to Abid and another man called Ghulam”;

the transcript of the controlled call records Haji/Ali asking whether Ghulam is there, and when he is told that he is out, he asks whether “Abid is also not there”. The reply is “they have all gone out”

the transcript records Abdul Waheed talking about “Abid and Ghulam”

The fact that the Crown is unable to say who Ghulam actually is - whether he is a long-standing HMCE informant, or the principal supplier in the appellant’s case - goes to the heart of what went wrong with the Pakistan controlled delivery system. If the Respondent cannot say who “Ghulam” is – PI or supplier - how can it be said that the necessary foundations for a lawful controlled delivery are met? How can it be said that PI and supplier are at arm’s length from one another when it cannot be determined with any confidence that they were not the same man?

Mr Ashley-Norman replies:

The presence of Abdul Ghaffor at the handover emerges from Barker’s daybook for the 10 July 1995 at O0140. In other relevant locations he is rendered as a ‘friend’. There is no evidence of his having played any role in Operation Octeroon other than on this one occasion as some ‘muscle’ at the collection. That Haji involved others was neither surprising nor undisclosed. It was ripe for exploration on the face of the papers had the appellant wished to avail himself of the opportunity presented. No sustainable point arises out of Abdul Ghaffor in this case.

There is no doubt that the position of Soofi is more complex. His draft witness statement is described by the appellant as ‘very false indeed’. The draft statement describes the circumstances of the handover. It is correct to say that the statement is misleading when it claims that Soofi had ‘had no other dealings with Ali or anyone else regarding this matter’. He had in fact attended the BHC with Haji on one occasion when Haji was passing information about this case (see for example 22 June). It is submitted that this omission is not such as undermines the safety of the conviction following a guilty plea. The analysis of the question whether Soofi was the Ghulam who received controlled calls from Haji is more important.

Was the Ghulam in the telephone calls Soofi ?

The Crown acknowledges and accepts the appellants’ correction that Ghulam appears to have been a different person to Jan/Abid. It had been the Crown position that Amir Jan (true name Abid) had used the name Ghulam as a code name. That seems to have been Haji’s recollection when asked about this by the CCRC – see c) below. Furthermore, Barker appears to have formed this impression at the time (see his notebook for the 19 July). However, for the reasons given by the appellant, it seems that Abid and Ghulam were separate people.

It does not follow from this concession that the Ghulam in the telephone calls was Soofi. The Crown case is that the overwhelming inference from all of the material is that the Ghulam on the telephone transcripts is NOT Soofi. However, it is possible to establish this only as a matter of inference. It is to be inferred from the following facts :

a)

When giving evidence in July 1996 in Operation Notorious, Soofi said that he did not remember being involved in another case with the code word ‘table’ [which was the code word in Octeroon] (see N0501I).

b)

The CCRC asked Soofi about Operation Octeroon. Soofi was not able to recall the facts when various names were put to him, but was able to recall the name Abdul Wahid, recalled that Haji had worked with Abdul Wahid, and asserted that he, Soofi, had not worked with Abdul Wahid. If Soofi were the Ghulam in the transcripts, he would have done (see pages O0420A – C).

c)

When he was interviewed by the CCRC, Haji recalled the case generally, but said he could not remember a Ghulam in the case, but that it may have been a code used by Amir Jan to refer to himself.

The circumstances of the introduction of Ghulam are consistent with his having been involved by Amir Jan rather than by or as a friend of Haji.

A detailed consideration of the contents of the calls involving Ghulam is inconsistent with that Ghulam being Soofi (if Soofi - excellent and imaginative actor, alternatively someone else). Best examples of this: changing the codeword; Ghulam giving detailed instructions on money; and further details on the payment method and suggesting that Haji stay at Aylas’ house.

For these reasons it is submitted that the Ghulam in the telephone calls was not Soofi.

If the appellant fails to establish that the Ghulam in the controlled calls is Soofi, it is submitted that the residue of Soofi’s involvement (handover + presence at one BHC debriefing) does not begin to support a sustainable Route Two argument.

Even if the appellant were to establish that Ghulam was Soofi (burden and standard for discussion) it is by no means certain that the conviction following a Guilty plea would be unsafe. There is no evidence that Barker was aware that Ghulam was Soofi, indeed the evidence of the notebook entry for the 19 July suggests the opposite. It would require a detailed consideration of what Ghulam/Soofi actually said, and measuring that against the facts in the case, including the fact that it was disclosed that Haji had a man ‘sitting there’.

