LORD JUSTICE RICHARDS: Following a trial at Birmingham Crown Court before Mr Recorder Nicholls and a jury, Munaj Choudhury was convicted on 2nd October 2007 of possessing a Class A drug, diamorphine. The jury were unable to reach a verdict on the same charge in respect of his co-accused, Zaheer Abbas, who was then retried at the same court before Mr Recorder Dove QC and a jury and was convicted on 11th January 2008. On 22nd February 2008 Mr Recorder Nicholls sentenced Choudhury, then aged 20, to 15 years' detention in a young offender institution and sentenced Abbas to 15 years' imprisonment with a recommendation for deportation. In each case time spent in custody on remand was ordered to count towards sentence.

Choudhury appeals against conviction by leave of Swift J. Abbas' application for an extension of time to apply for leave to appeal against conviction was referred to this court by the Registrar. We have granted leave.

The facts were that on 17th April 2007 the police stopped a Vauxhall motor car travelling north on the M1 motorway. Abbas was the driver and Choudhury was the front seat passenger. In the boot of the car, that is to say the hatchback area, were two black holdalls containing a total of over 39 kilograms of heroin, with purities varying between 49 per cent and 68 per cent and having an estimated street value of close to £2 million.

The car had been hired on 7th April for a 12-day hire period by a man who produced a driving licence in the name of Abbas. For at least some of the period between then and 17th April the car was under police observation. On 11th April Abbas was observed driving the car first in Birmingham City Centre and then in the evening in London. He was seen to park outside an address in Enfield and subsequently to stop at an address in West Ham, where he and another man, not Choudhury, were observed getting out of the car. On that day there was a substantial number of telephones calls between Abbas and a man called Raza.

Between 13th and 16th April there were further observations of the car in the Birmingham area. Then, on the evening of 16th April, there were a number of calls between Abbas and Raza. On 17th April telephone traffic began at 04.35, with a call from Raza to Abbas, followed by a call from Raza to Choudhury at 04.36. There followed a series of calls or attempted calls until 05.02 between Raza and Abbas and between Choudhury and Raza. The car was observed on the move at 05.25 and was subsequently seen heading towards London. Between 05.31 and 05.34 there were three phone calls to Raza from a man referred to at the trial as "KMA". Thereafter there followed a series of telephone calls between Choudhury and Raza, Abbas and Raza and Choudhury and KMA, until 08.23, around which the holdalls were handed over in an industrial park in London by KMA to Abbas, who placed them in the boot of the car. At 08.32 there was a further call from Abbas to Raza.

From 08.44 onwards the car was seen heading north up the M1. At 10.00 hours Choudhury telephoned Raza. At 10.04 the car was pulled over by the police. At that point it was on the M1 north of the M6 junction for Birmingham.

The prosecution case against both appellants was that they had joint control over the holdalls and they knew that the holdalls contained drugs. The case for Abbas was that he believed he was collecting car parts and had no idea that the holdalls contained drugs. The case for Choudhury was that he did not know the holdalls contained drugs and he had no control over the holdalls.

Abbas gave evidence, in substance the same at each trial, that he had met Raza for the first time a few days before 7th April. Raza offered him work in the form of collecting some car parts from London for which Abbas would be provided with the use of a car and paid £150. They exchanged telephone numbers and Abbas gave Raza his driving licence to enable Raza to hire the car. The car was delivered to his home address. On 11th April he had been driving the car in Birmingham and lent it to a friend. Later the same day he had received a call from Raza and was told to meet Choudhury at a take-away shop from where they would go to London to collect the car parts. Raza told him that Choudhury would accompany him to London to provide directions. They set off for London using a programmed satellite navigation system. Choudhury used Abbas' telephone to speak to Raza as his own telephone was out of credit. They arrived at some flats and waited. Raza then telephoned however and told them that the car parts had not yet arrived. They therefore drove to meet Abbas' friend and his cousin in West Ham. Once there Choudhury got out of the car with a friend whilst Abbas and the cousin drove off to find somewhere to park. This was given as a possible explanation as to why the police did not observe Choudhury in the car on that date. Abbas said that he spent the night in London with his friend and with Choudhury.

