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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Early & Ors, R v [2002] EWCA Crim 1904 (26 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/1904.html Cite as: [2003] 1 Cr App Rep 19, [2002] EWCA Crim 1904, [2003] 1 Cr App R 19

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		Neutral Citation Number: [2002] EWCA Crim 1904
		Case No:200100174 S3 200103761 S3 200200397 S3 200202543 S3 200105358 X2 200105359 X2 200201484 X2 200103094 Y4

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Date:26th July 2002

B e f o r e :

The Vice President of the Court of Appeal Criminal Division
(LORD JUSTICE ROSE)
MR JUSTICE COLMAN
and
MR JUSTICE RODERICK EVANS
____________________

Between:


R V John EARLY Narip Singh BAJWA Royston Gary VICKERS Richard Alexander DOWELL Rahul PATEL Nilam PATEL Colin PEARCY Madhusudan Maganbhai PATEL

____________________

Mr I C Bridge & Mr D A Stein appeared for EARLY
Mr PL Guest & Mr A M Jenkins appeared for BAJWA
Mr B Reece appeared for VICKERS
Mr A Lakha & Miss S Cohen appeared for DOWELL
Mr NJM Lucas & Mr M Rainsford appeared for the Crown

Mr J Carter-Manning QC & Miss P Mcatasney appeared for R PATEL & N PATEL
Mr D Batcup appeared for PEARCY
Mr J Gompertz QC & MR Ashley-Norman appeared for the Crown

Mr A Arlidge QC & Mr K Galvin appeared for M M PATEL
Mr A Glass QC & Mr TVM Kark appeared for the Crown

____________________

Hearing dates: 9th, 10th, 11th & 12th July 2002

HTML VERSION OF JUDGMENT : APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
____________________

Crown Copyright ©

The Vice President:

Introduction

1. These 8 appellants, with leave of the single judge or this court, appeal against their convictions. They appeared, at different times, at three different Crown Courts, before three different Crown Court Judges. They all pleaded guilty to an offence or offences involving fraud on the revenue by virtue of the improper diversion to the UK market, from a bonded warehouse, London City Bond (LCB), of large quantities of duty suspended alcohol, ostensibly intended for other countries in the European Community. For over two years, before Customs & Excise (C&E) put an end to matters in April 1998, some 30 or 40 separate scams were being conducted through LCB. These resulted in a loss to the revenue of £300 million. The consequential impact of unlawfully cheap alcohol on the domestic market was great. Tension developed in C & E between those whose primary concern was lost revenue and those whose primary concern was investigating and obtaining evidence of fraud. Codenames were given to the separate investigations. Operations Fallover, Fusion and Fajita led to these three groups of defendants.
2. Their appeals have been heard together because, common to all of them, are the contentions that, first, they pleaded guilty on the false assumption that full and proper disclosure had been made to them by the prosecution and, secondly, non-disclosure of the true roles of the brothers Alfred and Edward Allington at LCB, plus, in the cases of M M Patel and Nilam Patel, lying evidence by prosecution witnesses to judges, on the voir dire, precluded them from making an effective application to stay proceedings as an abuse of process.

