Dervish & Anor, R v [2001] EWCA Crim 2789 (12th December, 2001)

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England and Wales Court of Appeal (Criminal Division) Decisions

You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dervish & Anor, R v [2001] EWCA Crim 2789 (12th December, 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/2789.html
Cite as: [2001] EWCA Crim 2789

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Dervish & Anor, R v. [2001] EWCA Crim 2789 (12th December, 2001)

		Neutral Citation Number: [2001] EWCA Crim 2789
		Case No: 200000351/Z2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOOLWICH

Royal Courts of Justice
Strand,
London, WC2A 2LL

12th December 2001

B e f o r e :

LORD JUSTICE KAY
SIR IAN KENNEDY
and
THE RECORDER OF LIVERPOOL
____________________

R
Respondent

- and -

MULAYIM (JOE) DERVISH & Anor
Appellant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Ms Marguerite Russell and Danny Friedman (appeared for the Appellant)
Mark J Gadsden and Sally Halkerston (appeared for the Crown)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

LORD JUSTICE KAY:

On 22 November 1999 in the Crown Court at Woolwich before Her Honour Judge Shirley Anwyl QC and a jury, Mulayim Dervish stood trial on two counts of conspiracy to be concerned in the supply of a Class A controlled drug. He was convicted of each count on 14 December 1999 and was sentenced to 8 years imprisonment on the first count and to 5 years imprisonment to run concurrently on count 2.

On 3 July 2000, following proceedings under the Drug Trafficking Act 1994, he was found to have benefited in the sum of Ј578, 818 and his realisable assets were assessed as Ј335,572. A Confiscation Order was made in the sum of Ј335,572 with 5 years imprisonment consecutive in default of payment.

He now appeals against conviction by leave of the single Judge. He has applied for leave to appeal against the confiscation order, but it is agreed that in the event of our refusing his appeal against conviction, that aspect of the case should be adjourned to be dealt with at a later stage.

As a result of information from an undisclosed informant, the appellant became the target of an investigation by the National Crime Squad into drug dealing activities. The operation was authorised in accordance with the Home Office Circular (HOC 97/1969) on the use of undercover officers and informants. An undercover officer, using the name Asif, was introduced to the appellant as a potential buyer of drugs. He had a number of meetings with the appellant and tape recordings of these meetings made covertly became a principal part of the prosecution case.

As a result of these conversations, on 20 April 1999, another undercover officer using the name Tom, met a man called Jason White at an Asda Supermarket in Charlton. White passed two packages of heroin containing 985 grams of heroin of 37% purity to Tom.

White stood trial with the appellant and was convicted of the second count on the indictment. He was sentenced to 42 months imprisonment.

Whilst the transaction between Tom and White was taking place the appellant was with Asif. Prior to the handover, Asif had shown the appellant that he had in his possession Ј22,000. Asif received a call after the handover from Tom and then handed the phone to the appellant who spoke to White. According to Asif, the appellant told him that he had “done it”.

Shortly after this two police officers moved in and arrested the appellant and also led him to believe that Asif had been arrested.

The defence case was that the appellant had been set up by a man, who was of Turkish origin, called Mehmet Dalgalan. Although he challenged the fact that the produced tapes accurately represented all that had occurred between him and Asif, he accepted that he had talked in terms of supplying drugs but contended that it had never in fact been his intention to supply any drugs at all.

This explanation, although somewhat implausible on its face, he explained in some detail. Mehmet Dalgalan, who was about 50, was a friend of his brother and was always borrowing money. It was Mehmet who had set up the original meeting with Asif and he, Mehmet, had been present at that meeting.

In October 1998, Mehmet introduced the appellant to one Chris Carter, who he described as tall and slim with fair hair. Carter wanted to pawn jewellery and said that he would make a profit if he lent him money. Carter was to pay the money back monthly.

A few weeks later police officers had smashed the appellant's door down looking for drugs. Later he found out that Carter had something to do with drugs. Carter had suggested that as he was having difficulty repaying the appellant's loan, the appellant should get some drugs for him to sell. He told Carter that he was not “into that kind of thing”.

Before 1 February 1999, Mehmet had asked him if he was doing “any other business”. He said that he understood this to mean drugs because he explained he had been convicted of drugs offences in 1984 and that this was common knowledge amongst those who knew him. He had told Mehmet that he was not. Mehmet had told him about Asif saying that he had more money than brains.

On the morning of 1 February, Mehmet rang and said he was bringing a couple of people, Indian friends, to meet to talk about his business. The appellant understood this to be his, i.e. the appellant’s, business namely, selling suits, plates and Viagra.

