Mahmood & Anor, R v

On 9^th August 2012 at the Crown Court in Teesside the appellant Majid Khan (aged 40) and Asad Mahmood (aged 45) were convicted of conspiracy to supply a class A drug, diamorphine, within the Teesside area (count 1 on the indictment they faced with other defendants). On 23 November 2012 Khan was sentenced to 15 years’ imprisonment and Mahmood to 9 years’ imprisonment. Khan was also convicted on 9 August 2012 of conspiracy to supply a class B drug for which he received a consecutive sentence of 18 months’ imprisonment, making a total sentence in his case of 16 years 6 months.

They had numerous co-accused. Imran Bashir pleaded guilty to count 1 on re-arraignment after the jury was sworn and was sentenced to 7 years’ imprisonment, to be served consecutively to an unrelated sentence of 14 years’ imprisonment. Mohammed Akram was convicted of counts 1 and 2 and sentenced to a total of 10 years’ imprisonment. He was in breach of a suspended sentence, four months of which were activated, to be served consecutively to the present sentence. Qasir Razaq was convicted of count 1 and sentenced to 9 years’ imprisonment. Asif Hussain pleaded guilty to count 1 on re-arraignment and was sentenced to a term of imprisonment of 8 years 1 month. Terence Agiadis pleaded guilty on re-arraignment to count 1 and was sentenced to 4 years 6 months’ imprisonment. Tobias Williamson was convicted of count 1 and sentenced to 3 years 7 months’ imprisonment. Allyah Bashir pleaded guilty on re-arraignment to money laundering (count 3) and sentenced to a Community Order of 150 hours unpaid work to be completed within 12 months. Urfan Hussain, Ali Rafiq, Palminder Chohan and Karl Waterfield were acquitted of count 1 and discharged. Majid Hussain pleaded guilty to count 1 and was sentenced to 9 years’ imprisonment.

Before this court Asad Mahmood appeals against conviction by leave of the single judge, limited to ground 1, and he renews his application for leave in respect of ground 2. He also renews his applications for an extension of time (2 weeks) for leave to appeal against sentence. The grounds of appeal as regards sentence are dated 11^th December 2012 and the Form “NG” was signed 13^th December 2012; the grounds were received on 3^rd January 2013.

Majid Khan also appeals against conviction by leave of the single judge, limited to grounds 1 and 3. He renews his application in respect of ground 2 for which the single judge refused leave to appeal. He also renews his applications for an extension of time (2 months) for leave to appeal against sentence after refusal by the same single judge. Counsel disputes that the application was out of time. The perfected grounds relating to conviction and sentence, although dated 22^nd November 2012 were not received by the court until 7^th February 2013 (see the Criminal Appeal Office date stamp).

In summary, the prosecution of these various offenders followed an investigation which had commenced in Cleveland and eventually extended to Lancashire and Bedfordshire. The indictment covered the period from early June 2011 to January 2012. The prosecution case was that each of the defendants was involved in a conspiracy to supply heroin (count 1). It was alleged that Majid Khan led the principal criminal organisation, employing Asif Hussain as his lieutenant until the latter’s arrest in July whereupon Qasir Razaq took over. Asad Mahmood was working for his cousin, Imran Bashir, who, although in prison, was organising the sale of heroin to Majid Khan in Middlesbrough. Almost as a sideline, it was alleged Majid Khan had also been involved in the supply of cannabis (count 2).

The issues raised on these appeals and renewed applications are:

On Friday 24 June 2011 the police were observing the Shine carwash business in the centre of Middlesbrough, which was run by Majid Khan. It was alleged that Asif Hussain handed a quantity of money to Majid Khan. Asif Hussain then left the premises in a Vauxhall Vectra taxi which was driven to Clough Close where it stopped. He then travelled to a second location called Vernon Court in Stainton Village. At 3.35pm Tobias Williamson arrived at Vernon Court and he exchanged something with Asif Hussain. Williamson was followed when he rode off on a mountain bicycle. Although the police briefly lost sight of him, he was eventually detained. Agiadis contacted him at this time on his mobile telephone. No package was found and it was suspected he had thrown it away shortly before he was stopped. A number of drug-related items were found in Williamson’s room, including plastic bags and scales carrying traces of diamorphine and cocaine.

The Vectra taxi, in the meantime, was driven to the Shine premises, arriving at 3.45pm. Agiadis arrived shortly after Williamson’s arrest and was seen to use his telephone. Asif Hussain then returned, followed minutes later by Majid Khan. The prosecution relied upon the schedules of telephone activity between Majid Khan, Asif Hussain, Tobias Williamson and Terence Agiadis in the hours prior to the arrival of the Vectra at Vernon Court and following Williamson’s arrest, in conjunction with the observation evidence, to support the contention that what had occurred was an arrangement for the purchase and delivery of heroin. It was alleged that Agiadis had bought a quantity of heroin from Majid Khan using Asif Hussain as the go-between, and Williamson had been delegated by Agiadis to collect and store the drugs. It was said that Agiadis tried to distance himself from these events following Williamson’s arrest.

188 Clough Close (which it was alleged was a safe house for drugs) was apparently unoccupied but it was visited regularly especially by Asif Hussain who appeared to be a key holder. He visited the premises on a number of occasions in July 2011, staying a few minutes each time, in the period leading up to his arrest on 22 July 2011 when just under a kilogram of heroin was in his possession. At the time the premises were searched there was no forensic evidence linking the premises with drugs. CCTV coverage of the premises had not been continuous due to apparent lighting problems, but there was evidence of visits by Asif Hussain, Mohammed Akram and Majid Khan, the last visit occurring on 12 August 2011. The prosecution alleged that by 24 August 2011 Clough Close was no longer being used as a safe house and had been replaced by a flat complex known as the Potteries, and it was alleged that Majid Khan, amongst others, could be identified on relevant CCTV footage.