Whilst impressed by the detailed work of Miss Brander and Mr Ashley-Norman, we take the view that Miss Brander has not been able to come anywhere near showing the kind of gross prosecutorial misconduct which might lead to the quashing of the conviction.

For these reasons we dismissed the appeal.

The appellants are brothers. On 16^th June 1994 at Birmingham Crown Court they were convicted of conspiracy to evade the prohibition on the importation of heroin. They were subsequently sentenced to 10 years’ imprisonment. The drugs concerned were 3.94kgs of heroin at 50% purity which had been imported from Pakistan as part of a CD called Operation Pastie.

The appellants appeal pursuant to a reference by the Criminal Cases Review Commission dated 10^th July 2006.

On 22^nd March 2007 the Crown indicated that it did not intend to resist their appeals, on the basis that there had been material non-disclosure to the defence.

In early May 1993 an informant named Soofi visited DLOs at the British High Commission in Islamabad accompanied by a man called “Ali”. Soofi reported that he had been approached by a supplier named Fateh to take 4kgs of heroin to England. Soofi explained that he did not want to give evidence in this case, but that he would introduce another informant, called Haji, to Fateh. Haji would act as courier and would give evidence at any subsequent trial.

Permission for a controlled delivery was given by the Pakistani authorities and on 23^rd May DLO Bragg collected the drugs from Haji. The handover to Haji was not witnessed by the DLOs. “Ali” was present, but the witness statements described him only as a friend. Haji said that he was told by Fateh that the heroin was for someone called “Haji Ghaffar” in the UK, and that he should ring Fateh once he had safely arrived, at which time Fateh would give him Haji Ghaffar’s telephone number or address in England.

On 25^th May 1993, Haji travelled to England to conduct the UK phase of another controlled delivery, which was Fleur-de-Lys.

The Operation Pastie drugs were imported into the UK by Officer Taylor on 11^th June 1993.

On 13^th June, Haji began the UK phase of the appellants’ operation. He was installed in controlled premises at Farquhar Road, Birmingham. On 14^th June Haji rang Soofi on the number previously given for the supplier. Soofi gave Haji a new number for Fateh. The calls were recorded. Fateh gave Haji a UK number 0860 733950 which he said was the number for Haji Ghaffar. Fateh said that either Haji Ghaffar or a man called Iqbal would be there.

At 2002 on 14^th June Haji rang the number. It was answered by a man who gave the name Iqbal but was admitted at trial to be the appellant Rizwan Ahmed. Rizwan Ahmed also admitted that the 0860 733950 number was his girlfriend’s phone, of which he had use. Ahmed said that “they” had previously told him that he would receive a call. Ahmed told Haji not to say too much on the phone. They made an arrangement to meet, although the details were not finalised.

At 09:48 on 15^th June Haji rang Iqbal (Rizwan Ahmed) and gave him the address of the house in Birmingham and its phone number. The brothers drove up from London and were there by 12:48. Nizar Ahmed rang the bell, but it did not work. The brothers went away, leaving their car nearby.

At 13:18 they called Haji from a phone box; Rizwan said “the situation doesn’t seem right to us”.

In due course the appellants and Haji met away from the house. This outside meeting was not recorded. There was a dispute at trial over what was said. Haji’s evidence was ambiguous as to whether the word “heroin” was actually used or whether references were simply to “goods” or “the thing”, but he was adamant that all concerned knew that the discussion was about heroin. The appellants denied that there had been any discussion of heroin. It was Rizwan’s case that he had not been present for the bulk of the conversation and it was Nisar’s case that the discussion had been about the possibility of him spending the night at Haji’s house, because he wanted to attend a college open day in Birmingham the following day. Things were left that the appellants would come to Haji’s house later that night.

Haji went back to Farquhar Road and rang Fateh. Throughout all this time Soofi had stayed with Fateh in Pakistan. On each call Haji was keen to mention money (his courier fee) that Fateh was supposed to hand over to Soofi when the drugs had been handed over.

At 19:00 Nisar Ahmed rang Haji. He gave the impression that the brothers were acting on behalf of someone else: “We are the sellers for someone else, ahead of us.” Although the appellants mentioned money to Haji, it was Haji’s case at trial that the drugs had already been paid for and that he was not expecting to receive any money from the appellants. No money was ever handed over.

