Case No: 2009 4609 C5
Neutral Citation Number: [2010] EWCA Crim 2326
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT MANCHESTER
HHJ HUMPHRIES
T932101
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 13/10/2010
Before :

LORD JUSTICE HOOPER
MR JUSTICE BUTTERFIELD
and
MR JUSTICE KENNETH PARKER
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Between :

	SULTAN SHAH	Appellant	
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	THE CROWN	Respondent	

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MISS M. SIKAND appears for the Appellant.
MR. J. ASHLEY-NORMAN appears for the Respondent.

Hearing date: 13th October 2010
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Judgment
LORD JUSTICE HOOPER : 
1.	At the conclusion of the hearing yesterday we announced our decision that the appeal would be allowed and the conviction quashed. We now give our reasons.
2.	On 28 March 1994 in the Crown Court at Manchester (HHJ Humphries) the appellant was convicted of conspiracy to evade the prohibition on the import of a controlled drug of Class A (Diamorphine) and was sentenced to 10 Years’ imprisonment. His renewed application for leave to appeal conviction was dismissed on 19 February 1996.
3.	This is believed to be the last of the Pakistan Controlled Delivery cases which will need to be resolved in this Court.  The conviction was referred to this Court by the Criminal Cases Review Commission (“CCRC”) for whose very thorough report we are grateful.
4.	We do not propose to set out the background to this type of case which can be found set out in detail in earlier decisions of this Court: see R v Choudhery and Another  [2005] EWCA Crim 1788 and [2005] EWCA Crim 2598; R v Latif and Others [2007] EWCA Crim 307; and R v Vernett-Showers [2007] EWCA Crim 2598 and R v Rafiq and Hussain [2008] EWCA Crim 1518.
5.	This case is unusual in that the participating informant (“PI”) known as the Doctor, together with the Doctor’s wife and SA, whom the Doctor falsely told the Drug Liaison Officer (“DLO”) was a minder required by the suppliers, were all fully bound witnesses. On the day of the trial Lord Archer QC for the appellant was told that they could not be traced.  Mr Wigglesworth, for the prosecution, submitted to the judge that the trial should continue with the prosecution relying on unedited video and audio recordings of conversations (in Pashto and Urdu) between the Doctor and the appellant before and at the time of the handover of 10 kilos of heroin to the appellant by the Doctor. Lord Archer opposed that submission making it clear he wished to cross-examine the witnesses particularly the Doctor. The judge agreed with the prosecution. 
6.	The conversations contained a number of statements made by the appellant said by the prosecution (and accepted by the jury) to be incriminatory. It was his case, which he supported by giving evidence, that he had been set up and that he believed that he was dealing with and talking about illicit homeopathic medicine and not heroin. 
7.	The principal ground of appeal relates to the failure on the part of the prosecution to have the three witnesses available for cross-examination.  There were other grounds which we did not need to consider.
8.	The appellant was arrested on 17 March 1993.  In interview he said that he thought that he was taking delivery of a homeopathic medicine called “Dumcap” used in the treatment of asthma.
9.	On 9 August 93 an officer of HM C&E completed a reward application for the Doctor. In that application he wrote:
PERSONAL INVOLVEMENT OF CIs [confidential informants] IN OFFENCE:  The PI is central to the whole operation.  He was heavily involved from beginning to end; whilst in Pakistan he had many unprotected meetings with the supplier and then undertook the negotiations in the UK for the handover of the drugs.  His evidence will be the most crucial at the subsequent trial.
During the build up, the Doctor led us to believe that the presence in the UK of his friend –[SA] – was necessary for the success of the case, we duly facilitated a visa for [SA] who has since claimed political asylum.  I believe the CI deceived us in asking for the visa.  There is every chance he has received money from [SA] for arranging the visa.
Summary