Majid Khan arrived at Shine shortly after midday on 22 July 2011 driving a black Volkswagen Touareg. At about 3.30pm he spoke with Asif Hussain outside the premises. Asif Hussain left in a yellow van bearing the Shine logo followed by Majid Khan in the Touareg. At 4.02pm the Touareg stopped in Angle Street where it was approached by an Asian male. A blue minibus, bearing the logo of Blueline taxis licence number B17BYS, pulled up next to it. Thereafter, the police followed the minibus as it headed south towards Manchester. Urfan Hussain was driving with Asif Hussain in the passenger seat. The vehicle went to an address in Brewerton Road in Oldham. It was met by two other vehicles and it was led it in convoy through the streets of Oldham. This appellant was in one of these cars, a Ford Focus. In due course (about 20 minutes later) the minibus headed back towards Middlesbrough, and en route a marked police car directed it to stop in a layby on the A19. As a uniformed officer approached the driver’s door, the minibus drove off and the police car followed in pursuit. Eventually the minibus stopped on the side of the road, where Urfan Hussain was arrested. Asif Hussain got out and ran into undergrowth carrying a grey drawstring bag which he threw away, the contents of which were later found to contain two taped packages weighing 492 grams and 593 grams, consisting of diamorphine at 17% purity.

In July 2011 Imran Bashir was serving a 14-year term of imprisonment for conspiracy to supply heroin in HMP Manchester. The prosecution alleged that he was using the prison telephone system to continue supplying drugs through his wife and relatives. Each prisoner was allocated a unique PIN number which had to be entered in order to make telephone calls to approved numbers outside the prison. These were recorded by the authorities and retained for a period of time. Bashir made a number of calls to his wife Aliyah who, on his instructions, then made further calls to other conspirators, whose numbers had not been authorised, in order to establish a conference call. The individual whom Aliyah called most frequently in this context was Majid Khan.

Bashir’s cousin and Majid Khan had been due to visit him in prison on 21 July 2011. Bashir telephoned his wife from prison at about 11.00am. She told him that she had sent ‘Madge’ a text the previous day in order to let him know that he was expected. When she telephoned to confirm the arrangement, Majid Khan told her that something had come up and that he could not make it. Bashir telephoned his wife at 2.30 pm asking to be put through to Fat Boy. Once contact was made, he asked Majid Khan if he had spoken to the Gora (“the white man”) and someone called Lala. Khan had not done so and he was instructed to speak with them. He apologised for being unable to visit and that afternoon Asad Mahmood visited Bashir. Bashir telephoned his wife at 8.00pm that evening. He asked to be put through to Majid Khan, and during the conversation that followed he told Khan that his Masair (an Urdu word for cousin) would be ringing him. When asked which one, Bashir indicated that it was the tall one [Asad Mahmood is 6 feet 2 inches]. Bashir asked if Khan would help Masair, indicating that he would have something for him and that Masair would call in 15 to 20 minutes. Asad Mahmood subsequently called Khan for the first time at 9.43pm and they remained contact the following day.

On 22 July 2011, the day of the seizure in the area of the A19, Bashir asked his wife to ring Fat Boy at 11.49am, and he wanted to know if Khan had spoken to his cousin. Aliyah rang Khan and confirmed to Bashir that they had spoken.

On 23 July 2011, at about 11.30am, Bashir telephoned his wife. He instructed her to ring Fat Boy. She asked him to wait, stating that he had pure numbers for him. Eventually Majid Khan responded. Bashir asked what was happening and received the reply, “Fuck all, man.” He was then told, “They got caught last night, mate.” When asked who, Bashir was told ‘Chacha’ (Asif Hussain’s nickname). He was told that they had gone to meet Masair. Bashir asked ‘With that girl?’ to which the answer was yes. Bashir then asked if both the girls were with him, to which the reply was “I think one and a half.” He was told that they had been held in Khan’s area and that they had been returning. Khan had also said that he did not know if his name had been mentioned. The prosecution contended that the mention of “girls” was a coded reference to kilograms.

The prosecution also adduced evidence that Majid Khan had been in contact with Urfan Hussain (the driver) and Asif Hussain. These three men had travelled together to Amsterdam on 20 May 2011. Amongst the telephone calls made on 22 July 2011 there was a series at around 6.00pm between Asad Mahmood and Karl Waterfield from Oldham and Asif Hussain who was travelling with Urfan Hussain. There was significant telephone contact between the appellant and Majid Khan. These telephone calls continued after the alleged transfer had been made, including a number of calls following the arrests. The prosecution adduced expert evidence in which the telephone contacts, together with the frequency and the timing of calls, were synchronised with the observation evidence. The prosecution alleged that 10 telephone handsets were linked to Majid Khan.

The prosecution introduced evidence of telephone contact between Majid Khan and Majid Hussain on 24 August 2011. During the morning, the former was in Redcar at a carwash called Bubbles where Qaisr Razaq was employed. Majid Hussain, contacted Palminder Chohan who was in Bedford. He drove north from South East England shortly after 12.30pm in a Volkswagen Polo, and CCTV footage showed him at an M1 service station just south of Sheffield at 2.32pm. From there he drove north joining the A 19. Chohan kept in touch with Majid Hussain who in turn kept in touch with Majid Khan. Majid Khan left the Shine premises in a black Ford Focus at 3.36pm. Chohan arrived at Levick Crescent in Middlesbrough and telephoned Majid Hussain at 4.08pm. Thereafter, there was a telephone call from Majid Hussain to Majid Khan, and thereafter Chohan drove to Lambeth Road where he made another call. At 4.21pm Majid Khan and Qaisr Razaq drove to Westmoreland Road. During a number of calls that followed, Chohan was parked nearby in Lambeth Road. They met up at 4.25pm and travelled in the Polo to Brompton Street. Majid Khan, who was followed by Chohan, opened the boot, and he held a blue carrier bag apparently containing something heavy. Mohammed Akram arrived in a taxi. He went to the front passenger seat of the Polo where Razaq was sitting before returning to the taxi. A black Ford Focus parked at the rear of the Polo. The Polo and the Focus then drove away at the same time. The Focus was next seen in Linthorpe Village where Majid Khan had left his own vehicle. He was spotted on foot without the blue bag. Majid Khan returned to Shine, where he met Murad Ali and Qasir Razaq. At 5.56pm all three departed in Majid Khan’s vehicle, which was caught on an automated traffic camera heading in the direction of Hartlepool. The prosecution alleged that the telephone contacts demonstrated that a man by the name of Peter Clark [who did not appear on the indictment] had been engaged to test the purity of the heroin, which was at such a low level that arrangements were made for the drugs to be returned on 27 August 2011, to which we now turn.