On 17th April, on Abbas' account, he was telephoned at about 04.30 by Raza who told him that the spare parts were now available. He picked up Choudhury from a petrol station as instructed and went to meet Raza who spoke with Choudhury before explaining to Abbas that Choudhury would accompany him as before to provide directions. They arrived in London at an industrial park where Choudhury made a number of telephone calls. A lorry then arrived and the driver handed over two bags which Abbas placed in the boot of the car upon Choudhury's instructions. He did not look inside the bags and he had no reason to think that they contained anything other than car parts. He said he had two telephones, because one was a Pay As You Go phone on which his family and friends would call him, whereas the other was a contract telephone on which he could make free calls. There were no contacts stored on that phone as the contract was about to run out.

Choudhury, for his part, gave evidence that he was a student at Leicester University. He had been introduced to Raza in 2005 and Raza had visited him at university. He denied having gone to London with Abbas on 11th April. He said the first time he had met Abbas was on 17th April. His evidence was that on 16th April Raza telephoned him to say that he was thinking of going to London the following day to conduct some business and asked Choudhury whether he would like to come along. He telephoned again early the following morning. Choudhury missed the call but telephoned him back. Raza said that he had decided to go to London and after giving it some thought Choudhury called him back to say that he would go too as he was bored with revision. Raza said that someone would pick him up from a local petrol station. He was picked up from there by Abbas who he said could not speak English. They drove to Raza's home, where Raza got into the car. Raza said that Abbas was going to London but that he, Raza, could not go after all as he had training to do. He produced a satellite navigation system which had been pre-programmed and asked Choudhury to show Abbas how to use it. Choudhury decided to go to London even though he had no idea why Abbas was going and did not ask Raza about it.

When they got to London they pulled up in a road near Park Royal. Abbas made a telephone call and then after waiting 10 minutes Choudhury telephoned Raza to find out what was going on. Raza told him to "chill out". After a further wait, Choudhury telephoned Raza again and was told that Abbas had to meet someone and Choudhury was needed to translate from Urdu. Choudhury explained that he could not speak Urdu but was told to do the best he could. Raza also gave him a telephone number which he entered into his mobile telephone under the name "KMA", which he said was the result of him simply randomly pressing the telephone keys when he entered the name. He then telephoned KMA and eventually got directions to go to a petrol station in the area. At that petrol station a lorry turned up. The driver asked them to follow him and they did so until they got to an industrial estate. Abbas pulled up behind the lorry, got out of the car and then followed the lorry driver out of Choudhury's view, returning after 2 or 3 minutes with a large holdall which he put in the boot before going to collect a second bag, which he also put it the boot. Choudhury said he did not get out of the car or speak to the lorry driver. Abbas got back into the car and drove off. Choudhury, thinking that what had happened was not normal, called Raza who told him not to worry and he would explain when Choudhury got back to Birmingham. Choudhury said that he slept for most of the journey back and woke up realising that they had missed the turning for Birmingham. It was very soon afterwards that the police stopped the car. He did not know that the holdalls contained drugs and would not have gone to London had he known drugs to be involved. He denied control over the holdalls but accepted that he knew they were in the boot of the car and he could have had access to them during the journey had he so wished.

As we have indicated, neither defendant's account was ultimately accepted by the jury. The jury at the first trial accepted the prosecution case in relation Choudhury. The jury at the second trial accepted the prosecution case in relation to Abbas.

The issue on which leave to appeal against conviction has been granted to both appellants concerns the application of section 28 of the Misuse of Drugs Act 1971, subsection (2) of which provides that it is a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove if he is to be convicted of the offence charged. In addition, subsection (3)(b)(i) contains a particular and more specific provision as to proof that the accused neither believed nor suspected, nor had reason to suspect that, to apply it to this case, the contents of the holdalls were controlled drugs. A crucial part of the defence of each of the appellants, of course, was that he did not know or suspect or have reason to suspect that the holdalls did contain controlled drugs.