This turned out to be a complicated and difficult controlled delivery case, made more so by the PI’s devious scheming to try and work every single angle to his own profit.  He took advantage of the Department in a number of areas and proved very difficult to control once in the UK.
10.	The Doctor had told the DLO that the supplier had required the Doctor to be accompanied to England for the handover by SA, acting in effect as a minder on behalf of the supplier.
11.	Another officer had added in handwriting “I am troubled that he may not make a good witness”.
12.	On 23 August 1993 Mr Sinnott, an investigator in this country, wrote a memorandum with the heading: “PI’s” and then the names of the Doctor, his wife and SA. He was envisaging that the PIs may not be called to give evidence. He wrote:
There is a possibility that the Prosecution case may proceed without above 3 PI statements.
13.	He also wrote that he had been advised by Miss K Whelan, the HM C&E solicitor who was managing the case, that: certain matters within the statements of the PI,  of his wife and SA “will need corroboration”. He then asked a series of questions asking for confirmation of the truth of a number of factual assertions in the Doctor’s statement and of one such assertion in the stement of SA. Mr Sinnott asked that the Karachi DLOs be asked to answer these and other enquiries. That document was received in Karachi on 9 September.
14.	Miss Whelan has not made a statement concerning the matters the subject matter of this appeal.
15.	The DLO, John Dodds, who had controlled the operation in Pakistan had by now returned to this country, leaving the handling of the PI to other DLOs.  Dodds in his statement dated 31 August 1993 wrote:
I explained to the doctor that if he was to cooperate with us he would have to give evidence when required in a British Court of Law
16.	On 9 September 1993 Mr Sinnott wrote a memorandum which included the following:
The Doctor was obstructive and unable to act in accordance with our wishes.  At times he behaved in an underhand and untrustworthy manner.
The inclusion of his wife, child and a “minder” proved to be superfluous and very costly operationally, as well as creating enormous domestic difficulties.
Sultan Shah was probably the “front man” for A N Other or a “family business” and will hopefully plead guilty once all the audio and visual tape transcriptions are available.
However, there is a possibility that the Prosecution may proceed without relying on the 3 PI statements, as it is felt that the Doctor would not make a good witness.
He should not be used in this manner again.
17.	At about this time a further reward for the Doctor of £5000 was authorised (he had received an earlier payment of £1000 before he had left the UK).  The balance was paid in April 1994 after the trial.
18.	On 29 October 1993 Miss Whelan noted that the “PI could be a problem”. 
19.	On 4 October 1993, the appellant pleaded not guilty.
20.	In October the solicitors for the appellant wrote a letter to Miss Whelan seeking further information about the Doctor. That request was forwarded to the DLOs in Karachi. 
21.	On 8 November 1993 there was a hearing in the Crown Court at Manchester at which the trial, due to last some 10 days, was fixed for 21 February 2004. It seems clear that at his stage those responsible for the prosecution anticipated that the three witnesses would be called to give evidence.  The estimate of 10 days and a note which refers to the need for interpreters as well as other things support this. 
22.	On the 11 November, three days after the trial date had been fixed, the Doctor spoke in person via an interpreter to two DLOs in Karachi, Messrs Will and Bragg, and gave information in response to the letter from the solicitors for the appellant. He does not appear to have been told the trial date.
23.	According to what the Doctor said, he was a medical doctor, he had undertaken courses in homeopathic medicine and had produced amongst other “potions” a capsule called “Dumcap” for asthma. He gave the ingredients, one of which was arsenic!
24.	That information supported the account which the appellant had given in interview.
25.	In he memorandum setting out this information, DLOs Will and Bragg wrote:
I hope that this covers the questions that have been raised.  It should be borne in mind that the CI very often moves out of Karachi and contact with him is slow and laborious, having to leave messages with several people.  This inevitably means there are sometimes quite lengthy delays in getting hold of the CI.
26.	The information obtained from the Doctor was forwarded to the appellant’s solicitor on 5 January 1994.
27.	Meanwhile on 3 January 1994 the Doctor spoke on the telephone to DLO Will. His note reads::
Call from CI Doctor.  He has to go to tribal area within the next few days.
1. any news on trial date;
2. to get [passport] as old one has expired.
He will be going ‘up country’ unless he hears from DLO within next 2 days.
28.	There is no evidence that the Doctor or the other two witnesses were told at any time that the trial date was 21 February 2004. Nor is there any evidence that the DLOs in Karachi were asked to warn the Doctor and the other two of this date. We say that mindful of the fact that the records of the work of the DLOs in Pakistan and their communications with this country have been located as well as the records of the solicitor’s department.  Missing are the records of the investigators. 
29.	On January 17 the appellant’s solicitors confirmed that the presence of the three witnesses was required at the trial. 
30.	Also in January solicitors for the appellant sought a new date for the trial and suggested 21 March 1994.  Miss Whelan sent a fax to a senior investigator asking him to check the availability of witnesses for that date and for about three weeks thereafter.  In the absence of the records of the investigators we do not know what they did.  The Karachi DLO records reveal no contact with them on this topic. 
31.	On 20 January Miss Whelan wrote a letter to the appellant’s solicitors confirming the date of 21 March and saying:
I have now ascertained that that date causes no difficulties with regard to prosecution witnesses.
32.	Taking this letter at face value Miss Whelan must have been assured by the investigators that the three witnesses with which we are concerned were available on that day to give evidence. There is no documentation or other evidence to suggest that any of the three witnesses were contacted to be told of the new date.