On 27 August 2011 Mohammed Nadeem, a taxi driver from Bedford, was in contact with Majid Hussain. He drove his taxi to Middlesbrough, setting off at about midday. At 1.30pm the same day, Majid Khan and Atif Hussain went to Holme House Prison in Stockton to visit Asif Hussain, Atif’s brother, who was on remand following his arrest on 22^nd July. Majid Khan gave the authorities his parents’ address in Middlesbrough as his home address, although he was living with his girlfriend in Thornaby. Before entering the prison he tried to call Majid Hussain. Following the visit, Majid Khan eventually returned to Thornaby arriving at 4.31pm. Nadeem reached Middlesbrough before 5.20pm. He stopped his vehicle in Fairfield Avenue and got out. Majid Khan passed Nadeem’s vehicle on foot on the other side of the road before entering a William Hill bookmaker’s on Acklam Road at the junction with Fairfield. At 5.32pm Nadeem opened the boot of his car and appeared to be handling items inside, before driving to the bookmakers, which he entered. Both were captured on internal CCTV using mobile phones to contact Majid Hussain in Bedford (based on billing records). They left together, and drove in Nadeem’s vehicle to a block of flats called Rockingham Court at 6.10pm. Majid Khan had telephoned Qasir Razaq a few minutes earlier. Within minutes Razaq arrived in the Ford Focus. Majid Khan at this stage had a black holdall. He walked away from the car to the Nadeem’s taxi where the bag was placed in the boot. Nadeem drove south out of Middlesbrough. Police stopped him at the Exelby service station on the A19. A search of the boot revealed a small compartment containing a small package and a satellite navigation device. Inside the package were two smaller packages with a total of 2 kilograms of heroin of 10% to 11% purity wrapped in part of a Daily Star newspaper dated 24 August 2011. The newspaper had a cut which the prosecution alleged was consistent with the drugs having been tested for purity.

On 19 October 2011 a man giving the name Rafiq Ali telephoned Cleveland Auto Services in Newport seeking to hire a car for three days. Shortly afterwards he completed the hire agreement for a Ford Mondeo and produced a driving licence, bank statement and credit card. About two hours after the completion of the rental agreement, the vehicle was driven to Canterbury Grove, a residential cul-de-sac, where a black and yellow Vauxhall Astra was already parked, containing Majid Khan and Mohammed Akram. The vehicles were parked “bumper-to-bumper”. Akram walked to the rear of the Mondeo, opened the tailgate and took out a large black bag which he placed in the rear of the Astra before getting back into the passenger seat. Both cars then left the cul-de-sac. The Astra pulled up in Linthorpe Road. Akram got out and went into the One Stop Shop. He came out after a couple of minutes carrying a white carrier bag. At 5.00pm the Astra was stopped by an unmarked police vehicle. Officers noticed a strong smell of cannabis and told the occupants that the vehicle was going to be searched for controlled drugs. They saw the black bin liner on the rear seat, inside of which were two large clear grip seal bags containing a total of 980 grams of herbal cannabis. Akram was arrested and cautioned and he denied knowledge of the bag, indicating he had just been picked up. Majid Khan made no reply. A white carrier bag contained two packets of clear plastic food bags alleged by the prosecution to have been acquired to divide the cannabis into smaller packages. In interview Majid Khan declined to answer questions; Akram denied knowing anything about the cannabis stating that he was being given a lift. He agreed that he smoked cannabis regularly but had not noticed a smell of cannabis in the vehicle.

The defence case for the appellants on count 1 was that the prosecution was presenting a distorted picture of the evidence, which – properly interpreted – was consistent with their innocence. In respect of count 2, Mohammed Akram indicated that the cannabis seized belonged to him alone and had nothing to do with the other defendants. It was contended there was no conspiracy to supply cannabis.

Majid Khan did not give evidence. His case was that the prosecution evidence was flawed. There was no scientific link between him and any of the seized drugs; he was not linked to any drug’s paraphernalia; and there was no financial evidence in respect of either count.

Asad Mahmood gave evidence, and said he was a self-employed chauffeur. He accepted that he had been in telephone contact with Mr and Mrs Bashir, Majid Khan and Asif Hussain, and he had visited Bashir in prison (who was his maternal cousin). Although he denied being known by the nickname Masair, he agreed that he was referred to in the prison tapes as Asad. He provided explanations for the various telephone calls, which he said were not related to drugs. He had been in Oldham to act as a guide to the Royal Piri Piri restaurant. It was submitted on his behalf that there was no evidence that he was involved with anyone from Middlesbrough or had been involved with drugs.

The issue for the jury on count 1 was whether the combination of the surveillance and telephone evidence, coupled with the seizure of the drugs was sufficient to prove the defendants conspired to supply heroin within the Teesside area. In respect of count 2, in light of the seizure on 19^th October the issue was whether Majid Khan and Rafiq Ali, along with Akram, were involved in a conspiracy to supply cannabis.

The appellant Mahmood has leave to appeal the conviction on count 1 on the basis that the judge erred in admitting evidence of telephone calls from prison. The core argument in this regard, on which certain other subsidiary submissions in this context are dependent, is that since all telephone calls from inmates from the two prisons, HMP Manchester and HMP Full Sutton (apart from to the Samaritans and to defence lawyers), were recorded as a result of a general or a blanket policy, they were inadmissible under RIPA.

Additionally, Mahmood seeks leave to appeal his conviction on the renewed ground that the learned judge wrongly dismissed his application at the close of the prosecution case that he had not case to answer on count 1. The count had been amended to read that the named defendants “between the 1^st day of June 2011 and the 11^th day of January 2012 conspired together and together with persons as yet unknown, to supply a quantity of Diamorphine, a controlled drug of Class “A” within the Teeside area”. The reference to “within the Teeside area” had not formed part of the count as originally drafted. In summary, it is suggested that there was no evidence that the appellant was aware that the drugs were to be supplied to that particular location or that he was part of an agreement which was directed at that particular area.

Majid Khan has leave to appeal the conviction on count 1 on the basis that the court was wrong to admit the evidence of the prison telephone recordings.

Additionally, Majid Khan seeks leave to appeal his conviction on the renewed ground that the learned judge wrongly admitted the evidence of these calls and Mrs Bashir’s telephone number once the prosecution had decided not to proceed against her on count 1.

Majid Khan has leave to appeal on the basis that the prosecution failed in their duties of disclosure to a degree that deprived the appellant of a fair trial.