At 19:03 Nisar Ahmed entered the house and what happened inside was recorded on video and audio. Nisar referred to a man in Lahore. He and Haji also talked about “Fateh”, but Haji said that they were talking about different people. Haji rang his “Fateh” and said that “the man has arrived and he is sitting with me and he is now going to take the goods/stuff/luggage”. Haji offered Fateh the chance to speak directly to Nisar but Fateh declined since he speaks Pushtu and Nisar only speaks Urdu.

Throughout this time the dummied-up drugs were under the sofa in the controlled premises. At 1926 Haji brought in a holdall and then retrieved the drugs from under the sofa. He put two packages (out of the four imported) into the holdall.

Rizwan arrived six minutes later, following a brief phone call from Nisar. He told Nisar that there was a white van outside with white men sitting in it. Rizwan said “What are you worrying about the money for? It’s seven thousand pounds right/isn’t it?” Haji agreed and the appellants said that they would return with the money. Within a minute the brothers left, Nisar carrying the bag.

Outside the house they separated. Nisar went up the hill with the bag and, when Customs came after him, threw it over a 6’ fence. Rizwan went the other way and was also arrested. Their car key was found nearby.

Haji made a final call to Fateh in which he said that “the thing” had been given. Fateh said that he would give Soofi the money due as a courier fee after one or two hours “when I get the news/information from my friend.”

There was some questioning immediately after the arrests, at which provable lies were told by the appellants; for example Rizwan said that he had come to Birmingham by train.

The appellants were then interviewed under caution. They each told lies in relation to their movements. They denied knowledge of the drugs. Nisar said that had been told to collect something from Haji on behalf of other people and deliver it to them in London, but did not know it was drugs. Rizwan maintained that he had simply gone to Birmingham to accompany his brother. He said that he realised “something funny was going on”, but he didn’t think it was about drugs, because they were only talking about £7,000. He said that if they had been talking about £100,000, he would have been much more concerned.

A few days later (after charge) the appellants contacted the customs officers and asked to speak to them. The appellants volunteered that since their arrest they had been told (by a friend called Nadeem) that a man had come to their home demanding the package, asking where Nisar was, and threatening Nadeem. Nadeem said that the person was called “Winston or China”. The appellants said that Winston was behind the heroin that they had collected, although they did not accept that they knew it was heroin. Both of them had been in possession of a card with the name Winston on it.

They then went on to speak about “Ijaz” who was in Pakistan and who they said had given their number to “Mr Akbar” (ie Haji). They said that Ijaz had telephoned them from Pakistan and told them to see Haji.

Winston was traced by C&E and interviewed. He denied any involvement and was released without charge.

We turn to the proceedings at trial.

The Prosecution prepared a bundle of sensitive material which was put before HHJ Perrett QC in an ex parte hearing. The bundle still exists and bears the Judge’s endorsements. The Judge was clearly shown a complete version of Haji’s informant file which included the material about Rainman II and “Ali”. The Judge approved the redactions to notebooks proposed by the Crown, the use of the pseudonym “Ali” and the terms of an admission to be made about Haji’s previous work for Customs.

In the event HHJ Perrett QC was not the trial judge. The trial was listed before HHJ Taylor. There is a note taken at a hearing which shows that he was aware of the decisions on PII that had previously been made. There is however no indication as to whether HHJ Taylor was taken through all the sensitive material in detail.

At the start of the appellants’ trial, an abuse of process application was made. The principal argument was that C&E should not have permitted the importation in this case to take place. Although not phrased as “state-generated crime” the submissions were in a similar vein. This argument was advanced both in generic terms, as a matter or law, and on the basis that, on the particular facts of this case, it would be unfair to try the appellants, having regard to the way in which the matter was instigated. It was advanced on behalf of the appellants that Haji was a “bounty hunter” who sought out suppliers in order to advance controlled deliveries for his own reward.

HHJ Taylor directed that a voire dire be held. This lasted several days and evidence was heard from Haji, Soofi, DLOs Bragg and Ansell. The judge took time to consider his ruling.

He concluded that:

“… having regard to the whole of Haji Akbar’s evidence,… he is making a business, and has made a business, of finding suppliers in order to bring goods to this country under the supervision of the authorities for reward. He is not only a participating informant in this case, but he is a regular informant.

I am satisfied that if it were not for his activity in this case it is not proved that these goods would have been brought to this country.