The meeting had been in a car park but he did not think that this was strange. He could see Mehmet when he turned into the car park, and he also saw that there was a BMW there with another man in it. When he got out of his car, a blonde Englishman, who was a stranger, approached and said he was Mehmet's friend and that he was running drugs from Belgium for the Indians. The appellant said that he was surprised by this. The man spoke of bringing drugs once or twice a week and said that the Indians were paying Ј20,000 to Ј22,000 per week. At the time of this conversation, they were about 100 yards from Mehmet and so he walked over towards Mehmet. He said that he asked Mehmet who the chap was and what he was talking about. He had made clear to Mehmet that he had come to talk about viagra and plates. He said that he was talking loudly in Turkish and Mehmet put his arm round his shoulder and said “I’ve told you that this guy’s got lots of money. Please talk to them and we can make some money. They will help you with your thing.”

He said that Mehmet went on for about two or three minutes. He claimed that Mehmet was begging him. He had not told him how he would make lots of money or what he expected him to do. He agreed to go along with Mehmet, who made a hand sign and an Asian man then came along. Within minutes he was talking to Asif as he put it “as if I was a drug dealer”. He described himself as confused and he said that he should have walked away but Mehmet had changed his mind, and he did not know to this day why he had not. His objective was to sell some “of the stuff I sold”, i.e. Viagra, plates and suits.

He said that after that he kept on meeting Asif. It seemed as if Mehmet was right and that Asif did not know what he was doing. He was, he said, way above the price list.

He had met up with Mehmet, who had suggested that he would make up a package of glucose and that the appellant could arrange for it to be sold to Asif as if it was heroin and they could make a lot of money that they could share. He had found Jason White to collect and deliver the parcel. He had not told him what was in the package and he was only going to pay White Ј50 for delivering it. He had never had any reason to believe that the package actually contained heroin. He said that it was all Mehmet’s fault and his only crime was greed.

It has been necessary to recount the nature of the defence in some detail to consider the first ground of appeal pursued before us and it is equally necessary to say a little about the events at the start of the trial.

It is common ground between the defence and the prosecution that there were five relevant people in the area of the first meeting between the appellant and Asif on 1 February 1999. They were the appellant, the blonde Englishman, the man described by the appellant as Mehmet Dalgalan, Asif and the other Asian. The evidence called by the prosecution about this meeting came only from Asif and from officers who were in place to observe the meeting. That evidence did nothing to identify the three other men involved apart from the appellant and Asif.

The defence wished to mount a challenge to the prosecution on the basis that if offences had been committed they were offences that had only come about by reason of entrapment either by the police directly or alternatively by a participating informant Mehmet, acting at the behest of the police. In order to mount this challenge, the defence argued that they required as much information as they could about the informant, the workings of any undercover police officers involved in the operation and the background that had led to the first meeting between the appellant and Asif.

The prosecution acknowledged that there had been an informant but declined to supply any information as to who the informant was or to provide any material relating to the meeting on 1 February other than that which formed a part of their case.

The defence contended that the informant must be either Mehmet Dalgalan or Chris Carter but the prosecution declined to confirm whether this was so or not.

The prosecution made an ex-parte application in chambers to the judge seeking a ruling that there was no obligation upon them to provide certain materials to the defence since their production would be contrary to the public interest. The defence were aware of the making of the Public Interest Immunity application and aware that it related to the issues referred to but were not made aware of the nature of the material produced to the judge.

The judge studied the material and ruled that the prosecution were not required to make this material available to the defence, save to admit that the informant was given a “reward” the nature of which would have been of “substantial value” to him.

On behalf of the appellant, the first ground of appeal pursued before this court is that this decision was wrong. It is recognised on behalf of the appellant that since neither the information placed before the judge nor any detail of what was said in their absence about the matter is available to the appellant and his legal advisers, they have difficulty in pointing out specifically why the judge was wrong to reach the conclusion that she did but it is argued that if one stands back and looks at the matter objectively, it cannot be right that they were denied access to obviously relevant material.

Before turning to look at this matter in any detail, it is perhaps desirable to say a word about the relevance of entrapment to this case. Entrapment arises where a defendant says that the reason why he committed an offence was because of the conduct either of the police officers or of others operating under their control or guidance. There is a substantial body of authority, both domestic and European, to which we were directed, particularly in counsel for the appellant’s skeleton argument, as to the circumstances in which the court will intervene to protect a person who has been entrapped into committing an offence.