As set out above, the prosecution relied on the record of telephone calls made by Bashir from to his wife, who in turn set up conference calls to Majid Khan and others. Although the telephone calls were not made to Mahmood, they added to the case against him because he was alleged to be the “Masair” who was referred to in an incriminating context.

On the basis that the calls were intercepted when they were recorded, it was argued they were inadmissible as evidence in these proceedings pursuant to RIPA.

The relevant extracts from this legislation are as follows:

In this case, the prison service intentionally intercepted communications in the course of their transmission by means of a telecommunications system. Whether it was a public or a private system at the point of interception is a question we need not resolve, as it has no material bearing on this appeal, although we note that the prosecution contends that section 1(2) of RIPA applies to this case, because the interception occurred on the “private side” of the telecommunications system before it “attached” to the British Telecom network. Either way, the prosecution submits that section 4 means the interception is lawful if, inter alia, it took place in a prison and it was pursuant of any power conferred by or under rules made under section 47 Prison Act 1952 (see section 4 above).

The relevant rules are the Prison Rules 1999. Rule 34 was amended at the same time Rule 35A was introduced in the Prison (Amendment) (No 2) Rules 2000). It provides:

Rule 35A sets out:

By rule 35A(6):

The relevant directions were contained, first, in the Security Manual (PSO 1000) and, thereafter, in the National Security Framework (PSI 48/2005). The current policy or directions on the interception of communications in prisons (as provided in the extracts from the relevant documents for this appeal) includes the requirement that local instructions must set out arrangements for recording and monitoring the telephone conversations of all category A prisoners, including potential and provisional category A prisoners.

Mr Clifford (a senior executive officer in the Security Group based in the headquarters of the National Offender Management Service) additionally set out the following in his witness statement of 22 June 2012:

“3.

In 1995, Home Office Ministers decided that the existing prisoner cardphone system for prisoner telephone communications did not afford victims and witnesses of crime sufficient protection from unwarranted attention by prisoners. At the same time, the technology used for cardphones was becoming obsolete, which led to the development of the prison PIN phone system. All establishments now have the PIN system (or similar) in place and governors have introduced security regimes appropriate to the security concerns of the establishment. […]

4.

The PIN system intercepts and records all telephone calls made by prisoners, although those subject to legal professional privilege cannot be listened to routinely.” (emphasis added)

It follows that the relevant directions provide for the PIN system, which, inter alia, records all telephone calls made by prisoners, and safeguards are in place to protect calls that are subject to legal professional privilege and, we were informed in oral submissions, calls to the Samaritans (the prisoners submit the telephone numbers of their lawyers and once they are confirmed to be legitimate the calls are not recorded; the same applies to the telephone number or numbers used by the Samaritans).

The argument advanced by Mr Howat on behalf of Mahmood is that the blanket interception of calls of all classes of prisoners constitutes a breach of RIPA; it is said to be ultra vires rule 35A; and it is “outside the scope” of section 4(4) of the Act. Mr Howat’s central submission is that the wording of the relevant part of the rule – “The Secretary of State may give directions to any Governor concerning the interception in a prison of any communication by any prisoner or class of prisoners […]” – has the effect of excluding a blanket policy because the entire prison population is not covered by a rule which allows the Secretary of State to give directions for particular prisoners or classes of prisoners. Mr Howat contended that interpreting the rule so as to cover all prisoners “does too much damage to the English language”.

It is to be observed that the lawfulness of the PIN system has been the subject of consideration by the courts in other cases. In The Queen on the Application of Taylor v. The Governor of her Majesty’s Prison Risley [2004] EWHC 2654 (Admin), the court considered a challenge to the blanket nature of the PIN system (known otherwise as a “call enabling system”) which limits the numbers that prisoners are able to call to a fixed amount; each number has to be submitted for approval prior to being “enabled”. Although the court was not concerned with the aspect of the PIN system relating to the recording of telephone calls, McCombe J observed as follows:

“28.

In the present case, adopting (a) greater intensity of review […], it seems clear that the objective of the Governor’s decision made under the Rules is the restriction of prisoner telephonic communication with the community at large in a manner that would be calculated to encourage or promote illegal drug use in prison and communication with the outside community in areas that would foster crime in other outside circumstances. The measures adopted here are clearly and rationally connected with that objective. It cannot reasonably be gainsaid that the ability of the prison management to control telephone communication can facilitate the prevention of undesirable communications calculated to lead to the consequences of increased drug abuse in prison and criminal activity outside it.”

The judge went on to note that on the facts of the case before him relating to the prison and the occasion in question, the PIN system was necessary and proportionate to achieve just set out objective.

In Regina v Tunde Abiodun [2005] EWCA Crim 09, a case in which the recording of intercepted prison telephone calls was considered by the court, the principal issues under consideration were whether there was evidence that the Secretary of State had applied his mind to the relevant statutory provisions and whether the directions that had been given were necessary and proportionate [41]. In the course of giving the judgment of the court, Clarke LJ set out:

“52.

[…] the PIN system, introduced in 2001, records all calls. Measures were in place, however to ensure that any listening which took place was justifiable and proportionate, having regard to the rules […]. In our judgment both the PIN system and the arrangements made for listening to the calls were […] a proportionate response to balancing security and privacy. There is certainly ample evidence that thought was given to both those aspects of the matter and there is certainly no evidence to the contrary with which to challenge the proportionate approach of the Secretary of state and the Prison Service.

53.

We accept (the) submission that there are many legitimate reasons for listening to calls which satisfy rule 35A, as, for example, in the case of prisoners organising the trafficking of drugs in prison or planning an escape or, indeed, a false alibi. We also accept (the) submission that the rule 35A criteria are wide and that they are in the public domain and this available to prisoners and others […].”

As PSO 4400 entitled Prisoner Communications (dated 4 July 2005) at Annex A makes clear, all prisoners are informed in clear and unequivocal terms that “conversations which take place using prison pinphones will be recorded and may be monitored by prison staff. Pinphones can only be used by prisoners who consent to this”.