….

It seems to me, having regard to my view of Haji Akbar’s evidence, which is supported to a minor extent by Soofi, who is plainly a more junior partner in this activity, that this particular activity is highly distasteful.

…

The submission on behalf of the prosecution is that the law permits this to happen and it does not matter whether the judge finds the process distasteful or not, if the evidence is relevant and probative then it matters not in law how it is obtained.”

The judge then considered Sang, Smurthwaite and Gill and the effect of s.78 PACE. He posed the question that he was called on to decide in the following terms:

“How then should I exercise my discretion when I find – as I do – that the informant is making a business of informing the authorities; is coming to this country and only, in my judgment, coming to this country because he knows that he will receive a reward, and the authorities are not preventing the goods coming to this country, but are in fact allowing them and facilitating their entry into this country in order to seek to arrest those who in this country are willing to accept the goods.”

The judge stated that he had found this “a very difficult question to answer”, but ultimately ruled:

“My final conclusion is, having taken anxious consideration, that the prosecution are right when they say, through Mr Eades, that if the defendants knew the drugs were coming from Pakistan, it matters not who brought them.”

It must be recalled that this ruling was given before the decisions of the House of Lords in Latif & Shahzad and Looseley. The Crown maintains in this appeal that the conclusion reached by the Judge on this issue nevertheless remains correct. The appellants contend that had the Judge had the benefit of the later decisions, his ruling might well have been different. It is not necessary for us to resolve this issue, because we allow the appeal for other reasons, as set out below. It is accepted that the Judge regarded the arguments in relation to abuse of process as at least tenable.

In light of the Judge’s ruling, the trial proceeded. The Crown made disclosure to the defence of certain material concerning Haji and Soofi, but did not disclose the identity of the third man (“Ali”) who had attended on the DLOs. It was disclosed that Haji had been involved in three earlier operations (which was true in so far as it went), but it was not disclosed that Haji had also been involved, together with “Ali”, in a fourth operation, known as “Rainman II”. Rainman II had not resulted in any arrests.

The following relevant evidence was given during the course of the trial (Footnote: ¹):

The Crown (and apparently the Judge) had in its possession at the time material at least arguably suggesting that the answers given by Haji and Soofi were inaccurate. “Ali” (the friend) had been described as a CI both by the case officer and by Bragg. What may not have been apparent to the Judge, although clearly known to Bragg, was that “Ali”, under a different name, had been a participant in three out of four of Haji’s previous HMCE controlled deliveries and had been described as Haji’s “partner” in Bragg’s witness statement in Operation Rainman. The Crown make the point that the defence were in possession of a redacted copy of Bragg’s notebook which showed “Ali” referred to as a CI, and they appeared not to take the point. However, the Crown accepts that the fact that “Ali” was clearly part of the “partnership” was not disclosed to the defence. The Crown does not accept that Bragg’s evidence was misleading.  The appellants make the point that Bragg’s evidence could have reinforced the misleading impression given by Haji and Soofi in relation to the status of “Ali”.

It must be borne in mind that the evidence of Haji and Soofi was given through interpreters, the note of Soofi’s evidence is incomplete, and the expressions “informer like you” and “partnership” are inexact and capable of a number of meanings. Because of this the Crown does not conclude that these answers were necessarily deliberate lies. It is also the case that the Judge had sanctioned the reference to “Ali” rather than to any other name. In his memo of 8^th February 1994 Ansell explained that he had substituted the pseudonym “Ali” on the redacted documents and went on: “I shall instruct Haji and Soofi to refer to him as Ali as well.” This may have left the witnesses in a state of some confusion as to what to do when questions about “Ali” were asked.

The Crown does however accept (a) that it is a possibility that the answers about “the friend” and “the partnership” were deliberate lies, albeit in furtherance of a judicially-sanctioned decision to keep “Ali’s” name out of the picture and (b) that the Crown (or Judge if the Crown did not) could have corrected the position by re-examination or the making of an admission.

From the summing-up, it is clear that the appellants had mounted a wholesale attack on Haji’s credibility as a participating informant. The Judge summarised the defence case in the following terms:

“What is suggested on behalf of the defence in this case is this: that money corrupts, and that this man, Haji Akbar, because he knows the rewards are enormous has not towed the line. He has been tempted now simply to solicit heroin, bring it in to this country because he knows that he can get a large sum of money and be totally protected in this country.