However, the appellant’s case was not that he had been entrapped into committing this offence since he denied that he had been a party to any agreement to supply actual drugs. Thus he did not assert that anyone had done anything, which had persuaded him to commit these offences when but for such persuasion he would not have acted as he did.

Accordingly we are in no doubt that the introduction of the concepts of entrapment into this case provided an unnecessary complication. The proper analysis of the appellant’s contentions was that he had been tricked by Mehmet, and maybe others including Carter, into becoming involved in what turned out to be a drug deal. The trick was to persuade him that this was no more than a plan to make money out of Asif not involving actual drugs, when it was intended all along that real drugs would be involved. The appellant’s belief was that this had been done at the behest of the police and that they were or, at the very least, might have been behind the trick.

The appellant, therefore, wanted access to any material that might support his contention that he had been tricked in this way and/or that might lend weight to his belief that not merely Mehmet and possibly other non police officers were a party to the trick but also that there might be police involvement. In particular any information which might lend even the slightest support for the appellant’s version of what occurred on the car park was of crucial importance to the defence case and had to be disclosed if there was to be a fair trial no matter what competing public interest there might be in preserving the identity of informants or under cover police officers. Equally any material disclosed, or discovered as a result of disclosure, of police involvement in any improper conduct might have lead to a successful application to exclude evidence of the conversations with Asif.

It is our understanding that after these propositions were put during the course of oral argument before us, counsel on behalf of the appellant accepted that this rather than entrapment was the proper approach to the facts of this case. In any event we are satisfied that it is and consider the matter on that basis making it unnecessary for us to consider the law relating to entrapment. If it was or might have been the case that there was any material that might have assisted the defence case which was not disclosed, or which might have assisted in the defence discovering evidence which might have assisted its case, then a conviction following non-disclosure would in the circumstances quite clearly have to be viewed as unsafe and the appeal would have to succeed.

We have thought it right to examine what occurred in two ways. First, to look at the transcripts of the prosecution application before the trial judge and second to examine and consider for ourselves the material produced to the judge having heard in detail the purposes for which defence counsel contended that it might have assisted the defence.

It is quite clear from the transcripts that Judge Shirley Anwyl QC subjected the material provided to her to the closest scrutiny. She was in no sense a rubber stamp of the prosecution’s decision to withhold the material and probed by questions to satisfy herself that there could be no possible injustice if the material was not shown to the defence. We are satisfied that by acting in this way the judge provided the necessary safeguard to protect the possible interests of the appellant.

As indicated, we have examined afresh the material. It is not possible to set out the nature of that material without doing potential harm to the public interest to protect which the original ruling was made.

It is a well-established principle that the courts will not require the prosecution to produce information that might lead to the identification of an informant. All the more so is this the case where the circumstances would suggest that a person might be at significant risk of retribution if the identity became known. However, that public interest has to be balanced against the right of the defendant to a fair trial. If, therefore, there is material which might assist the defence in any way in the conduct of its defence, then the necessity for the defendant to have a fair trial outweighs the other interests in the case and the prosecution must either produce the undisclosed material or discontinue the prosecution.

As a result of counsel for the appellant’s very helpful outline of the defence case and clear explanation of what it was that the defence required so that they could employ the material either directly or for further investigation, we know precisely what it was that would have been of any assistance to the defence. We have examined the material in that light applying the rigorous test that we set out in the preceding paragraph.

Our conclusion is a very clear one, namely that the material revealed to us could not possibly have assisted the appellant’s defence nor could it have led to any further investigation which would have advanced the appellant’s defence. We are satisfied, therefore, that nothing contained within the undisclosed material could in any way have led to unfairness to the appellant in the trial nor does the fact of its being withheld in any way give rise to the slightest doubt about the safety of the convictions. We, therefore, reject this ground of appeal.

The second matter raised in the grounds relates to directions given by the judge to the jury in her summing up in respect of the appellant’s failure to mention when charged matters upon which he relied at trial.

It is first necessary to set out the factual circumstances in which the judge’s direction came to be given. Following his arrest the appellant was taken to the police station. He arrived at the police station at about 1.20pm on 20 April. That evening his solicitor was briefed by the police as to the circumstances of his arrest. At that stage, no indication was given to the solicitor that Asif was an undercover police officer. Within an hour of that briefing the appellant was interviewed by the police. The appellant, acting on the advice of his solicitor, made no comment to each of the questions.

On the following morning, the police disclosed to the appellant’s solicitor that Asif was an undercover police officer. The appellant was then interviewed but made no comment throughout. At 12.53pm that day he was charged and made no response to the charge.