History of the litigation and the relevant facts

3. The first appellant dealt with was M M Patel (Operation Fallover). At Kingston Crown Court on 18th February 1999, after a hearing over many days in which HH Judge Hucker, having held PII hearings, rejected submissions that to proceed with his trial would amount to an abuse of process, the appellant changed his plea to guilty to two of the four counts in the indictment (counts 1 and 3) which alleged conspiracy to cheat the public revenue. The other two counts were ordered to lie on the file on the usual terms. On 19th March 1999, he was sentenced to 30 months imprisonment on each count concurrently and disqualified for 5 years under s2 of the Company Directors Disqualification Act 1986. On 27th April 2000, a confiscation order was made against him in the sum of £600,000, with 4 years imprisonment, consecutively, in default of payment within 6 months. Three co-accused, S Bhandal, Khan and P Patel, were all sentenced to 30 months imprisonment, each having changed his plea to guilty to one similar count in the indictment. Following the decision of this court in Villiers CACD transcript 9th November 2001, the single judge granted M M Patel leave to appeal against conviction on grounds relating to that case and the necessary extension of time was granted.
4. The case against M M Patel was that he and Bhandal had provided a safe haven and onward sale for goods obtained from LCB with falsified documents, particularly Accompanying Administrative Documents (AADs), part of which was returned to , LCB bearing a forged stamp purporting to show the goods had reached a foreign destination. The counts related to such activity through a company called Richview Ventures Ltd in count 1 and Culvane Ltd in count 3. M M Patel was the sole director of Multi-Rush. He ran a cash and carry business and had two warehouses in Southeast London as well as a number of retail outlets. Bhandal had a cash and carry business in Hanwell. On 15th December 1996, a lorry was seen by customs officers to go from Bhandal’s premises to Multi-Rush and back again. On 19th December, following a raid on all the cash and carry premises, duty-suspended goods diverted from LCB were found at each. At Multi-Rush, goods identified as having come via Richview and Culvane were found. In interview, M M Patel claimed that his stock came from Avtar Singh and had been bought in good faith. He produced invoices to support this which the crown alleged were fraudulent.
5. The defence submitted that the indictment should be stayed as an abuse of process because removal of the goods from LCB and the evasion of duty had been provoked, encouraged or facilitated by C & E officers working for the National Intelligence Service (NIS) in collusion with the manager of LCB, Alfred Allington. It was said that the offences would not have occurred if that encouragement and facilitation had not taken place. Evidence was heard on the voir dire from Lesley Blackburn, who was in charge of a team of customs officers, Mr Snuggs the manager of the NIS Team, Alfred Allington and others. It was submitted by the defence that there could be no fair trial, or it would be unfair to try the defendant, because his possession of duty- suspended goods called for an explanation which he could not, in the absence of further disclosure, properly provide. NIS had encouraged LCB to facilitate the fraud by giving Allington a nod and a wink, according him special status. It was reasonable to conclude NIS had failed to disclose all relevant material. C & E involvement went beyond passive investigation. At the PII hearings, it was said that Edward Allington was a registered informant, but Alfred Allington was merely a trade source who did not become a participating informant until March 1998. The judge ruled against the defence submission. He found that Alfred Allington’s co-operation was not given because he had been positively encouraged to set up despatches to “dodgy” destinations: he simply passed on information of a trade nature which he was contractually bound to do. The conduct of customs was a thousand miles from being unworthy, shameful or an affront to public conscience. There was no sufficient direct link between LCB and M M Patel and no evidence that he was tricked by C & E or anyone at LCB to commit fraud. There was no evidence that Allington was induced or pressured into taking part in unlawful activity. Thereafter, as we have said, the appellant changed his plea. Subsequently,” the defence learnt that Allington had made a statement to the effect that he had not told the truth on the voir dire. His portrayal as a trade source of information was not a true reflection of the situation. He had dealt with Bernie Small of NIS, who had repeatedly removed unopened documents from LCB. Allington had no idea what happened to them. He referred to some of the benefits he had received. He had told lies approved by C & E. At a meeting prior to M M Patel’s trial he was told what line the defence would take to show that he was an informer, but he was to say that he was a trade source. In effect he was to perjure himself. C & E knowingly allowed the duty fraud to take place because they wanted to catch people. He was encouraged by NIS to open accounts for companies which he knew were taking part in the scam. He was told to keep his relationship with Small and his department secret. It is admitted for the purposes of this appeal that, by 13th August 1996, Alfred Allington was a participating informant with an implied indemnity against liability for excise duty on goods diverted from LCB. He was not registered as an informant. He had no controller and not all his dealings with Small were recorded. It was incorrect to describe him to the trial judge as a trade source. He lied to the trial judge in saying that he could not know if there had been a fraud if a stamped AAD was returned and that he had had no discussion with Small about an indemnity. It is further admitted that Small was a frequent visitor to LCB and often took away returned AADs. C & E actively encouraged LCB to allow goods to leave without duty being paid and knew the Allingtons were facilitating that fraud. In 1996 LCB informed C & E, as a matter of course, when a new account was opened.
6. The appellants Rahul Patel, (Rahul) Nilam Patel (Nilam) and Pearcy (Operation Fusion) appeared at Southwark Crown Court before HH Judge Mota Singh. On 41 May 1999 Rahul and Pearcy pleaded guilty, on re-arraignment at the start of their trial, to conspiracy to cheat the public revenue. After an adverse ruling on submission by the defence based on abuse of process, Nilam pleaded guilty on 22nd July 1999. 0 21”1 December 1999 Rahul Patel was sentenced to 5 years imprisonment, subsequently reduced by the Court of Appeal Criminal Division to 4 years. Nilam Patel was place on probation for 12 months and Pearcy was sentenced to 2 years imprisonment and confiscation orders made. Co-accused called Dhillon and Sihota who pleaded guil1 were sentenced to 3 years imprisonment and a confiscation order was made. Other c( accused called Basram, Montague, and Bothwell were each ordered to carry 01 community service. Five other defendants were each found not guilty of conspiracy 1 cheat the public revenue on the judge’s direction at the close of the prosecution case Alfred Allington gave evidence for the prosecution which contained, as the Court I Appeal Criminal Division subsequently found in Villiers. paragraph 26, four false answers, as customs personnel must have known: namely, that he was not a C & informant, he was not aware goods leaving LCB were being fraudulently diverted, , did not allow the frauds to run with C & E connivance and was not party to any deals with C & E and he did not know he would not be called on to pay the lost duty. Their applications for leave to appeal against conviction having been referred to the F Court by the Registrar, this court granted Rahul, Nilam and Pearcy leave to appeal the ground that, before they entered their pleas, the Crown had failed to make mater disclosure of matters relating to LCB. As in the case of M M Patel, duty-suspend goods, ostensibly destined for France or Spain, left LCB with false AADs and WI dispersed in the United Kingdom. The transactions were carried out through front companies purchased for the purpose. Rahul and Nilam, who were husband and ~ and took instructions from a man called Bhandari, were concerned with purchasing, finance, storage and distribution of the alcohol. The haulier they u: principally was Reynolds Transport Ltd of which Pearcy was a director. On interview after his arrest, Rahul denied knowing Pearcy and Reynolds Transport and said he , unemployed, despite considerable evidence about his cash and lavish spending. entered a written basis of plea admitting only onward distribution of the goods, their purchase, and involvement in no more than half a million pounds of duty evasion the Crown did not accept either of these points. Nilam pleaded guilty on the basis 1 she had merely assisted her husband in a subordinate role under his guidance instructions: the Crown accepted this.
7. The remaining four appellants (Operation Fajita) appeared before Judge Maher at Wood Green Crown Court. On 1st March 1999, Bajwa pleaded guilty to four counts of being knowingly concerned in the fraudulent evasion of duty payable on goods and, subsequently, to a further count. Six other counts were ordered to lie on the file. On 11th May 1999, Vickers pleaded guilty, on re-arraignment during his trial, to two counts of being knowingly concerned in fraudulently evading duty chargeable on goods. On 24th May 1999, Early pleaded guilty, on re-arraignment, to a single count of conspiracy to cheat. On 27th May 1999, Dowell pleaded guilty on re-arraignment during trial to a single count of conspiracy to cheat. On 4th June, 1999 Vickers was sentenced to 18 months imprisonment, consecutively to a sentence of 10 year: imprisonment being served for an unrelated offence. On 30th July 1999, Bajwa was sentenced to 2 years imprisonment, concurrently on each count, but consecutively to : term of 6 years imprisonment for another conspiracy to cheat in relation to a bonded warehouse in Ipswich. On 22nd September 2000, Early was sentenced to 3 years imprisonment, consecutively to other unrelated terms of imprisonment and Dowell was ordered to undertake 100 hours of community service. Bajwa and Early appeal again! conviction by leave of the single judge, following the court’s decision in Villiers. Applications for leave to appeal by Vickers and Dowell having been referred to the Full Court, this court granted leave. Renewed applications for leave to appeal again: sentence by Bajwa and Vickers were refused by the Full Court on 12th January 200 There were other co-accused, three of whom were acquitted on the direction of the trial judge.
8. The loss to the exchequer from the frauds with which these four appellants we involved exceeded £35 million. Bajwa was a principal organiser, a step away from t] centre. Early and Vickers organised transport. Dowell was a lorry driver. As with t] other conspiracies, goods accompanied--by false AADs were removed from LCB: There were many other documents, including instruction faxes from Bajwa and consignment notes in relation to the movement of goods. Four bogus companies we set up -Amco Global, Buckhurst M & M, Forthright Trading and ill Trading. Each company bought large quantities of duty-suspended spirits from LCB, ostensibly to go to a bond in Spain. The goods were diverted to the home market. There was a go deal of observation evidence by customs officers in relation to the various loads Primary disclosure under s3 of the Criminal Procedure and Investigations Act 19 was given on 6th October 1998. On 28th February 2000,.Judge Maher ordered further disclosure in relation to Alfred Allington’s role. The following day, the Crown offered no evidence against the other defendants. Judge Maher refused to allow Early a Dowell to change their pleas: no reasons for that decision have ever been given. 1 Court of Appeal in y~ knew of Judge Maher’s ruling ordering further disclosure and dealt with it at paragraph 28 of the judgment.
9. In Villiers this court held, in paragraphs 13 and 14, that Edward Allington had bee participating informant whose status was not revealed to the judge at the trial Villas and others in 1999 and 2000 as it should have been; that Alfred Allington, not registered and had no controller for his handler Small; and no proper records ~ kept of his dealings with customers or C & E: these breaches of clear guidelines should have been disclosed to the judge, to enable him to reach an informed conclusion! as to whether Alfred Allington was a participating informant.. The court concluded that C & E actively encouraged personnel at LCB to allow goods to leave warehouse without duty being paid and that the Allington brothers were facilitating the fraud. Those findings have been treated as binding by all the parties to the present appeals. Indeed a different constitution of this court, in which Tuckey LJ presided, so directed on 15th January 2002. As will emerge, there was less disclosed material before the CACD in Villiers than before us. For example, there was disclosure of two ring binders of further documents about 2 weeks before the hearing of these appeals, another ring binder during the week before and yet another on the day the appeals opened. On the fourth and last day of the hearing of this appeal, a further bundle of documents was disclosed by Mr Glass QC, for the prosecution in relation to M M Patel.