It is, therefore, suggested that he has gone beyond doing it according to the book, but he has simply solicited heroin and simply dumped it on these two defendants who know nothing at all about what happens until the point of their arrest, so as to satisfy the police – in other words, their statistics show that they have more convictions for this sort of thing in this country and these two defendants have been totally duped. That is what is suggested in a nutshell has happened in this case.”

The jury deliberated for just over a day before returning guilty verdicts.

Looking at this case in the round, the Crown acknowledges that this operation was designed to catch the big fish whom Haji was told by Fateh (rightly or wrongly) was called Haji Ghaffar. In fact it caught the minnows who, on the Crown’s case, had been recruited (not by Haji, but by someone in Pakistan) to go and collect the drugs.

In its written response to this appeal dated 22^nd March 2007, the Crown set out the following as its reasons for not seeking to uphold the convictions as safe:

(1)

Material concerning “Ali”, his history and the role that he played in the operation, was not disclosed to the appellants.

(2)

Material concerning Operation Rainman II, a Controlled Delivery resulting in an unowned seizure and terminated in October 1991, was not disclosed to the appellants.

(3)

This material would, if disclosed, have enabled the abuse of process argument made by the appellants at trial to have been considered in a better light.

(4)

The material might also have assisted in providing an explanation as to why the appellants should have come to Birmingham to collect the heroin. Their story that they came innocently was inherently implausible, and hard to square with evidence deriving from controlled telephone calls. Nonetheless the Crown cannot say that the Jury’s verdict would necessarily have been the same if the material had been disclosed and put in evidence (Pendleton).

(5)

It remains the Crown’s case that the appellants were guilty in terms of actus reus and mens rea, but it is acknowledged that they were (as the Judge rightly observed when sentencing) not the UK principals. They had clearly been put forward by someone (they said by a man based in Lahore) to go and collect the drugs. The Crown cannot exclude the possibility that the person who told them to go was aware that it was (or could be) a controlled delivery and that they would be arrested. There is and was however no material to suggest that this was the case, let alone that the DLOs were aware of it at the time.

(6)

The Crown has established that both Haji and Soofi gave answers in evidence which were at least arguably false, which can only be explained by a desire on their part (in fact judicially-sanctioned) to conceal the fact that “Ali” was involved in the operation, and which the Crown failed to correct at trial.

The Crown now concedes that, in the light of the defence raised by the appellants at trial, material that showed the involvement of at least two of the genitors of Op Pastie in Rainman II, a previous operation where no recipient had come forward, could have been of potential assistance to the appellants both on their abuse argument and in front of the Jury.

Although a record of Rainman II, and material concerning “Ali” was within the material before the Judge on the PII application, its potential importance does not seem to have been appreciated at the time.

We agree with the Crown that this material should have been disclosed to the Defence, and that if it had been disclosed it could have had an impact on the abuse of process argument. It might also have affected the decision of the jury to convict. The fact that (as appears to be the case) the non-disclosure was judicially-sanctioned does not alter its impact upon the safety of the conviction.

Further, the non-disclosure in relation to “Ali” meant that the jury heard evidence about him from Haji and Soofi – that he was not an informant and that he was not part of their “partnership” – which was arguably inaccurate, depending of course upon the meaning of the word “partnership” and allowing for interpretation of both question and answer.

These inaccuracies (if that is what they were) did not just go to the credibility of the witnesses. The decision to “write out” “Ali” was clearly not risk-free. Knowledge of “Ali” could have provided the appellants not only with an improved abuse of process argument, but also with a potential explanation as to the way in which they came to be set up, via the man (described by them as Ijaz) in Lahore.

The Crown concedes that this non-disclosure occurred. We agree that its effect is such that the appellants’ conviction is unsafe.

Operation Dire involved the importation from Pakistan to Britain of 11.57kg of heroin at a purity of 45-55% with a street value of £1,317,936. The operation originated from DLO Islamabad Malcolm Bragg and the PI was not Haji, as was the case in all of the other cases the subject of this judgment, but an equally prolific PI named Mark. In Operation Dire he was known as Jamil. The defendants were Mohammed Taj, Mohammed Farooq and Mohammed Ramzan. Another target Mohammed Quayum was never arrested. The informant in this case received a reward of £12,000 for his services.