At trial objection was taken to the admissibility of the interviews. The judge ruled that they were inadmissible. This was because breaches of the Codes of Practice were found to have occurred. Evidence was given by the police of an intention to charge the appellant, whatever was said in interview. Hence there was a breach of Codes 11.4 and 16.1. Further it was contended that the failure to reveal that Asif was an undercover officer at the outset had meant that the advice given by the solicitor was, through no fault of his own, not properly informed advice.

No objection was taken as to the admissibility of the charging process. However, on behalf of the appellant the judge was asked to direct the jury that no adverse inference should be drawn from his silence at this stage.

Section 34(1) of the Criminal Justice and Public Order Act 1994 provides:

“Where, in any proceedings against a person for an offence, evidence is given that the accused-

a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies.”

Subsection 34(2) permits a jury to draw such inferences from the failure to mention facts as appears proper.

Since following the exclusion of the evidence, section 34(1)(a) had no application, the judge was being invited to rule that the jury should not be permitted to draw any inference from the failure under section 34(1)(b) to mention at the time of charge facts relied on at trial.

The judge’s ruling merits substantial quotation. Having pointed to the fact that the evidence had been admitted without objection, she continued:

“The two limbs of section 34 are quite separate, the section sets out two quite different stages and sets of circumstances in which a defendant fails to reply.

The failure must be to mention any fact relied on in the person’s defence. It is intended to apply to a situation that calls out for an explanation. So far the defendants have simply put the prosecution to proof, they have not as yet given evidence. I am told, however, that Dervish’s defence put briefly is: “I did not intend to supply or conspire to supply heroin, I intended to obtain money by way of a scam.” …

I have to take account of the circumstances existing at the time of the failure to reply, including knowledge and legal advice. By the time each defendant came to be charged he had considerable knowledge of what the prosecution case against him was. Dervish by then knew that Asif was, in fact, an undercover officer and that his conversations with Asif had been recorded …

Each defendant had a solicitor acting for him. At the time of Dervish being charged his solicitor also knew the true nature of the case against his client. The circumstances are different from those in which he gave advice to make no comment during interview. It is right that each defendant was not charged as soon as there was sufficient evidence to charge him, but in the time before charge each defendant had been made aware of what he in fact faced.

Any period of unlawful detention had served to place him in a position to understand clearly what was being alleged against him and was in a situation that called out for an explanation. In my view, no injustice will flow from the jury being told that they may draw an adverse inference from the silence of either defendant and that it is a matter for them as to whether they do, in fact, draw such inference.

Given that the interview and the charges were two quite separate events, I do not accept that it would be necessary for the defendant to give an account of the interview stage in order to explain his silence after charge. To state in a sentence after charge and caution would not have incriminated either defendant in relation to these charges and would not have exposed him to questioning, which might have strengthened the prosecution case against him.”

That ruling is attacked and three submissions in respect of it have been made to this court. The first is that section 34(1) can never be deployed against a defendant in circumstances where he has elected to make no comment in his interview and the interview has been excluded. It is argued that this is because:

1) “The purpose of the sub paragraph is to cater for situations where a defendant is not interviewed (either because of the minor nature of the offence or because of a settled intention to charge him). Hence the use of the disjunctive “or” between the two sub paragraphs.

2) There can be no forensic weight attached to a double inference combining the two sub paragraphs (i.e. silence at charge adds nothing to silence at interview).

3) It cannot be inferred that parliament intended that the police should have the benefit of a “back-up” inference in the event that the interview is excluded. This would have the effect of nullifying the safeguards contained in PACE and the Codes and could potentially lead to the police breaching the safeguards in the knowledge that they would still have the benefit of section 34(1)(b) to fall back on.”

With respect to counsel’s forceful argument, we simply cannot accept that this is right. There is absolutely nothing in the subsection to justify this restricted meaning of the circumstances in which an inference can be drawn. The use of the word “or” simply indicates that in either circumstance consideration can be given to the drawing of the inference. It does not exclude the possibility of the inference being drawn at each stage. Where the jury has been invited to consider drawing the inference at interview stage, it will in most circumstances add nothing to invite the jury to consider drawing an inference at the later stage of charging but that will not always be the case. If, for example, a defendant had been questioned about events some time before at interview and had not mentioned facts upon which he relied at trial, an inference might be drawn by the jury. If, however, following the interview he had been bailed to come back to the police station a week later and thus had had a very lengthy time to think back over events, the jury might feel that a far stronger inference could be drawn if he were to be charged at that stage and still said nothing. In such circumstances we can see nothing to prevent a judge specifically leaving to the jury the possibility of an inference at each stage.

