Neutral Citation Number: [2008] EWCA Crim 1518

Case No: 1994/06296/C5 – 2006/01972/C1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ Harris QC sitting in the Crown Court at Birmingham
HHJ Fabyan Evans sitting in the Crown Court at Isleworth

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/07/2008

Before:

Lord Justice Hooper 
Mr Justice Stadlen 
and
Mr Justice Maddison 
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Between:

	Mohammed Yousef Rafiq
Altaf Hussain	Appellant	
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	The Crown 	Respondent	
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 (Transcript of the Handed Down Judgment of
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Ms Ruth Brander (instructed by T Osmani & Co) for the appellant Mohammed Yousef Rafiq
Ms Maya Sikand (instructed by T Osmani & co) for the appellant Altaf Hussain
Mr Andrew Bird (instructed by the RCPO) for the respondent Rafiq
Mr Jonathan Ashley-Norman (instructed by the RCPO) for the Respondent Hussain

Hearing date: 9 May 2008
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Judgment

Lord Justice Hooper: 
Mohammed Rafiq
1.	Mohammed Rafiq was convicted following a trial at Birmingham Crown Court on 26 September 1994 of conspiracy to evade the prohibition upon the importation of heroin. He appeals his conviction following the quashing of the conviction of his co-defendant Shah Nawaz by another division of this court see [2007] EWCA Crim 307. We grant Rafiq an extension of time in which to renew his application for leave to appeal conviction following refusal by the single judge. The prosecution do not oppose the appeal, Mr Andrew Bird of Counsel and Ms Ruth Brander of Counsel have prepared an agreed note to assist the court in the understanding of the case. 
2.	At the start of the hearing we announced that the appeal would be allowed and the conviction quashed. 
3.	The conviction of Nawaz was quashed it having been conceded that there was non-disclosure of material which, if known to the jury, might have affected the jury’s verdict to convict. The trial judge directed the jury that they should first consider the case of Nawaz and only if they were sure that Nawaz was guilty could they go on to consider the case of Rafiq. Put simply, unless Nawaz was guilty Rafiq was not guilty. This was a logical approach to the evidence and reflected the way in which the Crown had put the case. In the light of the quashing of the conviction of Nawaz it follows that the conviction of Rafiq must also be quashed.
Altaf Hussain
4.	We turn to the case of Altaf Hussain. He appeals his conviction following a reference by the Criminal Cases Review Commission, for whose report we are very grateful. The respondent did not concede the appeal and we heard detailed argument over a period of two days. At the conclusion of the hearing we announced our intention upon the handing of this judgment to quash the conviction. We now give our reasons for that conclusion.  
5.	On 3 June 1988 in the Crown Court at Isleworth the appellant Altaf Hussain was convicted of an offence of complicity to contravene to section 170(2) of the Customs and Excise Management Act 1979. The only documentary material now available is a transcript of the summing-up and of a few submissions, two statements made by the participating informant (“PI”) known in the case as Gulab Khan and the advice on appeal prepared by trial counsel Mr Rafique. We shall use the name by which the PI in this case has been described in a number of cases, namely Mark. We do not have a copy of the indictment, although we do our best later in the judgment to work out what it said.
6.	The operation which led to the conviction of Hussain and his co-defendant Abdul Quddas was known as Operation Bridport/November Express (“November Express”). It followed the usual pattern of these cases. A PI, in this case Mark, tells a Drug Liaison Officer (“DLO”) in Pakistan that he has been asked to be a courier to take heroin to the United Kingdom. The PI collected the drugs and they were brought here by a customs officer. In England the PI contacted the UK purchaser, conversations between them were recorded and the purchaser was arrested when he collected the drugs or when he was about to do so. Mark received £2,000 from HMCE. 
7.	Mark gave evidence that he was introduced through a friend to Shenwari, who on the prosecution’s case was the supplier. According to the advice of counsel prepared for an unsuccessful application for leave to appeal, Mark gave the name Mohammed Arshad, a shopkeeper in Rawalpindi, as the friend. Mark said that at the end of August 1987, in a hotel in Rawalpindi, he had been introduced to Shenwari, who asked him if he was prepared to carry heroin to England on his behalf. Mark told him that he was interested and prepared to do it. 