The defendants stood trial at Birmingham Crown Court in February and March 1992 before His Honour Judge Black QC. Mr J Gorman QC represented the prosecution. The defendant Taj was represented by Mr D. Draycott QC and was acquitted. The defendant Farooq was represented by Mr Kadri and was convicted and sentenced to 14 years custody. The defendant Ramzan was represented by Mr Ashe-Lincoln and was convicted and sentenced to 14 years custody. Both of the convicted men appealed against their convictions and their sentences. Their appeals were dismissed by the Court of Appeal on 10 May 1994 (Beldam LJ, Ognall, Harrison JJ): R v Farooq; R v Ramzan [1995] Crim LR 169.

Mr Qadri QC of Counsel had acted for Quddus, a defendant in the earlier Mark operation, Operation November Express.

The Crown has conceded that the appeal in this case ought to be allowed. In so doing the Crown acknowledges that there were material non disclosures of the role of a man named Nasim Khan.

The short and determinative point is that the trial was conducted on the basis that Nasim Khan was a supplier at arms length to Mark, unaware that Mark was an informant. In fact, contrary to the impression conveyed by Mark in his evidence before the jury, Nasim Khan knew that Mark was working for the DLOs and knew that the importation was to be a controlled delivery. Furthermore Nasim Khan had a financial stake in the importation. The material which made this plain, in the main telexes passing from the DLO Malcolm Bragg to London, was not disclosed at trial, and notebooks from Malcolm Bragg which were disclosed omitted the details just summarized. This Court looked at the key evidence relating to this case during the course of its deliberations in Choudhury & Ors (paragraphs 90 to 93). At that time we concluded that “HMCE in London was well aware of the dangers of the supplier and the PI ‘setting up’ someone in this country”, but then failed to disclose the details to the trial judge” (para. 93).

Both of the convicted defendants ran variants of a set-up defence. Farooq’s defence, intimated in his interview following arrest, was that he believed that he was involved in the importation of medicinal drugs. Ramzan in the course of his interview admitted that he was aware that he was involved in the importation of drugs, but said that he had been inveigled into the importation by Nasim. By the time of his trial his case had become that he had given a false interview account, and that he had in fact been set up and was expecting to import medicinal drugs. He gave an explanation for his earlier lying account in interview.

On a straightforward application of the Pendleton test, it is accepted by the Crown that the Court could not be satisfied that the undisclosed material could not have had an impact on the jury’s verdict.

That decision having been reached the Crown did not consider it necessary to reach a formal and concluded view on the remaining Grounds of Appeal, and made no concession in respect of them. The appellant, in common with the stance adopted by other appellants in this series of controlled delivery cases, has accepted that the public interest no longer requires the Court of Appeal to conduct a comprehensive review of the circumstances of his case. However, again like others, he has asked us to observe that he had raised a number of further issues which it has not been necessary to resolve.

We turn to the facts.

This case commenced in about December 1990, when according to Mark, he met a man named Nasim Khan and was asked to courier drugs to the UK. On the 23 December 1990, Mark met with Nasim Khan and together they met the appellant, Ramzan, and a man called Quayum. The intended importation was discussed; the intended recipient was a man named ‘Raja’. Nasim Khan had a clear financial interest in the importation at this stage.

It was not until the 27 January 1991 that Mark discussed this potential operation with the DLO, Malcolm Bragg. A contemporaneous telex makes it plain that Nasim Khan had been told that there was a possibility for a controlled delivery. Nasim Khan knew that Mark was prepared to act as a participating informant. The telex makes this point plain, but Bragg’s notebook relating to the same meeting did not include this detail. It is worth setting out the key telex in full:

“Met CI Mark 27/1. A friend of his Nasim Khan from Landi Kotall ... has been approached by Raja Ramzan and Raja Roshan, who are from the Birmingham area, but are currently living in … Rawalpindi…to supply and transport 12 kgs heroin to the UK. Khan approached Mark for advice, and Mark suggested a CD. The Rajas were taken by Khan to a supplier in Landi Kotal, where they selected and paid for 12 kgs. Khan was persuaded to invest in the venture and the cost was split three ways. The money Khan invested will be released and returned to him by the Rajas once they inspect the heroin in the UK. He would have to wait for his share of the profit until it’s sold. He currently holds the heroin and is ready to hand over when we say. Mark is happy to give evidence. It is not known if Khan will. Mark has warned Khan that the knock in the UK could take place before his investment is released, and has agreed to split any reward we pay in this event… [Emphasis added]”

Bragg reported back to London the proposed operation, but it was rejected. An endorsement on the application reads ‘Tony, not this one. If PI or supplier can still identify run for us they will still collect (reward). Can DLO get more info on Raja’s eg when they depart?’ The document also bears the word ‘No’ written upon its face seven times. The fact of this rejection appears to have been relayed to Mark. The informant file maintained by Bragg records that Bragg ‘[t]old CI of doubts raised by London. CI to find out name and address of supplier and relation to Khan. Money put up by Khan’.