The court’s approach

10. Judges can only make decisions and counsel can only act and advise on the basis of the information with which they are provided. The integrity of our system of criminal trial depends on judges being able to rely on what they are told by counsel and on counsel being able to rely on what they are told by each other. This is particularly crucial in relation to disclosure and Pll hearings. Accordingly, Mr Gompertz QC, rightly, accepted that when defence counsel advised Rahul, Nilam Patel and Pearcy as to plea, they were entitled to assume that full and proper disclosure had already been made. He also rightly accepted that a defendant who pleaded guilty at an early stage should not, if adequate disclosure had not by then been made, be in a worse position than a defendant who, as the consequence of an argument to stay proceedings as an abuse, benefited from further orders for disclosure culminating in the abandonment of proceedings against him. Furthermore, in our judgment, if, in the course of a PII hearing or an abuse argument, whether on the voir dire or otherwise, prosecution witnesses lie in evidence to the judge, it is to be expected that, if the judge knows of this, or this court subsequently learns of it, an extremely serious view will be taken. It is likely that the prosecution case will be regarded as tainted beyond redemption, however strong the evidence against the defendant may otherwise be. Such an approach is consistent with the view expressed by this court, in Edwards [1996] 2 CAR 345 @ 350F where, in a different context, Beldam LJ referred to the suspicion of perjury starting to infect the evidence and permeate other similar cases in which the witnesses are involved. We approach the question of safety of these convictions, following pleas of guilty, in accordance with Mullen [1999] 2 Cr App R 143 as approved in Togher & others [2001] 1 Cr App R 457, namely a conviction is generally unsafe if a defendant has been denied a fair trial. We bear in mind, in particular, three observations by Lord Woolf CJ in Togher. First, at paragraph 30, “if it would be right to stop a prosecution on the basis that it was an abuse of process, this court would be most unlikely to conclude that, if there was a conviction despite this fact, the conviction should not be set aside”. Secondly, at paragraph 33, “The circumstances where it can be said that the proceedings constitute an abuse of process are closely confined. It has to be a situation where it would be inconsistent with the due administration of justice to allow the pleas of guilty to stand”. Thirdly, at paragraph 59, freely entered pleas of guilty will not be interfered with by this court unless the prosecution’s misconduct is of a category which justifies this. A plea of guilty is binding unless the defendant was ignorant of evidence going to innocence or guilt. Ignorance of material which goes merely to credibility of a prosecution witness does not justify reopening a plea of guilty.
11. Against this background, we turn to the submissions made and our conclusions in relation to each of these appeals.

M M Patel

12. For M M Patel, Mr Arlidge QC submitted that the prosecution’s failure to disclose Alfred Allington’s role as a participating informant, the failure to register him, the failure to provide him with a controller and the failure to maintain proper records of meetings between Alfred Allington and Small, were all in clear breach of the Home Office Guidelines in relation to informants. As those breaches were not disclosed to the trial judge the abuse hearing before Judge Hucker was necessarily unfair. He exercised his discretion on the basis of false evidence, so it was necessarily flawed. Mr Arlidge relied on Mullen. In the alternative, he submitted that the appellant was denied the opportunity to argue the abuse hearing fully and therefore the proceedings were unfair. Furthermore, Mr Arlidge pointed out that, at the PII hearing on 27^th January 1999, the judge was told by counsel for the Crown (transcript 14B) that the) were seeking to conceal that Alfred Allington had acted as a confidential informant in other cases without, of course, disclosing to the judge that he was a participating informant in this case. At a further PII hearing on 5th February 1999, Mr Payne ofNI5 (transcript 5C) confirmed leading counsel’s question that Alfred Allington was a trade source and drew a distinction between his status and that of Edward Allington, who was a registered confidential informant. Evidence was also given that this state 0 affairs had prevailed from early 1998: whereas, as is now admitted, both brothers were facilitating the fraud, as participating informants, from August 1996; Snuggs, on 30^th October 1996, was writing a letter described by the Court of Appeal in Villiers ‘‘as masterpiece of obfuscation”; and Mr Pratt of “NIS was writing an undated memorandum to a senior officer referring to Alfred Allington and inquiring “whether this trader should still be encouraged to take on suspect customers and despatch good under bond. to dodgy destinations”. This memorandum having been seen by Judge Hucker on the February 1999, he expressed concern, at a further PII hearing, but was again assured (transcript 11-13) that, from the beginning of 1998, Alfred Allington ha been a trade source and was still so registered. On that occasion, Snuggs gave evidence (transcript 44-45) that there was no collusion or conspiracy between NIS and LCB to create, facilitate, or in any way improperly foster business which would ill otherwise have occurred. That was in accordance .with the memorandum written t Snuggs on 9th January 1999 to Mrs Dunn, C & E solicitor in charge of Fallover Fusion and Fajita. At paragraph 19 of Villiers CACD concluded that use of the phrase “trade source” was “distinctly misleading” and in paragraph 22 the court conclude that customs actively encouraged senior personnel at LCB to leave the warehouse without duty being paid and knew that the Arlington brothers were facilitating the fraud. Small also gave evidence on the PII hearing on 8th February denying (transcript 53F) any encouragement to LCB to trade or not trade with any particular company Mrs Blackburn, the senior C & E person with control duties in relation to LCB, al gave evidence on the same date. The judge ruled that it was not necessary to disclose to the defence Pratt’s memorandum to which we have referred. On 11th February however, Mr Glass QC accepted that it should be disclosed. On 12th February (transcript 10) the judge expressed the view that there was no evidence to support the view of Mr Sallon QC, then appearing for M M Patel, that the Allingtons WI involved in “some deep and devious plot with the customs to finger his and other defendants”: “they have all thoroughly got the wrong end of the stick”. On 15th February at a PII hearing, Alfred Allington gave evidence that he had been doing no more than what he felt was required as an honest trader.
13. In his abuse submissions on 17th February, Mr Sallon QC submitted that there was overwhelming evidence that Alfred Allington was a participating informant and that, throughout 1996, NIS knowingly permitted LCB to continue trading with suspect customers. He also submitted that the defendant was precluded from discharging the burden of proving the provenance of the goods. However in his ruling (transcript 68H) the judge concluded that Alfred Allington’s co-operation with C & E and NIS was not the result of positive encouragement to set up despatches to dodgy destinations. “He was simply left to continue to pass information of a trade nature to customs that he was in effect contractually bound to do as part of his bonded warehouse licence -no more no less”.
14. Mr Arlidge submitted that the disclosure failures were particularly serious because, on the facts as now known, both the Allington brothers were, at the material time, participating informants, not just generally but in relation to this case, as the name of Richview was given to NIS by Alfred Allington (his evidence on 15th February 1998 at 28E). The trial judge was positively misled into accepting that Alfred’s role was merely that of a trade source. The defence was seriously handicapped by the absence of information now known to this court. Mr Arlidge accepted that the excise fraud involving this appellant was not at a very high level of criminality compared with the serious terrorist offences in Mullen. But the non-disclosure by C and E and the cover- up by dishonest evidence to conceal Alfred Allington’s true status was so unworthy or shameful as to amount to an affront to public justice. He relied on a passage in Mullen at 157E; “the need to encourage voluntary disclosure before trial of material and information in the hands of the prosecution relevant to the defence is a further matter of public policy to which it is also necessary to attach great weight. Omission to make such disclosure clearly is a matter to be taken into account on the exercise of this court’s discretion following a conviction”.
15. For the Crown, Mr Glass QC stressed that it was a very short investigation which led to the arrest of this appellant and the real issue in the case was the state of the ( appellant’s mind when receiving duty-suspended goods; if he knew that they were (duty-suspended the jury could conclude that he was playing the part of receiver in the conspiracy. It was no part of the case for the prosecution or the appellant that he had any connection with LCB: this differentiated his case from the defendants in Villiers who all had direct dealings with LCB. The prosecution did not accept that the Allingtons were participating informants in this appellant’s case. The appellant was: very experienced businessman who knew what the going price must have been for the, alcohol which he bought. He knew who he was dealing with and the price at which h could make a profit, taking into account whether duty had been paid. It would, therefore be glaringly obvious to him that he was paying too Iowa price. Mr Glass accepted that the judge was misled by lies that Alfred Allington was merely a trade source. But, he submitted, if the judge had known the truth he still would not hay stayed the proceedings or concluded that a fair trial was not possible. All that the judge was effectively deprived of was “the icing on the cake” namely that Allington had an indemnity and knew what was happening.. There could have been a fair trial because all the issues had been canvassed and Alfred Allington’s credit could have been put under the spotlight in cross-examination. The point that there were many duty-suspended goods on the market and all other points would have been available to the defence. If there had been full disclosure to the judge it would have been fair to try the appellant. All that the Allingtons had done was give dishonest people the opportunity to open accounts. Judge Hucker could not have come to any different conclusion than he did. Mr Glass distinguished Mullen ex parte Bennett. 98 Cr App R 114 and Schlesinger and Dunk CACD transcript 28th July 1994 on the basis that the first two cases dealt with getting a defendant to court in an unlawful manner in breach of international law and human rights and §chlesin2:ex dealt with preventing a fair trial by putting defence witnesses in baulk. He relied on paragraph 59 in Toher in that the defendant, in pleading guilty, had not been deprived of material directly) bearing on his guilt or innocence. He had pleaded guilty to two counts because h( realised he was in danger of conviction on all four. Alfred Allington would have been called by the prosecution exclusively to produce documents. The appellant’s pleas should stand.
16. In his reply, Mr Arlidge submitted that the central question is not what the judge would have decided if he knew everything but whether the appellant had been deprive, of the opportunity to argue abuse properly, with full knowledge at his disposal. On the material now available, it is arguable that Alfred Allington was a participating informant in relation to Fallover. It is not for this court to decide whether an agent provocateur argument would have succeeded before the judge. If a false market is created, this may tempt honest traders and others down the line who may not have committed offences had they not been enticed. In interview, the appellant had said 1 C & E if you want to do business honestly you can’t do the business today”. The appellant had pleaded guilty in ignorance of the fact that lies had been told to the judge.