It has been held that in order to render it compatible with the Human Rights Act 1998, section 28 is to be read as imposing only an evidential burden, not a persuasive burden, on the accused (see R v Lambert[2008] 2 AC 545, [2001] 2 Cr App R 551). The persuasive burden remains on the prosecution throughout. Unfortunately, this was overlooked both by counsel and by the Recorder in each of the trials with which we are concerned. Thus in the first trial the Recorder, having given a direction in terms which made clear that the burden lay on the prosecution to prove in relation to each defendant that the holdalls were in his control and that the holdalls contained heroin, went on to say:

It is submitted on behalf of Choudhury, and accepted on behalf of the Crown, that the Recorder was thereby guilty of a clear misdirection. He should not have directed the jury that the burden of proof, as opposed to the evidential burden, in the matter of knowledge lay on the defence. It is very regrettable that counsel did not identify this point at the time, either when proposed directions were being discussed with the Recorder or indeed when the direction was given in those terms. It is clear that the Recorder did not get the assistance from the Bar that he should have received. We have been told that the then current edition of Archbold was not as clear in respect of the matter as the current edition, but that does not provided an adequate excuse for what occurred. It is right to make clear that Mr Price, who appears for Choudhury before us today, did not appear at the trial.

A similar problem arises in relation to the second trial, the retrial of Abbas. In that case the Recorder's initial direction to the jury was correct. He said:

We have been referred to what happened later in the trial, after the jury had retired. They sent a note to the judge in respect of the direction relating to the section 28 defence, the result of which was that the judge repeated the terms of his direction, again telling them that the burden of proof in respect of the matter lay on the defendant to prove the defence. On this occasion that direction was not prefaced by the more general direction concerning the burden of proof on the Crown.

It is submitted on behalf of Abbas, and here too accepted by the Crown, that in the retrial, in the passages to which we have referred, the Recorder was again guilty of a misdirection. Here too that is plainly correct. Again, it was the result of a regrettable failure by counsel to give the Recorder appropriate assistance.

A further point raised in relation to the summing-up in respect of Choudhury concerns the issue of control. As we have said, the Recorder made it clear to the jury that one of the matters that the prosecution had to prove in order to prove possession was that the holdalls were in the control of the defendants. He gave the example of someone slipping a packet of heroin into a person's pocket without his knowledge or hiding it in his house without his knowledge. He said that a person knowing nothing about it would have had no control over it; it was only if he knew about it that he would be able to do something about it, either dispose of it or deal with it in some way. It was not disputed, he said, that Abbas had control of the holdalls in the sense that he had placed them in the boot of the car and was driving the car. No such concession was made on behalf of Choudhury. The Recorder continued:

That particular submission is one that we reject. We are satisfied that the Recorder gave an adequate direction on the issue of control, making it sufficiently clear to the jury what the prosecution had to prove on this aspect of the case, and leaving it for them to decide whether on the facts control had been proved.

We come back to the fact that we are concerned in each case with one misdirection concerning the burden of proof on the defence under section 28 of the 1971 Act. What we have to ask ourselves in each case is whether that misdirection rendered the conviction unsafe. The courts have recognised that there can be circumstances where such a misdirection does not render a conviction unsafe. That was the position in Lambert itself. Mr Burrows QC, for the Crown, has drawn particular attention to the observation of Lord Steyn, at paragraph 43, where, he said:

Mr Burrows submits that in this case, the jury having rejected, as they plainly did, Choudhury's first line of defence on control, the likelihood was that they would reject his second line of defence, concerning knowledge, and that likelihood becomes an inevitability when one looks at the particular features of the evidence in this case. It is said that the evidence was so strong that the jury would inevitably have convicted if the correct direction had been given. The matters to which Mr Burrows has drawn our attention are, first, Choudhury's explanation for his involvement in the trip down to London, which it is said was so unlikely as to be fanciful. Secondly, the fact that he took with him two mobile telephones. One was new, not registered to him and was used almost exclusively for contact with others involved in the drugs operation, namely Raza and the man called KMA. This was, it is submitted, clearly "a dirty" telephone. Thirdly, Choudhury had stored the number for Raza under a false name of "Georgina" and his explanation for storing the number for the contact in London under the letters "KMA" was so unlikely as to be fanciful. Fourthly, it is submitted to stretch credibility beyond breaking point to suppose than an innocent person here would have been in contact by telephone with those involved in the drugs operation at the time that the drugs were collected and would have been allowed to witness the collection of the drugs and to travel as a passenger in a car where he could gain access to the drugs. Fifthly, the point is made that Choudhury was arrested not on the way to Birmingham where Raza was, but after the junction for Birmingham and at a point more consistent with his going to Leicester where he himself was based.

Mr Price, for Choudhury, in effect acknowledges that the case against his client was very strong but he draws attention to the fundamental nature of the error that occurred in this case, involving a breach of Article 6 of the European Convention on Human Rights. He submits that notwithstanding the perceived strength of the case against the appellant, the trial could not be said to be fair or the conviction a safe one. He makes the observation that at the first trial the case against Abbas would appear to have been stronger than that against Choudhury, yet the jury did not agree on the guilt of Abbas, which supports the view that it was not an inevitable outcome that, if correctly directed, the jury would have convicted Choudhury.

As regards Lambert, Mr Price draws attention to the fact that in the judgment of Lord Hope, at paragraph 52, it is pointed out that the correct direction under section 28 would have been in substance indistinguishable from the direction that the judge in that case in fact gave on the issue of the defence of duress. Lord Hope said that the jury had rejected the defence of duress and it was for that reason that he reached the conclusion that the jury would inevitably have reached the same decision in respect of the defence under section 28, had the correct direction been given. At paragraph 60 Lord Clyde makes very much the same point. It is not something expressly referred to by the other members of the House who expressed views on the inevitability that the jury would have reached the same conclusion, if correctly directed, but it is something that needs to be borne in mind as possibly underlying the views expressed in that case.

Mr Price further submits that in all the other cases that have come before the courts involving a misdirection of the kind in question in this case, the convictions have been quashed. One example that he cites is that of R v Carrera[2002] EWCA Crim 2527, where the court looked at Lambert, in particular at the passages from the judgments of Lord Hope and Lord Clyde to which we have referred. It made the point that each case must turn on its particular facts and the importance of the direction on the burden of proof must be considered in that context. But it began with the proposition that the burden of proof is a matter of fundamental importance as appears from Article 6(2) of the convention (see paragraph 13 of the judgment).

Having referred to points made by the Crown in support of the strength of the evidence against the appellant in Carrera the court concluded at paragraph 16:

The submission made by Mr Price is that this appellant may have been convicted because the jury felt that he had failed to prove, on the balance of probabilities, that he had no reason to suspect that these were controlled drugs. It is very difficult for a defendant to discharge a legal burden in circumstances such as this, so there is a possibility, it is said, that he may have been convicted on a false legal basis. Thus, even though there is a high risk he could have been convicted in any event, one cannot say, as the submission goes, that the conviction is safe. At the conclusion of his submissions Mr Price took us back to Article 6 and to the commentary on it, at paragraph 7 - 51(c) in the 2009 edition of Archbold, in support of the proposition that a conviction obtained in breach of Article 6 cannot be regarded as safe.

Much the same process of argument applies in relation to Abbas. Here, too, Mr Burrows makes a number of telling submissions about the strength of the evidence against the appellant. He relies on the fact that the Recorder, before giving the erroneous direction, did direct the jury correctly and in clear terms that before they could find the appellant guilty of possession they must be sure not simply that he had custody or control of the holdalls but also that he knew the holdalls to contain drugs. So he suggests that the jury, following the Recorder's direction, would not have convicted Abbas unless sure that he knew of the drugs.