In the instant case, the learned trial judge addressed Mr Howat’s argument on this issue as follows (Mr Whittam QC and Ms Masters for the Crown support the judge’s conclusions in this regard):

“First, I see no basis for concluding that in drafting the rules, the phrase ‘any prisoner’ or ‘class of prisoner’ was intended to exclude the situation in which a Secretary of State might give directions to a Governor which applied to the entire population of that prison as a class of prisoner. If it is lawful to make such a direction for any prisoner, it must therefore be lawful to give the direction for all prisoners.

Further, since the Secretary of State has control over all prisons, the approach taken to give directions on a prison by prison basis may be seen as giving directions in relation to a class of prisoner on each occasions, that is to say the class of prison(er)s occupying Her Majesty’s Prison Strangeways for example.

[…]

I see no reason to interpret 35A (1) as preventing the Secretary of State from directing that the regime should apply to the entire population of a prison. I am satisfied that the proper interpretation of the rules compatible with the convention rights and the Human Rights Act is to read Rule 34, which allows restrictions and conditions to be applied to the general population, as providing that same breadth of application when making directions under rule 35A, and that the wording in rule 35A(1) which speaks of a prisoner or class of prisoner is not intended to restrict that power but rather informs the Secretary of State that he may restrict the operation of his direction to a class, which may include the entire population of prison or to a smaller group within a prison perhaps with a qualifying conviction or alternatively to apply the rule to a named prisoner or prisoners.”

We agree. When Rule 34 is read with Rule 35 A, a regime has been created that is clearly intended to enable the Secretary of State to impose restrictions and conditions on the telephone calls made by prisoners either across the entire prison estate or by reference to particular prisoners or classes of prisoners. Rule 34 expressly provides that those restrictions and conditions can be applied “generally” or “in a particular case”. One of the conditions imposed on the prison population is that any calls they make must be via the PIN system, and by Rule 35A(1) the Secretary of State is empowered to give directions to any governor concerning the interception of any communication by any prisoner or class of prisoners. In our judgment, the word “any” used in this context refers to prisoners without limitation, and constructively it may apply to every one of them, since each prisoner may turn out to be a relevant representative of the group at which the condition is directed (see the Oxford English Dictionary). Given the decision has been made that all calls made by the PIN system will be recorded, the entitlement to give directions as regards any prisoner logically includes the opportunity to give directions for all prisoners.

In any event, the prisoners within a particular category or class, or held at a particular prison, can properly be treated as constituting a “class” of prisoner, such as the category A prisoners held at Her Majesty’s Prison Manchester (Strangeways). Mr Howatt sought to derive support for a more limited interpretation of the word “class” by reference to Rule 7 of the Prison Rules, which provides:

“Classification of prisoners

Prisoners shall be classified, in accordance with any directions of the Secretary of State, having regard to their age, temperament and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment as provided by rule 3.

[…]

Prisoners committed or attached for contempt of court, or for failing to do or abstain from doing anything required to be done or left undone:

shall be treated as a separate class for the purposes of this rule;

[…]”

Given Rule 7 and the scheme created by Rules 34 and 35A address wholly different situations, the suggestion that the limited groups created by Rule 7 should lead to the conclusion that the words “any” prisoner or “class” of prisoner should be interpreted restrictively is unpersuasive. Rule 7 was expressly addressing the need to place certain prisoner in identifiable and inevitably limited groups, which was, in our view, demonstrably not the objective of Rules 34 and 35A. Similarly, the reference to two nineteenth century authorities dealing with the construction of wills (Re Chaplins Trust 12 WR 147, 148 and Fell v Biddolph (1874-1875) LR 10 CP 701, 709) was of no material assistance in arriving at the proper construction of Rule 35A of the Prison Rules given the divergent contexts.

Accordingly, we consider that that the “blanket” interception and recording of the telephone calls of prisoners at the two prisons in question does not constitute a breach of RIPA, as it is not “outside the scope” of section 4(4) of the Act, and it is not ultra vires rule 35A. In the circumstances, this ground of appeal fails.

We stress that we have not considered in this judgment the extent to which it is necessary for this system to be reconsidered from time to time in light of the need for measures of this kind to be necessary and proportional.

At the close of the prosecution case, Mahmood submitted there was no case to answer on the allegation that the appellant had conspired to supply diamorphine “within the Teesside area”. This geographical limitation had been added during the prosecution case, following enquiries made of the prosecution by the learned judge. “Teesside” no longer exists following the abolition of the County Borough of Teesside in 1974, save as a loose description of the area in the north east of England consisting of the towns of Middlesbrough, Stockton-on-Tees, Thornaby, Billingham and surrounding towns and villages in the vicinity of the River Tees. Mr Howatt made this submission on two occasions, with the judge delivering rulings on 30 July 2012 and 8 August 2012. We need only consider the second ruling because it was on that latter occasion that the judge was asked to focus on whether there was evidence that Mahmood knew that the drugs were destined for supply in the Teesside area.

In the course of this appeal it has not been suggested that the following conclusions as to the general position as regards Mahmood were unjustified, based on the summary of the evidence set out above:

“The jury would be entitled to conclude on the evidence that Asad Mahmood was willingly recruited as Imran Bashir’s representative and that in that role it is inevitable that he would have sufficient knowledge of the illegal trade to appreciate that a supply of this nature was not an isolated event but part of a business. He would therefore be aware that his role was part of a wider supply chain so that in taking the role that he did he was involving himself in a wider drugs supply including with people the identity of which he may not and need not know.”

The judge went on to ask the question: “Do the facts of this case also enable the jury to be satisfied that Asad Mahmood knew that the wider business was the one that led to Middlesbrough?” In considering whether it did, it is necessary to review the key parts of the evidence:

In our judgment, this history provided a strong basis for the jury to conclude that the appellant and Majid Khan were both intimately involved in this particular instance of the supply of heroin. Given the role of Majid Khan in the supply of drugs in Middlesbrough, together with the arrangements for the taxi to undertake a round trip on 22 July 2011 in order to collect the diamorphine, there was a proper basis for the jury to draw the inference that the appellant would inevitably have been aware that the drugs were destined for Middlesbrough, thereafter to be supplied “within the Teeside area”. If Majid Khan was the customer and his group was based in Middlesbrough, this was an entirely legitimate conclusion for the jury to reach. Mr Howatt was fully entitled to advance alternative scenarios and explanations for the evidence for the jury to consider, but there was more than sufficient evidence to support the conclusion that the appellant was aware that the conspiracy at this stage involved the supply of heroin within the Teesside area.