Conclusions re M M Patel

17. In our judgment the material now before this court shows (i ) lies were told to Judge Hucker by prosecution witnesses in the course of PI I hearings and on the voir dire; ( those lies were told by reason of a deliberate decision on the part of C & E to conceal from the judge the true status of Alfred Allington and the real nature of the relationship between C & E and LCB; (iii) the judge, in giving his rulings as to disclosure and to whether there should be a stay for abuse, was materially mislead by those lies reaching conclusions, now known to be wrong, that Alfred Allington was merely, acting as a trade source and that there was no collusion between LCB and C & E facilitate the frauds, including that in which this appellant was said to be involved; ( had the judge known the true position it may be that his decision in refusing a s would have been different; (v) the appellant pleaded guilty only after the abuse submission had failed.
18. It is a matter of crucial importance to the administration of justice that prosecu1 authorities make full relevant disclosure prior to trial and that prosecuting authorities should not be encouraged to make inadequate disclosure with a view to defendants pleading guilty. We agree with the court in Villiers (paragraph 40) that it is not for a judge to piece together stray pieces of information to decide whether someone is a participating informant. When inadequate disclosure is sought to be supported by dishonest prosecution evidence to a trial judge, this court is unlikely to be slow to set aside pleas of guilty following such events, however strong the prosecution case might appear to be. Lord Woolf CJ in paragraph 59 in Togher enunciated general principles with which we respectfully agree: he was not dealing with, and it seems unlikely that he had in mind, a case in which non-disclosure, accompanied by perjury, preceded a guilty plea.
19. Accordingly, M M Patel’s appeal is allowed. His conviction, not-withstanding his plea of guilty, is unsafe and is quashed, as is the confiscation order made against him. In the ordinary way we would have ordered a re-trial so that a trial judge, on the basis of honest evidence, could have had the opportunity of deciding about disclosure and about whether or not a stay should be granted. However, as the appellant has already served his sentence and it is nearly 6 years since the offence is alleged to have taken place, we make no such order, as it would not be in the interests of justice to do so.