On 30 January 1991 Bragg sought permission to take possession of the heroin from the PCNB. In the permission application, undisclosed to the parties or the court, he named the UK suspects, but did not name the supplier or provide his telephone number, both matters of which were known to Bragg at the time. The suggestion that the supplier and the PI were knowingly acting in concert with a view to sharing the reward was also not disclosed. PNCB permission was duly granted on 31 January.

Over the subsequent weeks, Mark remained in contact with Bragg, and supplied him with further details of the intended importation. During this time Bragg was told by Mark that Nasim had withdrawn from any financial interest in the importation. These events led to a further application for permission from London to allow the operation to proceed. This time the permission was granted in view of the ‘change of situation’. So far as London was concerned, the changes appear to have been twofold; firstly that there were greater details in respect of the intended recipient, and secondly, that Nasim Khan was no longer financially involved in the operation. Furthermore, London believed Mark had not been told of the earlier refusal of the operation and the reasons for it. In fact, he had been told of the reasons for the refusal of the operation. London therefore granted permission to proceed on a false basis.

The appellant places on these events a construction adverse to the integrity of Bragg. This is not accepted by the respondent, who points out that notes apparently maintained by the officer in the case during the trial, or preparation for the trial, make it plain that Bragg told the prosecution team that he had told Mark that it was OK for Mark to tell Nasim Khan that the importation was a controlled delivery. The appellant responds that if the significance of this had been appreciated by the prosecution team, the trial should not have taken the course that it did, and in particular, as will be seen, Mark’s lies should not have gone unremarked. The explanation for these anomalies lay at the heart of an intended abuse of process issue raised by the appellant which, in the light of the Crown stance on the appeal generally, the Crown has not considered it necessary to resolve.

The drugs were eventually collected on 4 April 1991, and were transported to London on 16 April. Mark followed and by the 19 April he was established at the Birmingham Holiday Inn.

In common with other cases, the following days were characterized by a series of telephone calls and observations of various of the defendants, potential or actual, visiting the hotel, or meeting Mark at various locations including Birmingham New Street Railway Station, and a local McDonalds restaurant. At one of these meetings a sample was passed.

Amongst the telephone calls made in this period was a call to Nasim Khan, making it plain that he retained a close financial interest in the intended importation notwithstanding his knowledge that it was a controlled delivery. As the Court of Appeal put it in the original appeal in this case:

“It was the case for the Crown that Nasim would obviously not release the heroin until he had been paid, and that the efforts to raise money were to secure the release of the drugs.”

There was evidence of £6,000 having been transferred by the purchasers to Khan shortly before the arrests. The defence makes the point that Mark and Nasim Khan therefore appear to have made £18,000 between them as a result of this controlled delivery.

The arrests took place on the 26 April 1991. Taj had driven Farooq and Ramzan to the hotel, but had remained in the car whilst his co-defendants had entered the hotel, gone to Mark’s room and taken possession of the drugs.

As indicated above both Ramzan, the instant appellant and Farooq, ran variants of set up in the trial. Under cross examination, Mark gave a lying account of the role of Nasim Khan. The jury was allowed to believe that Nasim Khan was a genuine supplier, believing himself to have been involved in what was intended to be a genuine criminal importation of heroin. In fact for the reasons outlined above, Nasim Khan knew that the operation was a controlled delivery. The jury was left with an entirely false impression as to the instigation of the operation, and the motives of important players in the operation.

The appellant has identified two points arising during the trial. First it is suggested that the summing up reveals Bragg to have been not entirely candid about his knowledge of Nasim Khan. He having been cross-examined in some detail about the handover of the drugs, the summing-up records the following:

“Mr Bragg was cross-examined at some length as to whether or not he knew or had ever met Nasim Khan, and you remember his answers. He would have been only too delighted to meet him but he was rather elusive and Jamil certainly did not want them to meet” [JSB p. 24-25].