Furthermore, the judge was entitled to draw a distinction between the appellant and Waterfield in this regard, because of the limited nature of the evidence that indicated that Waterfield was aware of the arrangements that this was a Middlesbrough-related supply. There was evidence that could have led to the conclusion that Waterfield was present at the meeting with the taxi in Oldham and he was in contact with the appellant, but there was no additional evidence to demonstrate that he was aware of the link with Middlesbrough, or that Teesside was the destination. In those circumstances, there is no substantive similarity between the cases of the appellant and Waterfield in this regard. This renewed application for leave is refused.

Mr Uttley highlights on behalf of this appellant is that it was only after the trial had started (having been delayed: it had been due to start on 18 June 2012) that on 22 June 2012 the prosecution provided a bundle of materials that related to the applications for disclosure of the telephone records. Subsequently, on 25 June 2012 the prosecution provided various witness statements by way of a notice of additional evidence. Once these various documents had been served, on 26 June 2012 Mr Uttley made submissions as to the admissibility of the intercepted telephone calls, which, as relevant to this ground, were principally directed at the interpretation of the applications, namely it was contended the prosecution had impermissibly made a series of requests that were, in part, retrospective in nature. There is a subsidiary submission that it was unfair for the court not to have ruled on the matter on 22 June 2012 (as Mr Uttley requested), on the basis of the evidence then before the court, because the defendant is entitled to a trial within a reasonable period of time and that the prosecution is under a duty to act quickly and fairly when they are on notice that admissibility is in issue.

The relevant applications are as follows:

Although it is regrettable, as the judge observed, that the material only became available extremely late in relation to the start of the trial, on the face of the documentation it is clear that authorisation was correctly given for the use of identified intercepted telephone calls. Although the PAS4 applications include a request for the calls to be intercepted and recorded, this process was happening in any event as a result of the general direction discussed above. Accordingly, the only operative part of the PAS4 application was for the retention of that material because, as Mr Kennelly (a prison intelligence officer) made clear, the calls are only held for 90 days before they “weed off” the system. This was not a retrospective request; instead, it was a request for the retention of everything identified in the application between the dates set out above. Thereafter, for both prisons PAS4E applications were submitted that provided comprehensive justification for the retained material to be used, which in due course were approved.

Therefore, proper authority had been given – on a general basis – for the interception and recording of telephone calls at the relevant prison or prisons, and the application process requesting the retention and use of the relevant material in this particular case was properly followed, and in the result there is no substance to this complaint.

As to the point on delay, the period identified is 3 or 4 days (between 22 June 2012 and 25/26 June 2012). Although delays in the service of relevant material by the prosecution of the kind that occurred in this case are strongly deprecated, it was clearly desirable for the parties and the court to have the complete picture before the judge made a decision on admissibility, and no prejudice – save for this short period of delay – has been identified. On analysis, this argument is entirely without substance and this ground of appeal fails.

As set out above, Mrs Bashir’s principal role on the evidence was to establish lines of communication between her husband and other members of the conspiracy, using her telephone number which had been approved for the purposes of the PIN system. Notwithstanding the repeated contribution she made by setting up the prohibited “conference calls” – thereby avoiding the restrictions imposed by the PIN system – the prosecution decided not to proceed against her on count 1 and instead her plea to money laundering in count 3 was assessed as an acceptable reflection of her criminality. Following this decision, an application was made to exclude the entirety of the intercepted prison telephone calls with which she had been involved and any evidence relating to her own telephone number. This application was made on the basis that “if this evidence was not good enough to justify a prosecution against Mrs Bashir then its admittance could only be prejudicial to the appellant”.

Mrs Bashir’s activities as regards the telephone calls were an important ingredient in the way an element of the conspiracy to supply heroin was organised, as it provided a vital link between her husband and certain other members of the conspiracy. Although the assistance she provided was not considered sufficient to establish her involvement in the conspiracy, there was other evidence against the other relevant defendants; indeed, against Majid Khan there was a wealth of further material that has been summarised above. These calls and the use Mrs Bashir made of her telephone, therefore, were simply one part of the case on the conspiracy, and the admissibility of this material against this appellant and the other relevant defendants was not dependent on the prosecution’s decision not to proceed against Mrs Bashir (whose knowledge of Urdu was slight and who may not understood the code which the participants in the conversations used on occasion). This renewed application for leave to appeal is refused.

On 22 April 2012 the prosecution served a 331-page schedule relating to unused material. Most of the items were marked as being not disclosable. However, as already discussed above, following the start of the trial the prosecution were regrettably still in the process of serving material relevant to the use of the intercepted telephone calls. At various stages requests for the disclosure of particular items had been met with the response that there was nothing material that fell to be disclosed (e.g. the letter sent by a CPS lawyer on 26 June 2012).

It is suggested that the surveillance logs were not always handled satisfactorily, in the sense that logs are missing for some of the dates when observations occurred. Furthermore, logs were requested for 19 occasions when the appellant had been a target during the period prior to the date of the start of the conspiracy. It is highlighted that there are discrepancies between certain log entries and the relevant parts of the officers’ statements. Although this information may have been provided in a piecemeal fashion, there is no evidence that there are any outstanding disclosable items in this category. Indeed, the court was given unqualified assurance by Mr Whittam that all the surveillance logs relevant to this trial were disclosed, and for the days of observation connected with this conspiracy with no corresponding log, the explanation is that no log was compiled. There is no basis for suggesting that undertaking by the Crown should not be relied on.

The disclosure problems relating to the intercepted telephone calls resulted in the Crown deciding not to rely on certain calls after 6 October 2011 (the wrong form had been used for a particular application). Nothing material arises from this issue, save that it serves to demonstrate the somewhat disorganised position of the Crown as regards the permissions that were necessary in order to use the evidence relating to the intercepted telephone calls.

Cross-examination of DC Findlay about the Safe Houses (Clough Close and The Potteries) resulted in additional disclosure to the appellant concerning the dates when that officer had been on duty. The prosecution ensured that the appellant was provided with disclosure of all the relevant material in the possession of the Crown when it was asserted either that Majid Khan had not been present or that there was no positive identification of the appellant. The appellant was in any event provided with the “live time” footage in the possession of the prosecution from these premises.