Rahul. Nilam and Pearcy

20. In the Fusion appeal, Mr Carter-Manning QC, on behalf of Rahul and Nilam, relies on the admissions made in M M Patel’s appeal which we have already identified in relation to the roles of the Allington brothers, the relationship between LCB and C & E and the activities of Small. In addition, admissions are made as to the findings of fact by the Court of Appeal in Villiers and that there was a failure prior, during and beyond the end of the trial, to disclose to the defence the true status of the Allington brothers. It is also admitted that much of the further disclosure during the voir dire in relation to these appellants should have been disclosed prior to the trial. It is also admitted that Alfred Allington’s evidence, served before the trial, producing AADs gave a misleading impression, which, it is said, is particularly important in relation to Rahul. It is further admitted that the AADs purporting to have been stamped in Spain had “Spain” rather than “Espana” stamped on them. It is further admitted that the role of the Allington brothers as participating informants should have been made known to the judge prior to or during the course of the voir dire and that evidence of the relationship between NIS and LCB, particularly from Small, was “at the very least incomplete or misleading”. There are further admissions that Rahul pleaded guilty, on a basis not accepted by the prosecution but set out in writing, and that a Newton hearing, which all counsel and the court had anticipated, never took place. The basis of plea included that Rahul was not involved at any stage with the purchase of goods from bonded warehouses. It is admitted that Nilam pleaded guilty on the basis that she assisted her husband in the operation of the fraud playing an active but subordinate role. Finally, it is admitted that, in the voir dire, allegations of failure to disclose, entrapment as to the informant-status of the Allington brothers and as to direct involvement of NIS with LCB were raised.
21. Mr Carter-Manning submitted that, in the light of these matters, the exercise of discretion by the judge in refusing a stay was fatally flawed, particularly in the light of the false evidence given to him by Alfred Allington as identified in paragraph 26 of the CACD judgment in ViIliers. He submitted that, although Ex parte Bennett and MuIlen dealt with defects prior to trial and the present case is concerned with the trial process itself, it is just as fundamental for the courts to prevent dishonest evidence at trial as grossly improper prosecution conduct before trial. He referred to ex parte Bennett No 2 [1995] 1 Cr App R 147 and the observation of Lord Justice Mann at 150B that “a propriety of procedure in regard to the liberty of any who are brought within our jurisdiction is transcendent”. Although, in a statement made on 30th October 2000 and in evidence to which we have already referred, Small claimed never to have actively encouraged Alfred Allington to take on suspect accounts, the statement of Janice Wanstall dated 11th October 2000, to which CACD referred in Villiers at paragraph 20, referred to a meeting in September 1996 at which Small said he had actively encouraged Alfred Allington to take on suspect accounts. Furthermore, the findings in ViIliers that “customs personnel knew that one or other of the Allington brothers would themselves allow the fraud to occur by signing AADs for goods purportedly going to destinations which they knew to be false” (paragraph 17) and “customs did indeed actively encourage senior personnel at LCB to allow goods to leave the warehouse without duty being paid and... customs knew that the Allington brothers were facilitating that fraud” (paragraph 22) must, had he known about them, have made a difference to Judge Mota Singh’s ruling that no stay should be ordered. Mr Carter-Manning pointed out that nobody was convicted at Southwark Crown Court, because the judge ruled that there was no case to answer, as continuity in relation to the goods had not been established because of the inadequacy of the seals on the lorries.
22. There was no suggestion that Mr Gompertz QC had misled the defence. But defence counsel’s advice as to plea was on the basis that what prosecution counsel said was correct, whereas Rahul’ s plea was clearly not based on true information. The memorandum of 2nd February 1999 from Maureen Dunn, the solicitor responsible for the cases against all these appellants, to her senior John Flood (to which we refer further at paragraph 38 below) demonstrated that it was clearly known to C & E lawyers in February 1999 that Alfred Allington was not a trade source. Yet full relevant disclosure in relation to this had not been made by the time Rahul pleaded guilty three months later, or during the PII hearings now disclosed, or during the abuse of process submissions on the voir dire, or at any time before Nilam pleaded guilty on 22nd July 1999. On the contrary, during the PII hearings Alfred Allington was described by prosecution counsel as “virtually a full blown informer” in the context of seeking to continue having him described to the defence as a trade source. Further, on 24th June 1999, on the voir dire, Small gave evidence to Judge Mota Singh that Alfred Allington was a trade source. It is to be noted that, as Mr Batcup for Pearcy was to point out, on 26th July 1996 Small had written to Snuggs referring to LCB as “a valuable source of intelligence” and, referring to the relationship having begun several years ago, sought “that consideration be given to protecting this relationship by indemnifying the bond against losses of excise duty. The intelligence from this source had always been A 1 grade and continues to increase in quantity”. The operations listed in that note as being dependent on intelligence from LCB included Edenderry, which became Fusion.
23. Mr Carter-Manning submitted that the checks and balances involved when advising a client as to plea require the utmost good faith at every stage, so far as the prosecution are concerned. The common law duty applicable in relation to Fusion required reference to the judge if the prosecution had any doubt about disclosure and all involved had a continuing duty of review. (see Keene [1999] Cr App R 1). It is fundamental that a judge should be told the true position: Judge Mota Singh was not, even three months after the Dunn memorandum of 2nd February 1999. What happened on the voir dire was as relevant to Rahul as to Nilam. Although, in his basis of plea, Rahul denied a connection with LCB, the prosecution did not accept this, and in opening the case on sentence on 20th December 1999 (transcript 29D), referred to Sihota (the service of whose statement on the defence was the immediate cause of Rahul’s plea) saying that Rahul took him to LCB and there introduced him to Pearson, an LCB employee. In sentencing Rahul to 5 years, submitted Mr Carter-Manning, Judge Mota Singh appears to have accepted that he was close to LCB. Mr Carter- Manning submitted that Rahul’ s position is indistinguishable from that of Sewell in the Villiers appeal: he pleaded guilty but the court quashed his conviction as he was a henchman of the head conspirator whose conviction was being quashed. The court took the view, in the light of the information then disclosed, that Sewell would have material to support an application to stay for an abuse of process and should have the opportunity of so doing, (paragraph 570f the judgment). Mr Carter-Manning submitted that it would be a licence to the prosecution to run amok, at least up to the end of a voir dire, if it were open to them to rely on a plea entered at a time of inadequate disclosure subsequently supported by false evidence.
24. As to Nilam, Mr Carter-Manning submitted that Judge Mota Singh’s ruling on the abuse argument would, inevitably, have been affected by full knowledge. He was told lies by Alfred Allington (see Villiers paragraph 26) and expressly found (21 st July 1999 transcript page 20 A-C) that proper disclosure had been made; that the defence complaints would not have any significant impact on the ability to challenge the prosecution case or the integrity of prosecution witnesses and (transcript 34E); that the Allingtons did not participate in the fraud; and that there was no evidence that the Patels were entrapped, encouraged, incited or enticed to commit an offence which otherwise they would have not committed. Mr Carter-Manning submitted that the present is as bad an example of prosecution misbehaviour before and during a trial as it is possible to see. C & E officers, in breach of their own guidelines, kept no proper records, lost notes and lied to the trial judge; and the C & E solicitors’ department, 3 months before trial, made a decision not to disclose these matters. In addition the judge was misled at the PII hearings.
25. On behalf of Pearcy, Mr Batcup adopted the submissions made by Mr Carter- Manning. He stressed that trust between bench and bar and bar and bar is essential to the integrity of the system of criminal justice. Counsel must be able to give informed advice to encourage early, proper, pleas. It would be absurd if a defendant who pleads early is in a worse position than someone who adopts a policy of wait and see. Pearcy’s role was secondary to that of Rahul, who recruited him. On proper disclosure there would have been arguments in relation to entrapment and agent provocateur. Mr Batcup pointed out that the voir dire before Judge Mota Singh finished in July 1999, but it was another 2 months before Pearcy and the Patels were sentenced. Had proper disclosure been made, Pearcy could have applied to vacate his plea, but he was denied this opportunity.
26. For the Crown, Mr Gompertz QC adopted Mr Glass’s submissions in the Fallover appeal. He pointed out that, whereas M M Patel and Nilam pleaded guilty after the failure of an abuse of process argument, Rahul. and Pearcy had both pleaded guilty at the outset. He submitted that their pleas were not founded on the failure of the Crown to give disclosure in relation to matters bearing upon their guilt or innocence: he relied on paragraph 59 in Togher. The failures on the part of the prosecution did not amount to misconduct justifying either a stay or interfering with freely-entered, unequivocal, pleas of guilty, by legally advised defendants fit to plead who knew what they were doing. They should not be permitted to resile from their pleas unless there had been a breach of process of the gravity arising in Mullen and ex parte Bennett. He distinguished the courts approach in Villiers to Sewell on the basis that the court there did not have the passage in paragraph 59 in Togher in mind. Rahul pleaded guilty because Sihota had made a statement and was likely to give evidence against him, demonstrating considerable contact between Rahul and LCB. Mr Gompertz accepted, however, that there is no distinction properly to be drawn between those pleading guilty before and after a voir dire. He also accepted, that, as the purpose of calling Alfred Allington was to prove the AADs, if the jury disbelieved his evidence about these the Crown would have been in great difficulty and its case would have failed. He also accepted that a defendant is entitled to assume that there has been full disclosure when he pleads. As to Nilam, he said he was on weaker ground. He conceded, that the judge might have ruled differently in relation to a stay had he known the full facts. But the judge in his ruling, on 21 5t July 1999 (transcript pages 32-34), would still have been entitled to conclude, as he did, that Nilam was not entrapped, because there was no nexus between Nilam and LCB. As to the PII hearing, he conceded that the judge was not told that Alfred Allington was a participating informant. But when Alfred Allington gave evidence at the PII hearing on 15th June 1999 he expressed concern about threats to his family if he was accused of being an informer.
27. As to Pearcy, Mr Gompertz submitted that he had pleaded guilty three weeks before there was any mention of an abuse of process hearing. The principal evidence against him was his own record of transactions in relation to un-customed goods taken from LCB to other places. There was no other link between him and LCB and no contact between him and Edward Allington. Persons involved with removal of goods voluntarily applied themselves to the fraud.
28. In reply, Mr Batcup submitted that, if there had been proper disclosure in the Fallover trial in February 1999, there would have been no Fusion trial in May. Mr Batcup stressed that Pearcy had had an honest haulage business and might well have been able to run an entrapment defence if there had been proper disclosure.

Conclusions as to Rahul. Nilam and Pearcy

29. In paragraph 26 of their judgment in Villiers. to which we have already referred, the CACD concluded that, with the knowledge of customs personnel, Alfred Allington lied to Judge Mota Singh in four respects. Furthermore, on the basis of disclosure now made, Small’s evidence to Judge Mota Singh was also dishonest in the manner identified above in paragraph 22. Had he not been misled by those lies, Judge Mota Singh’s decisions in relation to disclosure and stay of proceedings might have been different. Accordingly, Nilam was precluded from properly advancing an abuse argument and pleaded guilty. Mr Gompertz concedes that Rahul and Pearcy should be in no worse position. We repeat, in relation to this appeal, what we said in paragraph 18 above. It follows that the appeals of Rahul, Nilam and Pearcy are allowed. Their convictions are quashed. A re-trial is not sought in relation to Nilam. As Rahul and Pearcy have like M M Patel, both served their sentences and as their offences were alleged to have been committed more than 4 years ago, we do not think it in the interest of justice that they should be re-tried.