He makes a number of points on the evidence: first, Abbas' explanation for taking time off work and thus being available for the trip to London was so unlikely as to be fanciful. He said he was sick, yet he went out to play snooker with friends in the early hours of 11th April and drove down to London on the night of 11th April and then drove down to London again on 17th April. Secondly, Abbas lied about the trip to London on 11th April in his first interview, in which he said he had not been to London for Raza before 17th April and he had last been to London with friends some three or four weeks earlier. Thirdly, Abbas took with him two telephones and, in contrast to other days, used one of them to call Raza although Raza's number was not stored in its memory, while Raza telephoned him on the other. Abbas' explanation for this, it is said, was so unlikely as to be fanciful. The same point is made as in relation to Choudhury that it stretches credibility beyond breaking point to suppose that an innocent person would have been involved in this way in a drugs operation. Another point made in relation to Abbas, as it was in relation to Choudhury, is that he was arrested not on the way to Birmingham, where Raza was, but on the way to Leicester. Abbas' explanation for this, that he had missed the turning to Birmingham, was so unlikely as to be fanciful and was demonstrably false as at the retrial, unlike the first trial, there was evidence that the satellite navigation system had been set for the university of Leicester, where, of course, Choudhury was based.

For Abbas, Mr Metzger seeks on the facts to try to soften the force of the points as to the strength of the evidence. He points to the existence of evidence from a handwriting expert suggesting that Abbas was not the author of the signatures on the car hire form and that the Crown failed to hold an identification parade to support the contention that Abbas was one of the two men who had hired the car on 7th April. Perhaps more importantly, he says that the Crown did not call evidence to rebut the evidence of the defence psychologist, who said that Abbas was of low intelligence and low esteem, which may have led him to question situations less than someone of higher intelligence and which indicated that he was suggestible. It is said that if the burden had not been placed on Abbas, as it was by the erroneous direction, the psychologist's evidence could have had an effect on the minds of the jury in considering whether the prosecution had proved knowledge, suspicion or reason to suspect that the holdalls contained drugs. More generally, however, Mr Metzger adopted Mr Price's submissions on the law.

The conclusion that we have reached, with a degree of reluctance, is that the main thrust of Mr Price's submissions, as adopted by Mr Metzger, is correct. There was in this case a fundamental error in relation to the directions given in respect of each appellant in placing upon them a persuasive burden of proof that on the authority of Lambert they did not have to discharge. It was an error involving a violation of Article 6(2) of the Convention.

We do not accept that in such circumstances a conviction can never be safe: Lambert itself is to contrary effect. It must all depend on the circumstances of the particular case. But we note that Lambert apart, no conviction has in practice been upheld where a misdirection of this kind has occurred and we note too that what was said by their Lordships in Lambert can be explained by reference to the special feature of that case as identified in the passages of the judgments of Lord Hope and Lord Clyde to which we have referred.

Undoubtedly the prosecution evidence here was very strong. On the other hand, we note that at the first trial the jury were unable to agree in relation to Abbas. At the retrial of Abbas, it is striking that the jury, after their retirement, asked the Recorder to repeat his direction in relation to the section 28 defence, showing that this was a matter of central concern in the jury's deliberations.

It seems to us that one cannot dismiss the possibility that, in relation to each of these appellants, the jury convicted him although unsure that he had the requisite knowledge that the holdalls contained drugs. There is a possibility that they were misled by the erroneous direction in relation to the section 28 defence into convicting the appellants when, had they approached the matter by reference to the correct persuasive burden of proof throughout being on the prosecution, they would have acquitted. That may be an unlikely event, having regard to the strength of the evidence, but it is not one that we can altogether dismiss. It follows that the convictions must be regarded as unsafe and that both convictions must be quashed.