8.	About a week later, according to Mark, he had another meeting with Shenwari in a hotel in Rawalpindi. Shenwari told Mark that he wanted him to take two kilogrammes of heroin to his buyer in England, the appellant Altaf Hussain. He gave a phone number for Altaf Hussain. That was in fact Altaf Hussain’s home number. Mark was told that on delivery in England £30,000 would be paid by Hussain to Mark, £20,000 for the heroin and £10,000 as the courier fee. Shenwari gave Mark a telephone number in Peshawar, on which he was contactable between 9am and 2pm. After he had arrived in England Mark did not call Shenwari, or at least there was no recording of any such phone call as there should have been if one was made. 
9.	Delivery of the heroin took place in Peshawar on Monday 14 September 1987. Delivery was taken in a road outside a hotel in Peshawar. Shenwari gave Mark money to purchase his ticket and for his expenses, so Mark said. On 16 September following the hand-over Mark said that he saw Shenwari again and Shenwari told him that he should ring the number in Peshawar and he would either take Mark’s number to pass to Altaf Hussain or give Altaf Hussain’s number to Mark. According to Mark’s witness statement:
He also gave me one half of a ten rupee note number 601233. He told me that after contact with Altaf Hussain was established I was to hand over a sample and then on delivery of the two kilogrammes I was to match the other half of the ten rupee note before I handed the heroin over.
Shenwari had not asked Mark for his name but after the hand-over of the ten rupee note Shenwari asked Mark by what name Altaf Hussain would know him. Mark gave the name Gulab Khan. The witness statement was dated 18 September 1987, one day before his departure for England. 
10.	His next statement was dated 28 September 1987 and made after the appellant had been arrested. 
11.	In this second statement Mark said that just before his departure from Pakistan, Shenwari gave him a telephone number on which to contact Altaf Hussain in England. That number was the number of a public phone box very close to the appellant’s house. According to the summing up:
“… just before leaving, [Mark] talked to Shenwari again on the telephone I think. He gave him another telephone number and this time it was the [phone box] number…”
Shenwari told him that he had to ring at 10:00 o’clock, 11:00 o’clock and 12:00 o’clock midday. He was told that Altaf would be there and he was told by Shenwari that if he could not get through, he had to ring a second number and say that he was a friend of Shenwari. The second number was the appellant’s  home number, which, according to Mark, he had first been given when he met Shenwari for the second time. 
12.	On 21 September having been installed in a hotel near King’s Cross, Mark began a series of phone calls and meetings with the appellant. Every phone call and every meeting was recorded.  
13.	The first phone call made by Mark was to the phone box without success at about 11.00 am on 21 September. We shall come back to that later.
14.	Later on the same day the appellant met Mark at Mark’s hotel and took away a sample of heroin. Following more phone calls and discussions about money the appellant and his co-accused arrived at the hotel with £5,000 intending, on the prosecution’s case, to take the heroin away. The recorded conversations indicate that Mark was asking for more money or the balance of the money when the drugs were sold on by the appellant. 
15.	It was the appellant’s case at the trial that a trap had been prepared for him. As the contemporaneous advice on appeal points out, it was the prosecution’s case that Shenwari had employed Mark who, unbeknown to Shenwari was working for Customs. The advice continues
Accordingly it was vital for the prosecution to establish a genuine plan or intention on the part of Shenwari et al to send heroin to England. The defence case rested, in part, on the extreme improbability of this aspect having regard to Mark’s role and the evidence as it came out.
16.	On the prosecution’s case, the transcripts of the conversations disclosed clear evidence that the appellant was a party to the conspiracy and a willing receiver of the heroin. It was the defence case that the appellant suspected Mark of trying to sell heroin and that he took part in an elaborate “play acting” with the intention of getting Mark to show him the heroin and then report him to the authorities. However, this was not the story he gave when interviewed after arrest.