BAJWA, Early, Dowell & Vickers

30. We turn to the Fajita appeals.
31. For Bajwa, Mr Guest made the following submissions.
32. When, on 1^st March 1999, Bajwa pleaded guilty, there had been a total failure to disclose to his advisers a very substantial body of unused material and other documents which were directly material t an abuse of process submission and to challenging the authenticity of vital prosecution evidence.
33. The substance of the undisclosed material was that Alfred Allington was a participating informant who was operating LCB as what was, in effect, a honey trap, with the knowledge and encouragement of C & E. He was not registered, nor did he have a handler or controller, as required by the Guidelines. Nor were proper records kept of his contacts with C & E. Fu her, in the course of the witness statement made on 23 February 1998, Alfred Allington failed to disclose that he was a participating informant and that the AADs, referred t in that statement as being produced by him from the records of LCB, were, at least in part, documents which had, in truth, been supplied as exhibits to the statement by S. It was further submitted that it was never disclosed that AADs would be routinely removed from LCB by or on the instructions of Small of NIS, very soon after they c e back from the apparent consignee to LCB and often without Alfred Allington knowing which documents were being removed.
34. It was submitted that the on-disclosure of the intervention by NIS into the documentation and of the physical control which NIS exercised over that documentation deprived the appellant of the opportunity of challenging, if not destroying, a vital part of the prosecution evidence, namely proof that AADs were stamped with a bogus warehouse stamp from Spain or France. In essence, because of the way in which NIS had con rolled the documentation and subsequently supplied the AADs exhibited to his statement, and having regard to the encouragement by NIS of LCB in co-operation with customers who set out to defraud the bond, it might have been possible to demonstrate t at Alfred Allington was unable to prove that the AADs bore the bogus stamps when they were received by LCB and that the stamp might have been added by NIS. If the prosecution’s evidence could be neutralised in that way, its entire case would, or at least might, collapse.
35. As already indicated, in the course of February 1999, Alfred Allington had given evidence at the trial of M M Patel before HH Judge Hucker. In the course of the hearing the voir dire on the abuse of process and at the PII applications at the start of that trial, Alfred Allington had given untrue evidence on two matters, as found by this court in Villiers, namely (1) that if an AAD bearing a stamp were returned to LCB he would not know if there had been a fraud and (2) that he had no discussion with Small about an indemnity from C & E for LCB. This evidence clearly masked the function of Alfred Allington as a participating informant. At the time when Bajwa pleaded guilty neither he nor his advisers had any knowledge of the falsity of this evidence.
36. In addition to these undisclosed facts, there was, up to 1 March 1999, a very extensive and concerted exercise by NIS and those advising it the aim of which was to hide from the defence the participation of Alfred Allington and LCB in the fraudulent disposal of the goods.
37. Thus, by the time when primary disclosure pursuant to section 3 of the Criminal Proceedings and Investigations Act 1996 was completed on 6 October 1998, there had been no disclosure that Edward Allington was a registered informer or that Small was his handler.
38. The appellant further relies on the fact that the non-disclosure of the conduct of the Allingtons and LCB was in the face of Bajwa’ s express allegations, first made at the remand proceedings in March 1998, and repeated at the transfer proceedings on 11 August 1998, that the directors of LCB were working in collusion with C & E to facilitate the diversion of bonded goods. There followed, in October 1998, an independent report by a senior customs investigating officer in which he concluded that the allegations were “spurious, unfounded, diversionary tactics” on the part of Bajwa. However, on 1 February 1999 there took place a conference with Prosecution counsel, Mr Noel Lucas and Mr Ashley Norman, attended by, amongst others, on behalf of the C & E Maureen Dunn, and Mr Tony Bond of NIS. The notes of the meeting record that Bajwa was said to have withdrawn his allegation, presumably of collusion between the NIS and Alfred Allington, and further disclose that those present were extremely concerned as to the consequences for the pending prosecutions of disclosure of the true position of Alfred Allington. Various options were discussed, including proceeding with the prosecutions in the hope that the information did not break. It is submitted, and we infer, that the information under consideration was that he was at least closely involved with those suspected of fraud if not a participant himself The fact that on 26 January Mrs Dunn had written to Mr Tom Kark who was about to open the prosecution case in the trial at Kingston informing him that Alfred’s role had moved from being merely a trade source to being an informant suggests that the lawyers concerned with the prosecutions were at least worried about the precise nature of Allington’s involvement. The letter dated 2 February 1999 written by Mrs Dunn to Mr Flood, already referred to, clearly demonstrated the lawyers’ perception of the risk that Allington would “apparently become a guilty party to the frauds”. Whatever doubts counsel and solicitors entertained, there would have been no doubt in the mind of NIS officers, such as Small and Bond, that Alfred Allington was a participating informant.
39. Further, in the course of February 1998, NIS appeared to have procured a meeting between Bajwa and Pearson of LCB. It is suggested on behalf of Bajwa that their .- meeting was intended to create evidence, for the purposes of the prosecution in the Fajita trial, that the man known only as Jag, who was believed to be in direct contact with LCB, was Bajwa. This was a further example of NIS concocting evidence which should have been disclosed.
40. Mr Guest argued that the failure to disclose these facts to counsel and his client, prior to the giving of advice on plea and to the taking of the decision to plead guilty, unlawfully deprived Bajwa of information directly relevant to his decision whether to plead guilty. Had he been given the information which ought to have been disclosed, he might well have been advised that there was an arguable defence based on entrapment and abuse of process and that the prosecution case could be seriously undermined by its inability to prove that the AADs were stamped with bogus stamps when they were returned into LCB’s hands. Bajwa was therefore effectively deprived of the opportunity of, at the very least, putting the prosecution to proof of its case.
41. Although the conviction of Bajwa occurred on 1 March when he pleaded guilty, he was not sentenced until 30 July 1999. In the meantime, on 4 July 1999, the first Fajita trial commenced before HHJ Maher at Wood Green. There was a PII hearing almost at the outset. Small gave evidence and both he and Bond were present during the hearing and so lent support to what counsel told the judge. In the course of it, the judge was not told that Alfred Allington had acted as a participating informant. Indeed he was presented by counsel (Mr Lucas) and by Small in evidence as an enthusiastic bonded warehouseman and trade source, in contrast to Edward Allington who was disclosed as a registered informant. The Judge was never told that, at Alfred Allington’s request, NIS had, at least impliedly, given LCB an indemnity against liability for goods removed without the payment of duty. Nor was the judge informed of the information given by Maureen Dunn to Mr Kark or of what Mr Kark told HHJ Hucker in January 1999 or of the contents of Mrs Dunn’s report of 2 February 1999 to Mr Flood. The judge ordered disclosure of the payment of £100,000 to Alfred Allington by a customer and its payment to C & E some two years later, but declined to order any further disclosure.
42. Judge Maher and the defendants in this trial were not aware of these lies told to Judge Mota Singh, as found by this court in Villiers.
44. It is argued on behalf of Mr Bajwa that, had there been full disclosure to the judge at the PII hearing or prior to of sentence, he would have been bound to order further disclosure to the defendants, included Bajwa, even though the latter had already pleaded. Had that been done, Bajwa could have mounted an abuse of process application, which might have led the judge to order his plea to be vacated before sentence. Accordingly, the unfairness of the proceedings continued up to sentence. By the time when yet further disclosure had been made to the judge in February 2000, which caused him to order full disclosure that Alfred Allington was a participating informant, he was functus officio as regards Bajwa. Thereupon, the second Fajita trial at once collapsed when the prosecution offered no evidence against the remaining defendants. Had that order been made earlier, Bajwa might not yet have been sentenced and his application to vacate his plea might have succeeded.
45. For Early, Mr Bridge, while relying on the continuing non-disclosure and the untruthful evidence of Alfred Allington, Pearson and Small, drew attention to the following additional matters.
46. On 17 December 1998 Early, at his request, had a meeting with NIS officers Bond and Muldoon. Amongst various allegations made by Early was that Alfred Allington was involved with a man called Boparan in the Fajita fraud. He also claimed to have in his possession original documents, understood by Bond to be AADs, copies of which Allington had provided to Boparan.
47. Early had not pleaded guilty until 24 May 1999, after HHJ Maher had given his ,,~”~ decision on further disclosure following the PII hearing on 4 and 5 May. At that hearing, the judge was given the impression that Alfred Allington’s evidence, as contained in his statement relating to vehicle movements and exhibiting the AADs, might well be uncontroversial. Mr Bridge drew the attention of this Court to the fact that the statement was taken by Small and to the evidence given by Small at that hearing to the effect that Allington was volunteering information as to when he was “with certain people” and as to all those who opened an account at LCB, in other words, everything about his day to day business, including drawing to the attention of Small the appearance of false stamps on AADs. It is submitted that there was nothing to suggest to the judge that Allington, much less C & E, were encouraging or facilitating the frauds.
48. Mr Bridge further drew attention to the fact that, although some AADs were signed by Edward Allington, a registered informant, no statement was taken from Edward and it was decided to prove the AADs by calling Alfred, because, apparently, as a mere trade source, he was regarded as a less vulnerable witness than Edward.
49. The impact of the involvement of the Allingtons with the fraud on the reliability of the prosecution evidence was further exemplified by the production, by Early, of an AAD signed by Edward Allington, but with no foreign warehouse stamp. The AAD in question was identical to one exhibited to Alfred Allington’s statement, except that the one exhibited did bear a stamp, but was not signed by anybody. That raised a potentially serious question as to the circumstances in which the stamp was applied and whether it might have been applied by NIS. A report, dated 9 July 1999, of an investigation conducted by Mr Martin, a senior C & E investigating officer concluded that these documents, being in their original format, were evidence of the diversion fraud. Although this might well be so, it left. unanswered the question how Alfred Allington came to exhibit to his statement a stamped but unsigned AAD.
50. Following the judge’s decision on the PII hearing, advice was given to Early as to his plea. In the event he pleaded guilty. He did so without information which should have been disclosed as to the involvement of the Allingtons with the fraud and the connivance of NIS in that involvement. Had that information been available when that advice was given, there would have had to be taken into consideration the possibility W of an abuse of process defence based on entrapment and the possibility that the prosecution evidence of fraud by reference to the stamps on the AADs could be seriously challenged. We interpose that, if, following the decision on the PII hearing before HHJ Maher, it had been disclosed to the defence that the judge had been materially misled by what he was told about the role of Alfred Allington, there would have been available a powerful independent abuse of process argument.