The respondent points out that this is a short passage, summarizing a long cross examination and is an insufficient foundation upon which to base an allegation against Mr. Bragg. In any event, if Mr. Bragg regarded Nasim Khan as a ‘sub-source’, he might have understandable reasons for minimizing the information he revealed in a public forum.

Of greater importance is the substantive defence of set up by Mark and Nasim Khan. The appellant sought to impugn the integrity of Mark and Nasim during the trial. His ability to do that was constrained by non-disclosure. Most obviously the telex sent by Bragg on 28 January 1991, which we have set out above would have assisted the appellant in showing that Mark and Nasim were acting in concert.

Mark gave evidence during the trial. A manuscript note of that evidence still exists. The Court is obliged to proceed on the basis that the handwritten note is an accurate summary of the evidence given at trial, and neither party invites us to do anything other than that. In the course of that cross examination, defence Counsel established in a passage quoted in full below, that Nasim had supplied Mark with heroin in Mark’s earlier controlled delivery operations. That provided the background to the defence central suggestion, namely that Mark and Nasim were acting together. It will be seen that Mark denied this.

That denial was a lie. It is plain now and the prosecution was in possession of material which made it plain at the time that the denial was untrue. Its falsity should have been appreciated and brought to the attention of the Court.

Defence counsel (Mr Kadri QC, who had previously represented Abdul Quddus at the Bridport/November Express trial): You were Gulab Khan who got drugs from Shenwari?

Mark: Yes

Kadri: What was the name of the person who introduced you to Shenwari – Nasim Khan?

Mark: Might be

Kadri: That was the case of Altaf Hussain

Mark: Yes [CCRC, Tab 264 p. 2]

…

Kadri: When we adjourned yesterday I was asking about 1986 – was that your first involvement with drugs in this country? [Operation Noodle]

Mark: Yes

Kadri: Was it 12kg or less or more?

Mark: 12kg

Kadri: And you got them from Nasim Khan?

Mark: Yes [CCRC, Tab 264, p. 7]

Mark then confirmed that Nasim Khan knew his real name (p. 8 and see also p.1); and that following the arrest of the UK recipients in Op Noodle, Mark had faced a Jirga in Pakistan (p.9)]

“Kadri: …That Nasim Khan in a year’s time, having lost his drugs gave you another 2kg in September 1987. [This was Op Bridport, Altaf Hussain’s case]

Mark: Yes” [CCRC Tab 264 p. 10]

Later, in cross-examination on behalf of one of the other defendants, Mark appeared to confirm that in each of his previous CD cases [i.e. Operation Noodle (1986) and Bridport/November Express (1987)], Nasim Khan had been the supplier [CCRC Tab 268 p. 3D]. It was put to Mark in cross examination at the Operation Dire trial that there was no way that Nasim Khan could be a genuine supplier who had had his fingers burnt by Mark three times in a row:

“Defence counsel (Mr Ashe-Lincoln QC): I didn’t put this to you formally, but I will now. You and Nasim Khan obviously had an arrangement between you to form drug rings, didn’t you, on which you could inform?

…

Mark: No sir [CCRC doc 268 transcript of 5 Feb 1992 p.1]”

It had earlier been put to Mark by Mr Kadri that:

“Kadri: You said in [the case of Altaf Hussain] if Nasim Khan knew your name, he would kill you.

Mark: Yes

Kadri: But he didn’t kill you

Mark: No, he still doesn’t know anything [CCRC doc 264 p2]”

It is accepted by the prosecution that Mark’s answers, highlighted above, were untrue. The significance of this to the defence of set up was unknown to the trial judge. He summed up the case on a false basis. Thus, the judge warned against speculating about what might have happened in Pakistan (see summing up p. 7). He told the jury to judge Mark’s character against the evidence in this case – the telephone conversations, all recorded and transcribed, the meetings in Birmingham and the events on the video and the recording in the Holiday Inn (p. 7). It was noted that although Nasim Khan’s name had been heard a lot in the case, it was not known where he was (p. 13). He referred to Bragg’s evidence that he did not have any details in relation to Nasim Khan.

In these circumstances, whilst there was other evidence compelling against Ramzan, in the light of the Pendleton test as has been consistently applied by the Crown through these and related proceedings, the Crown accepts that a jury aware of the true position might have come to a different verdict as against Ramzan. We agree.