33.	Mr Wigglesworth had been made aware in his brief that the PI was not believed to be a very reliable witness and that the United States Drug Enforcement Agency, for whom the Doctor had previously acted as an informant in a heroin transaction into Miami, had expressed dissatisfaction at his services. 
34.	On 15 March Miss Whelan asked counsel to prepare a “batting order” of witnesses.
35.	We have an undated typed “Witness order list” probably prepared by counsel and probably prepared for a conference that took place on 16 March. We say that because there are a number of manuscript entries including entries relating to the availability of the witnesses and when they should be called. 
36.	The three witnesses do not appear on that list and there is no documentary or other evidence to explain why they were not on the list.
37.	Lord Archer, as we have said, was told by the prosecution only on the morning of the trial, Monday 21 March, that the witnesses were not available. The Court log shows that Mr Wigglesworth told the judge that the Doctor is “not here” and that he could not be traced in Pakistan. He pointed out to the judge that this would shorten the case considerably. The log also reveals that the judge was told that there was no statement from the DLO in Karachi as to why witnesses are not here today. The judge was also told that Mr Dodds was travelling to Manchester. When he did arrive that day he was not called to give evidence on this matter. He was called very briefly in the trial that afternoon but by then the judge had ruled that the case should proceed without the three witnesses and, presumably, Lord Archer did not ask questions about their non-attendance given that it would not be relevant as far as the jury was concerned. 
38.	According to Mr Wigglesworth the defence were told that the Doctor had disappeared “into the ether”.
39.	The transcript of the hearing shows that Lord Archer was explaining to the judge why he wanted to cross-examine the three witnesses and why, given their unavailability, the video and audio recordings of the recorded conversations between the appellant and the Doctor should not be admitted.  Their unavailability was, so it appears, accepted as a fact and not investigated any further. The prosecution submitted that the prosecution would be worse off without the witnesses and the judge ruled it would not be unfair to the defence to allow the transcripts into evidence and would be unfair to the prosecution not to allow it. It was this ruling which was the subject matter of the unsuccessful application for leave to appeal in 1996.  As a result of the excellent work of the CCRC we now have documents unavailable to the Court at that time.
40.	The trial continued and, before the prosecution had closed its case, the Doctor and his wife came to see DLO Bragg at 13.00 hours (8.00 am here) on Thursday 24 March 1994. They were told (so a note by DLO Bragg records) that the trial was on at the moment and that they may be required to give evidence. The Doctor and his wife gave contact telephone numbers in Karachi for both an office and residence.  The CCRC points out that these were the same numbers as had been given to DLO Will in August 1993 and one of the numbers was on the file kept by HM C&E on the Doctor.
41.	The Doctor also gave the address in Gateshead where SA was living. The CCRC notes that as long before as May 1993, the Doctor had told a DLO that SA was not planning to give evidence. 
42.	It seems clear that SA had arrived in England at the time of the handover, had been sent away by HM C&E because he was not needed and had then made an application on 8 September 1993 to remain in this country In his application he said that Customs officers had taken him to Newcastle. 
43.	More eloquent than what DO Bragg wrote is what he did not write. He did not say to the Doctor and his wife: “Thank goodness you are here.  I have been looking for you everywhere because you are supposed to be giving evidence. I shall have to contact C&E in England to tell them that I have found you”.  DLO Bragg, so it is safe to assume, had never been told that the three witnesses were required to give evidence and the date of the trial.  For all we know the Doctor and his wife could have been in Karachi when the trial started. We say that because the DLOs had Karachi numbers for the Doctor. 
44.	There is no evidence that DLO Bragg contacted HM C&E in England to say what had happened. The fact that he did not do so is powerful evidence that the DLOs in Karachi had not been told that the three witnesses were required on 21 March.
45.	If DLO Bragg had done so and if counsel had been informed then, before the close of the prosecution case, the judge would have been informed that the Doctor and his wife had been found and that the whereabouts of SA in England were known. That would have led, at the least, to an enquiry as to what had happened, an enquiry that would not, so it appears to us on the available documentation, show some of those responsible for the prosecution in a good light.
46.	We are told that it would not have been difficult to have flown the Doctor and his wife to England straight away. 
47.	We return to what the judge was told on 21 March.  To tell a judge that a witness cannot be traced carries with it the implication that efforts have been made to trace him. If no such efforts have been made, the judge is being misled. 
48.	Mr Ashley-Norman submits that the Doctor was up country at the start of the trial and therefore untraceable. If that is right how was Miss Whelan able to write that she had ascertained that the witnesses required by the defence would be available? If, as appears to be the case, no attempts were made to contact the Doctor and his wife, why should we assume that he was out of reach, particularly given what happened on 24 March, when the Doctor and his wife spoke to DLO Bragg? Why also was no attempt made to contact SA?
49.	In our view the judge was misled into believing that steps had been taken to trace the three witnesses when, so the documents available to us show, no such steps had been taken. It is not now possible to say with certainty that the misleading of the judge was deliberately engineered by some unidentified person. It is sufficient for us to say that what happened was either deliberate (the decision having been made not to bring the three witnesses to court) or was the result of gross incompetence.  Either way the appellant did not have a fair trial and his appeal succeeds.  His conviction is quashed.