51. In March 2000, before sentencing Early, the judge, having conducted a further PII hearing, after there had been disclosure to him of the involvement of Alfred Allington as a participating informant, invited submissions from those who had pleaded guilty as to whether their pleas should be vacated. He declined to vacate any of those pleas, but gave no reasons for that decision at the time. In all the circumstances, he should have done so on the basis of the material then before him. Instead, after the prosecution had reacted to his ruling on disclosure at the PII hearing in February 2000 by offering no evidence against those co-defendants who had pleaded not guilty and they having been acquitted by direction, he went on to sentence Early on 22 September 2000. Accordingly, the incomplete disclosure which continued up to that time placed Early at an unfair disadvantage at the sentencing hearing.
52. On behalf of Dowell, Mr Lakha, adopting submissions advanced for Bajwa and Early, further submitted as follows.
53. At the PII hearing in May 1999, the judge was seriously misled not only by the evidence of Small but also by that of Bond, who confirmed in answer to the judge that everything, even of the most peripheral interest or relevance, had been disclosed. This reflected a concerted exercise by NIS to conceal the extent of Alfred Allington’s involvement, there having been discussion as early as September 1996 as to the problems for the various pending prosecutions arising from his involvement with those who were illegally removing goods from LCB.
54. Mr Lakha also drew attention to the culture of secrecy relating to LCB, exemplified by an internal NIS email of 4 April 1996 relating to the concern raised by Alfred Allington as to the liability of LCB for duty on goods fraudulently abstracted and indicating that LCB should not be charged duty for which, as a bonded warehouse, they would otherwise be liable. it was also apparent from that document that Allington had knowingly allowed goods to be illegally removed from LCB without payment of duty. The message ends “this note should not be discussed outside the NIS”.
55. Amongst the undisclosed material was a document consisting of a NIS report on operation Chamfer which stated that, with the knowledge and encouragement of NIS officers, Allington had relaxed certain requirements for seals on lorries in respect of removals from the warehouse. This proved fatal to the prosecution case before Judge Mota Singh and was potentially relevant to the defence of Dowell, in as much as it went to encouragement of the fraud by C & E and, therefore, to a possible abuse of process argument. This was potentially important to Dowell, against whom the case was based on observation of the movement of a single load driven by him.
56. Dowell, having originally pleaded not guilty on 18 December 1998, changed his plea to guilty on 27 May 1999, following the PII decision. He did so in the light of the incomplete information then available. He also relied on assurances from the prosecution that the basis of plea proposed by him would be acceptable, namely that it related only to count 1, conspiracy to cheat the Revenue, on one occasion on 6/7 February 1998, when he was party to the diversion, on the instructions of another, of a load of alcoholic beverages from LCB and their delivery to a warehouse in Charlton for which he was paid £60. He had become a party to the agreement to cheat when he attended at LCB and became aware that the goods were destined for Spain but nevertheless continued to follow the instructions to deliver in Charlton. Two counts of being knowingly concerned in fraudulently evading duty chargeable on goods were not proceeded with and, on 22 September 2000, he received a sentence of 100 hours’ community service. His decision to plead took into account advice from counsel on the basis of the incomplete disclosure received up to that time. Subsequently, following the order by HHJ Maher for disclosure of Alfred Allington’s true role in February 2000, application was made on Dowell’s behalf for his plea to be vacated, but on 21 July 2000 this was refused. In essence, therefore, his plea of guilty had been made in reliance on incomplete information, due to substantial non-compliance by the prosecution with its disclosure duties made worse by untruthful evidence given by the prosecution witnesses at the PII hearing.
57. On behalf of Vickers, Mr Reece with commendable brevity, adopted the submissions on behalf of the other appellants.
58. On behalf of the prosecution, Mr Noel Lucas told this Court that, had he appreciated at any time before 24 February 2000 that Alfred Allington had been a participating informant, he would have at once disclosed this to HHJ Maher as he did immediately he saw the NIS internal email dated 4 April 1996 (see paragraph 53 above). He told the judge that neither he, nor Mrs Dunn, nor Mr Bond were previously aware of that document or other documents in the file which had just been provided to them by Mr Connolly of NIS in the course of the PII hearing in which he had been called as a witness.
59. Mr Lucas submitted ‘that the legal team had previously understood that Alfred Allington had not been a participating informant, but merely a trade source -a bonded warehouseman who was volunteering information beyond his strict duty. The advice which had been given in the conference with Mrs Dunn on 2 February 1999 -either to disclose Allington’s true position, or to refer it to the judge or to avoid calling him - had not been given because it was relevant to any live issue in the case. We were referred to a note dated 7 March 1999, written by counsel for C & E, by way of post mortem in relation to the collapse of the Fajita trial, in which the view was expressed that the judge had become increasingly concerned that the true nature of the relationship between Allington and NIS ought then to be disclosed because it went to the quality of Allington’s evidence: the defendants had all withdrawn the admissions which they had previously been prepared to make as to the LCB evidence about ~ movements of goods.
60. Mr Lucas further relied on the fact that there had been disclosure to the judge of documents and information from which it would have been clear to him that Allington was running LCB as a means of acquiring information for NIS and what the source and nature of the information was. He emphasised that there were no less than 44 linked prosecutions in respect of these LCB frauds. The information and evidence that emerged in all of them were too complicated for anyone person to keep track of for the purposes of disclosure. The fact that disclosure was not made earlier did not therefore indicate any concerted exercise in deception.
61. Mr Lucas accepted that, overall, the one matter that should have been disclosed was that Allington was a participating informant. That, however, was not material to any issue in the case, as demonstrated, for example, by Bajwa’ s defence statement in which, for the purposes of the sentencing hearing, he put forward what he claimed to be the extent of his participation in the fraud.
62. The fact that Allington’s role was that of a participating informant was no more relevant to any issue involving Early, Dowell and Vickers. In reality, the misrepresentation of his status went no further than to his credibility.
63. Even without Allington’s evidence it would have been possible to prove, by less direct means, that the AADs were false documents. However, Allington’s evidence was a stronger method of proof and Mr Lucas conceded that, without it, the prosecution case would be “listing a little bit”.
64. Mr Lucas took this court through the transcript of the PII hearing on 4/5 May 1999 in order to demonstrate what information was given to the judge and further to show that the judge was prepared to regard Allington as, in substance, an informant but could not see why that affected the case against any of the defendants, having regard to undisputed evidence of the fraud.
65. Mr Lucas further referred us to the judge’s reasons, given in private in July 2001, for deciding in May 1999 and 2000 not to order disclosure of the documents and information sought to be withheld to those who had already pleaded but remained unsentenced. The substance of his reasoning was that, while accepting that Allington was an informant who had kept C & E fully informed at all stages and, there was, perhaps, some mileage in the argument that C & E had permitted the fraud to operate, the basis of the pleas of all those defendants was that they had no direct contact with C & E or LCB before deciding to embark on their dishonest activities. Although there was some concern inside C & E about the methods employed, he detected no dishonesty. There was no entrapment of anyone and, even if there were, it was not a defence in English law. Thus, if all that material had been in the hands of the defence, it would not have enabled an abuse of process argument to be mounted with any . reasonable prospect of success.
66. We interpose that the judge took a different view on the prospects of an abuse of process argument succeeding when, on 28 February 2000, he ordered full disclosure of Allington’s position to all those defendants who had not yet pleaded. On the materials then before him, he concluded that an abuse of process argument based on the involvement of LCB and C & E with the frauds was not so fanciful a submission that disclosure should be withheld. The fact that, when he came to consider disclosure to those defendants who had pleaded, he arrived at a different conclusion on abuse of process on substantially the same evidence suggests that he must have been influenced by the interposition of the guilty pleas. However, that should, in the circumstances of the present case, have been an extraneous factor when considering the effect of this procedural impropriety by the prosecution.
67. Mr Lucas further submitted that Villiers was a very different case from the present: the matter was there opened to the jury on a false basis and the defendants were running defences not raised in the present case.
68. As to the argument advanced by Early relating to the duplicate AADs, Mr Lucas referred us to the July 1999 Report by Mr Martin of C & E in which it was suggested that the duplications were properly issued “in order to obtain satisfactory evidence of receipt in accordance with the relevant EEC Directive”.
69. In reply, Mr Guest for Bajwa submitted that his client, who had pleaded guilty on arraignment, should be in no worse position than a defendant who had not so pleaded until after a PII ruling against disclosure. He relied on this Court’s approach to the defendant Sewell who had already pleaded in Villiers.
70. He further submitted that HHJ Maher’s decision in July 2001 was reached without the benefit of argument by the defence. Further, there had, since then, been significant further disclosure. He also emphasised the evidential significance of the fact, not disclosed to the defendants, that the AADs were being removed by NIS from LCB and therefore were under the control of the C & E almost from the outset. Yet Allington was the only means of proving the falsity of the stamps.
71. Mr Bridge for Early, in his reply, drew attention to the duty of the C & E, as laid down in Regulation 23 of the Excise Warehousing Regulations 1988, to return to the warehouseman within a. reasonable time records taken away for inspection. This had not been done with large numbers of AADs removed at once and then retained by NIS.
72. Mr Lakha for Dowell, emphasised that, in the course of the May 1999 PII hearing, the judge was misled, in as much as the true significance of the defects in record-keeping as to contacts with the Allingtons was not brought home to him.
73. Further, he drew attention to the apparent inconsistency between the views of the judge at the February 2000 PII hearing and those expressed in his judgment, given in private in July 2001, refusing further disclosure to those who had pleaded, to which we have already referred.
74. Mr Reece for Vickers, in reply, pointed out that the judge had never been informed of . the extent of the loss of duty attributable to transactions at LCB being monitored by NIS, namely £310 million. He also drew attention to the fact that Vickers had pleaded guilty 10 days after Bajwa, perhaps influenced by the course taken by a defendant in closer contact with LCB.