It is averred that the prosecution had not sought certain CCTV footage relating to the use of 11 telephone numbers that were potentially connected to the appellant, on the basis that the enquiries might compromise the investigation. The prosecution response to this suggestion is that the records in their possession for all the telephones of which they were aware have been served. Details concerning one particular number, the “Shine” business telephone number, which had been used by the appellant at about the time of the conspiracy, were not obtained. The prosecution did not try to obtain details relating to this telephone because it was not used during any of the events relevant to the conspiracy. In that sense its use was considered irrelevant to the issues in the case.

Finally, it was the prosecution case that having received the delivery of heroin carried from Bedford to Teeside on 24 August 2011, Majid Khan and other had driven north to visit Peter Clark in the Hartlepool home he shared with Victoria Stamper to have its purity tested. The telephone records relating to the use of their telephones were served as part of the evidence relied on by the prosecution. Clark and Stamper had both been arrested and interviewed and they denied the allegations that were put to them. It is accepted that the evidence of the interviews should have been disclosed in advance of the trial, although this failure was rectified during the proceedings. In the event, the defence were in possession of the relevant material.

In summary, although the disclosure process was not by any means without difficulties in the sense that some items were provided during the trial, there are no credible reasons to suppose that anything that is disclosable was withheld, or that late delivery caused any unfairness to this appellant. This ground of appeal against conviction also fails.

The judge observed that during the latter half of 2011, Majid Khan had led a group responsible for trading in heroin and to a lesser extent cannabis in the Middlesbrough area. In his judgment, this had been a well-organised and determined plan. Given the consequences of that trade, it was necessary to impose substantial sentences in recognition of the seriousness of the conspiracy. The trial had focused on specific events, the first being on 22^nd June but it was clear that the trade was well under way prior to that because when Williamson was arrested, the safe house at 188 Clough Close in Middlesbrough was already being used to store heroin for distribution. The judge was satisfied that the events observed on that day were simply an example of the trade that was on going. Additionally on that day Agiadis received a quantity of heroin from Asif Hussain for onward transmission to Williamson. This was part of the store kept in the safe house and Hussain took it from there at Majid Khan’s direction. The judge was satisfied that Majid Khan had received payment for it while standing outside his car wash premises. The trade had continued after the seizure, as demonstrated by frequent visits to the drugs store. Indeed, it was still continuing on 27^th August when Mohammed Nadine was arrested heading southbound with heroin which had been rejected because it was of insufficient strength. By this time a second safe house was being used in a flat development known as The Potteries.

The judge concluded that the majority of visits to the safe houses were connected to the heroin trade. The organisation had links to drug suppliers in the Manchester/ Oldham area and in Bedford and heroin was obtained from both those locations. The supply of heroin from Oldham was arranged with Imran Bashir who was serving a 14 year sentence in HMP Manchester imposed in October 2005 for conspiracy to supply heroin.

Strategies were adopted to frustrate investigation including the use of safe houses to store drugs, the use and abandonment of pay as you go phones; the use of coded conversations; the use of taxis for deliveries rather than cars which might have been traced back to their owners. Majid Khan operated from a car wash which the judge suspected was a front. Between 24^th June and 19^th October Majid Khan had used 10 different telephone numbers and 6 different handsets.

The filming by covert cameras at both safe houses revealed evidence of the operation’s scale.

The separate conspiracy to supply cannabis had involved only Majid Khan and Mohammed Akram and at trial was represented by a single event on 19^th October. It was a reasonable inference that this was not the first dealing given the substantial amount recovered but the judge was of the view that this amounted to no more than a sideline, the primary focus being the heroin trade. As with the heroin an unconnected car had been used to transport the cannabis.

There was clearly a hierarchy, and the judge decided the most culpable were the regional “heads”, Majid Khan in Middlesbrough, Imran Bashir in Oldham or Manchester, and Majid Hussain Bedford. Each had a leading role in directing the activity of others in the region where they operated; they had substantial influence with others; and given the quantities involved, they must have had close links with the original source. The motivation was the expectation of substantial financial reward. Majid Khan was the most culpable of the three. He was the head of the Teesside conspiracy, using Imran Bashir’s organisation as a source of supply from the Greater Manchester area, and when that route was foiled by police he turned to Majid Hussain in Bedford.

The judge applied the guidelines (as a guide), and it is accepted by the applicants that the Sentencing Council’s Definitive Guideline applies to all drug offences, including conspiracy cases. The judge observed that this was a conspiracy that was active for at least three months and it included two specific seizures but clearly other amounts went undetected. Using the guidelines as a starting point the judge was satisfied that the starting point for each of the three heads should be in the range for a leading role in a category one case (the range was 12 to 16 years, with a starting point of 14 years).

Addressing the position of Majid Khan, the judge concluded that in view of the persistence and organisation of the conspiracy and the conclusion that the safe house was used primarily in respect of the storage of heroin rather than cannabis, the appropriate starting point was 15 years. He had expanded the drugs trade to include cannabis, represented by a single event. The judge was satisfied from the purchase of food bags en route that the cannabis was to have been repackaged into smaller amounts. Although clearly a sideline, Khan’s involvement was at a level which justified that he had a leading role in the cannabis conspiracy which the judge categorised as at level 3 although at the lower end. The appropriate sentence after trial on the cannabis would have been 3 years consecutive but this was reduced to 18 months on the principle of totality. He was 29 years old, had no relevant convictions but there was no mitigation to reduce the penalty.

Given the disparity arguments that are relied on, it is necessary to consider the sentencing remarks as regards Bashir and Majid Hussain.

In the case of Imran Bashir, the judge noted he was 38 years old. His active role was less than that of Majid Khan, because he was a serving prisoner throughout. He role was vital in that he ensured Khan continued to have a supply of heroin outside the Teesside area. His direct involvement had been with the single consignment intercepted by police in July, but it was clear that he had a controlling role and was able to direct Asad Mahmood. Indeed, his conversations, recorded in prison with Majid Khan but largely in code and/or Urdu revealed that Mahmood was a trusted lieutenant and aware of the wider extent of the conspiracy. Bashir had placed his wife in peril by his acts, requiring her to facilitate the calls to Khan. The judge indicated that he did not reject out of hand the submissions that this had been a single supply of one kilogram or that he had a leading role in a category two case, but he was of the view that the matter was more serious by nature of the knowledge that came with his willing participation in Khan’s ongoing trade.