MR PRICE: Your Lordship there now follows from that an application on behalf of Mr Choudhury for a defendant's costs order. The position was that the family were not satisfied with the events at the trial but were unaware of course of the error which has led to this successful conviction. They paid for transcripts of the whole of the evidence and the summing-up and as a consequence of the instructions of new solicitors and new counsel, namely myself, that the error was detected when I read those transcripts and was able to put aside such other complaints as may be made and focus on the matter which has led to the quashing of this conviction.

LORD JUSTICE RICHARDS: This is in respect of the period prior to the representation order?

MR PRICE: Yes, only in terms of obtaining leave to appeal against conviction and of course sentence, the work done on that material by solicitors and by counsel. I would respectfully invite -- the provisions are here. Your Lordship is familiar with them in relation to--

LORD JUSTICE RICHARDS: We need not spend time with submissions on them. Mr Burrows, do you have anything to assist us on?

MR BURROWS: I had not been notified of this point, so I have not, I am afraid.

MR PRICE: It is not against the Crown. I am asking for a defendant's costs order.

LORD JUSTICE RICHARDS: That is why I put it in terms of 'assistance' rather than submissions from the Crown. A defence costs order from Central Funds?

MR PRICE: To be taxed.

LORD JUSTICE RICHARDS: We will grant you that order.

MR PRICE: I am much obliged to your Lordships. These two appellants were on bail--

LORD JUSTICE RICHARDS: Let us consider if there is any further application from the Crown in relation to retrial.

MR BURROWS: I do make an application for a retrial. The amount of drugs involved was very substantial, nearly 40 kilograms of heroin. My Lords know the level of sentence which was imposed. I know that was subject to an appeal. But it is clearly these are offences which would warrant a very substantial sentence if there be conviction.

MR PRICE: As your Lordships would anticipate, bearing in mind that this defendant is so young, 19 at the time of the commission of the offence, 20 at the time of conviction and sentence, and of previous good character, having spent a substantial time for such a young man in custody to date, we would respectfully invite the court not to order a retrial. Perhaps relying apart on the fact that there are errors on the part of lawyers and the learned judge, and that is a factor which I would invite the court to take into account as to whether it is appropriate to order a retrial. There is little more that I can possibly advance.

LORD JUSTICE RICHARDS: Mr Metzger?

MR METZGER: I support those submissions. Your Lordships have already heard about the particular circumstances of Mr Abbas' case. He may have learnt a little more English in the time that he has been, I suppose, incarcerated, but there is nothing further that I can say than that your Lordships, in our respectful submission, do have a discretion.

LORD JUSTICE RICHARDS: In the light of the seriousness of the charges against these appellants and the strength of the evidence that we have referred to in our judgment, we are satisfied that the interests of justice are in favour of ordering a retrial and we so order.

MR PRICE: About the bail situation, I did make an enquiry, not unfortunately of my client, it may be that I was receiving mistaken information. I need to check that ever so briefly before pursuing the bail application.

LORD JUSTICE RICHARDS: Even if you do pursue the bail application, we are not minded to grant bail in a matter of this seriousness. I think we can say now that the appellants will be remanded in custody pending a retrial. If Mr Metzger has anything to say, we will of course listen to it but we are very strongly of that provisional view.

MR METZGER: Nothing that is likely to change that provisional view. I have checked my notes. They were in custody.

LORD JUSTICE RICHARDS: It is a single count, is it not, they were charged with? We quash that count and order a retrial on it. A fresh indictment is to be preferred. We direct that there be a rearraignment on the fresh indictment within two months. We direct, as we have said, that the appellants both be held in custody pending the retrial. We make representations orders in respect of the retrial for junior counsel and solicitors. We will direct that a retrial should be in front of a circuit judge. We will direct that the venue for the retrial should be determined by the presiding judge of the Midlands circuit. I think those are all the matters that you need from us.

MR BURROWS: My Lord, yes.

LORD JUSTICE RICHARDS: We are very grateful to you all.