Conclusions as to Bajwa. Early. Dowell & Vickers

75. With regard to Bajwa; as we have already indicated, a defendant who pleads guilty at an early stage should not, if adequate disclosure has not been made by then, be in any worse position than a defendant who, as the consequence of an argument to stay proceedings as an abuse, has the benefit of further disclosure which leads to the abandonment of the proceedings against him. The disclosure of Alfred Allington’s involvement as a participating informant and of the extent of the control exercised by NIS over the AADs was directly relevant to the strength of the prosecution evidence of fraud based on the false AADs and it was further relevant to a possible abuse of process argument. So also was the fact that Allington had, in February 1999, given false and misleading evidence at the PII hearing before HHJ Hucker in the Fallover proceedings. At the time when Bajwa was in the course of taking his decision to plead, none of those matters had been disclosed. His decision was therefore taken on the basis of information which was materially deficient by reason of the prosecution’s failure to comply with its duty of disclosure.
76. Vickers pleaded guilty 10 days after Bajwa, and is therefore in a similar position.
77. For these reasons, the convictions of Bajwa and Vickers are unsafe and are quashed.
78. Early and Dowell both pleaded guilty in May 1999, following the judge’s decision against disclosure of information and documents at the PII hearing on 4/5 May 1999. At that hearing the judge was seriously misled as to the role of Alfred Allington by reason of the untruthful evidence of Bernie Small and by what he was told, quite innocently, by counsel on the basis of inaccurate instructions. This was therefore a seriously tainted hearing. If the judge had been given the full information to which he was entitled, it is, in the view of this court, most improbable that he would have taken any other course than to order the same full disclosure to the defendants as he ordered following the hearing in February 2000, at which he was given a much fuller picture of the involvement of LCB with the fraud and of C & E with LCB. Had he taken that course, it is probable that the prosecution would have dropped the case against Early and Dowell, as was done in March 2000 in relation to other defendants. Accordingly, the prosecution’s failure to comply with its duties of disclosure and its abuse of the PII hearing in May 1999 have given rise to the conviction of Early and Dowell. Their convictions are accordingly unsafe and are quashed.
79. As to whether there should be a retrial of Bajwa, although he has not yet completed the total consecutive sentences (2 years consecutive to 6 years for other offences), the . period of time which has elapsed since the Fajita events is now already over four years. Further, serious evidential and professional problems may well arise on a retrial in view of the plea of guilty previously entered by this appellant. Similar considerations apply in relation to Vickers who is still serving a sentence of 10 years to which the 18 months sentence he received for the Fajita offences was consecutive. It is not, in our view, in the interests of justice that Bajwa or Vickers should be retried. Early has now served his sentence and is on licence. It is not appropriate that he should be retried. No retrial is sought in the case of Dowell.