The appropriate starting point after trial for a man of good character was 12 years. Substantially aggravating Bashir’s position was that he was a serving prisoner for offences of drug trafficking and his previous convictions included the supply of drugs and this increased the starting point to 13 years 6 months. He had pleaded guilty after the jury was sworn and thus credit for the guilty plea was limited and 10% reduction would be given. The sentence would commence at expiry of the sentence being served. Bearing this in mind an overall sentence of 21 years might well have been appropriate and accordingly the sentence imposed would be one of 7 years.

Majid Hussain was 38 years old. The judge rejected his basis of plea that he had acted only as an intermediary arranging for money to be carried to Middlesbrough to enable the purchase of heroin from Teesside to Bedford. He was satisfied from the evidence presented at trial that the consignment carried by Palminder Chohan involved heroin. The latter had been misled about the true nature of his role and Hussain had used him as an unwitting courier. The heroin had been seized on 27^th August because Majid Khan had rejected it as being under strength and it was being returned to Hussain. Telephone evidence revealed him to be dealing directly with Majid Khan the head of the Teesside group. His call and the evidence of Chohan proved that he arranged the delivery. His later calls revealed that he was the person to whom Khan turned when fault was found with the delivery. He had arranged the recovery and he and Khan changed phones after speaking realising that the drugs had been seized. He had taken a leading role directing operations from Bedford and dealing with the consequences of the police interception.

As with Bashir, his role had been less than that of Majid Khan. He was involved in only a part of the Teesside trade, but his role was in a wider conspiracy to supply heroin. The judge was satisfied that he played a leading role in his area, able to persuade Chohan to act on his behalf, and concealing from him the true nature of the trip. He was in a position to receive the rejected heroin and to arrange for another driver to collect it. The starting point for sentence in his case would have been 12 years. He had previous convictions for drug matters and that increased the starting point to 13 years 6 months. The judge acknowledged the hardships caused to him and his family by incarceration but these were no greater than the inevitable loss accompanying any substantial period of incarceration. His only mitigation, albeit substantial, was his plea of guilty, entered at what the judge indicated he considered to be the earliest opportunity and he would receive full one third discount, reducing sentence to 9 years imprisonment less time.

Finally, as regards Asad Mahmood he was 40 years old. His only drug related conviction had resulted in a conditional discharge and his last significant court contact was 10 years previously (he had served a 2 year sentence of imprisonment having been convicted of deception in March 2002). His antecedent history was not, therefore, regarded as an aggravating feature. The judge took into account the mitigation he had heard and he had read the letters and references. The judge determined that his role was significant and whilst focused on a single day, it was a role in a wider conspiracy. The sentence was one of 9 years imprisonment.

For Mahmood, it is submitted the sentence of 9 years imprisonment is manifestly excessive in view of the appellant’s role which was limited to involvement in the Oldham transaction for a period of 24 to 36 hours. Furthermore, it is suggested there is unfair disparity between the appellant’s sentence and that of his Imran Bashir who was sentenced to 7 years despite his heavy involvement and was already serving a 14 year sentence.

Khan submits that the judge erred in stating that he was satisfied that the two safe houses were used solely for heroin and in concluding that there must have been numerous heroin transactions. It was an agreed that the appellant had been under surveillance for 18 months and prior to the 5 days of the conspiracy no drugs had been seen or recovered.

It is suggested there is inconsistency in the tariffs imposed for the heads of the organisation – Bashir who received 7 years and Hussain 10 years. It is argued there should have been no distinction in the sentences imposed on these three men. Further, it is highlighted Bashir and Majid Hussain had previous convictions for drug dealing.

Finally, it is argued the judge failed to take on board Court of Appeal guidance in sentencing and wrongly described this as a category 1 case.

In refusing leave to appeal their sentences, the single judge observed:

“Asad Mahmood

Your application for leave to appeal sentence was lodged 2 weeks out of time and you have provided no grounds justifying the necessary extension of time.

Further and in any event, you have no arguable grounds for appealing the sentence of 9 years. You were convicted of conspiring to supply heroin in the Teeside area. The sentencing judge presided over the trial and was very well placed to assess your role in the conspiracy and hence your level of culpability. It was his judgement that your role was a significant one, in that not only were you involved in meeting Asif Hussain and directing him to a restaurant where a transaction for 985 grams of drugs was facilitated but you were also involved through being party to the conspiracy in a wider trade of drugs.

The contention made on your behalf that there is an objectionable disparity between your sentence and that imposed on your cousin, Imran Bashir, is unsustainable. The judge reduced the sentence he would otherwise have imposed on Bashir because the sentence was one that was to be served after Bashir had completed the sentence he was serving when he joined the conspiracy charged in count 1.

It follows that the 9 years to which you were sentenced is not arguably manifestly excessive or wrong in principle.

Majid Khan

Your application for leave to appeal sentence was lodged 2 months out of time and you have provided no grounds justifying the necessary extension of time.

Further and in any event, you have no arguable grounds for contesting the sentence of 15 years imposed on count 1. You were at the heart of a widespread conspiracy between 24 June and 19 October 2011 to supply heroin into the Teeside area sourced from Qldham and Bedford. Over this period you used at least 10 different telephone numbers and 6 difference handsets. A kilo of heroin was seized by the police on 22 July 2011 and a further kilo was seized on 27 August 2011 and, as the judge found (as he was entitled to) the implementation of the conspiracy was not limited to these significant quantities.”

This was a very careful sentencing exercise, and following a long trial the judge was well placed to understand the various roles of the defendants, whether or not they had pleaded guilty or were convicted by the jury. The Definitive Guideline applies to conspiracy offences and the judge was fully entitled to conclude that for the three principal offenders this was a category 1 case in that it involved over 5 kilograms of heroin and they had played a leading role directing or organising the buying and selling on a commercial scale. As the single judge observed, Mahmood’s disparity argument based on the sentence passed on Bashir is untenable given the judge had to take into account the unrelated lengthy custodial term the latter accused is already serving. Similarly, the conclusions the judge reached on the facts relevant to Khan were entirely sustainable, and it is unarguable that the principal offenders should have been given the same sentence, regardless of the particular circumstances relating to each of them.

Following a trial, these sentences are not arguable manifestly excessive or wrong in principle, and these renewed applications for leave are refused on their merits.