Thus we reject the submission that an inference pursuant to section 34(1)(a) and section 34(1)(b) cannot be considered in the same case. It follows that where no inference can be drawn under section 34(1)(a), subject to any issue of unfairness, there is no good reason for a judge not to leave to the jury the possibility of drawing an inference under section 34(1)(b). Thus we consider that the judge was quite right to focus on the issue whether such an inference would in all the circumstances be unfair.

If allowing an inference would in counsel’s words nullify the safeguards contained in PACE and the Codes, clearly that would be a basis upon which the judge should not permit the jury to consider drawing such an inference. Equally if there was bad faith by the police deliberately breaching the safeguards “in the knowledge that they would still have the benefit of section 34(1)(b) to fall back on”, it would be likely that the judge would not invite consideration of any adverse inference. However, these were not the circumstances found by the judge in this case after what was clearly careful consideration.

Counsel’s second submission in this regard is that before an inference can be considered in circumstances such as these, it has to be brought home to the appellant and his solicitor that there has been a material change in the circumstances between the period of interview and the moment of charge so that the appellant may appreciate that whatever stand he has taken at interview, there is a need to consider whether he should alter his position when charged.

That submission overlooks the fact that at each stage the appellant was given a distinct caution about the consequences of failure to reveal, at that stage of the proceedings, matters upon which he might rely at trial. Clearly it is open to a defendant who is given that warning when he is charged to conclude that there has been no significant change since he made his earlier decision. If he takes that course, it is open to him to explain to the jury his reasoning and the jury would only consider drawing an inference if they rejected his explanation. However, it does not seem to us that the judge is required to remove from the jury’s consideration the possibility of drawing inferences unless the explanation is one that the jury could not possibly reject.

The third submission is that to allow the possibility of an inference being drawn in these circumstances places the appellant in an impossible position. The only way in which he could fully explain why he had remained silent was to reveal to the jury the events that preceded charge including the excluded interviews. We do not see the dilemma. It was open to the appellant to draw the jury’s attention to the failings of the police, both in failing to inform his solicitor of the true facts and in failing to observe the Codes of Practice relating to the carrying out of interviews and to explain that it was this conduct that caused him to keep his defence to himself. The appellant, as the judge reminded the jury, did give a substantial part of that explanation. The judge dealt with the evidence in the following way:

“There is evidence before you on the basis of which the defendants advocate in each case invites you not to hold it against him that he failed to mention this fact when he had the opportunity to do so. That evidence, in the case of Dervish, was that he and his solicitor had earlier been given misleading information by the police, he did not trust the police and was not prepared to say anything to them and, he was in a state of shock.”

Thus it was only the no comment interviews to which no reference was made. That was a decision made by the appellant and his legal advisors. If they had chosen to reveal the police failings, we fail to see how that could have had any prejudicial effect on the appellant. Reference to the fact of these improperly held interviews would not in any way have permitted the Crown to introduce the details of the questions put to him to which he made no comment.

Having considered the submission in this regard, we find ourselves entirely in agreement with the approach of the trial judge. She was right firstly to conclude that unfairness aside there was no basis for not letting the jury consider whether to draw an adverse inference. She reviewed thoroughly all the considerations that might have pointed to unfairness and concluded there was none. If the appellant had been dealt with correctly by the police at the police station, his solicitor would have been properly briefed as to the circumstances, the appellant would not have been interviewed at all but he would have been offered the opportunity to say anything he wished under caution with a warning that failure to reveal matters upon which he later relied might be held against him. The effect of the judge’s various rulings was to put him back in the position he would have been in but for the police failings. It still remained open to the appellant to explain to the jury why he had acted as he did. As the judge observed, the appellant’s essential defence could have been put in a single sentence following charge and the police would have been prevented from questioning him about it. That course, the appellant who had been warned of the consequences, chose not to take. We think the judge was right in these circumstances to leave it to the jury to decide whether or not it was fair in all the circumstances to draw any inference.

No complaint is, or could be, made about the terms of the judge’s direction to the jury consequent upon her ruling. Accordingly we reject the second ground of appeal.

In order to reach our conclusions in this case we have had of necessity to study this matter with care and in significant detail. Having performed that exercise, no member of the court has the slightest doubt about these verdicts being safe and accordingly the appeal is dismissed.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dervish & Anor, R v [2001] EWCA Crim 2789 (12th December, 2001) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2001/2789.html Cite as: [2001] EWCA Crim 2789

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th December 2001

	R	Respondent
	- and -
	MULAYIM (JOE) DERVISH & Anor	Appellant