17.	The judge summarised the appellant’s case in the following way:
“What about the case of the two defendants in a nutshell, for the moment? First of all, Hussain’s case. He maintains does he not, that although he was a user of heroin at the time, he was not a dealer in drugs. He says that somehow, someone in Pakistan must have got hold of his telephone number in this country and that Gulab Khan and Shenwari were part of a plot – not to import drugs illegally, but to set up an elaborate trap, using British Customs in order to secure his arrest in this country, totally falsely. By implication, it is said, as I understand it that the authorities in Pakistan and the British Customs, knew all about the falsity of the whole scheme from the beginning, and entered into this plot to secure Hussain’s arrest, on a totally false basis. He says that it was never his intention to take delivery of two kilogrammes of heroin, or even to pay £5,000 for them; or for that matter any sum of money. He says that he realised that there was something suspicious and was just playing along with it and if he had seen the two kilogrammes of heroin, then he would have reported it to the police. He says that he told a lot of lies on his arrest, because he was refused access to a solicitor and intended to tell the truth when his solicitor arrived. However, when his solicitor did arrive, he said he was of no assistance to him and so he persisted in the same lies. It is argued on his behalf, that if this was a genuine plan, then Shenwari would hardly entrust such a valuable consignment of drugs to a shopkeeper without arranging proper, or taking proper steps to acquire payment for them. On the other hand, you may think and this is a comment which I make, which you just disregard if you do not think it of any worth:  If this was all an elaborate plan by Shenwari to entrap Hussain and there was never any real intention to import and distribute drugs in this country, you may think that Shenwari and his gang were prepared to spend a lot of money on it. That apparently involved the deliberate loss of heroin worth some £30,000 to Shenwari and Gulab Khan, or worth what you have been told is £250,000 in street value here. You may think that a more economical plan could have been devised involving perhaps smaller sample packets, rather than the real thing.”
18.	The advice gives a number of reasons in support of the proposition that Mark’s evidence that this was a genuine supply by Shenwari was not credible. Shenwari entrusted Mark with two kilos of heroin “simply on the say-so of his friend Mohammed Arshad a shopkeeper in Rawalpindi”. On Mark’s account, Shenwari did not know Mark before this transaction and did not even know his name until the last moment. Mr Rafique pointed out that the heroin was delivered in front of a hotel “in the day where there was a high risk of being caught and a heavy police presence”. He also noted that the Narcotics Board of Pakistan was aware of the transaction but had taken no action against Shenwari. If this was a genuine transaction why, asks counsel, would Shenwari have taken a risk not only of being arrested but of losing his consignment? Counsel noted that there had been no repercussions of any sort visited upon Mark as a result of allegedly betraying Shenwari.  Mark had said in the trial that he had met Shenwari after the arrest of Hussain, that he had told Shenwari of Hussain’s arrest and that he had explained his own freedom as an “escape”. We would add that, on the assumption that Shenwari was a genuine supplier who had been betrayed by Mark, Shenwari must have known by the time of the trial of “his” purchaser, that Mark’s freedom was not due to any “escape”.  Mr Rafique noted that Shenwari had told Mark not to part with the heroin without seeing the other half of a ten rupee note (Mark’s half was not seen by the jury) and yet Mark was apparently prepared to release the heroin without Hussain producing the other half.  Mark was prepared to do this without having consulted Shenwari. We also note, as the CCRC noted, that it seems extraordinary that Mark was able to re-negotiate the terms of the sale without obtaining any approval from Shenwari, if Shenwari was a genuine supplier.
19.	The judge was clearly troubled by the submission made by the defence that Shenwari was not a genuine supplier. It was part of the defence case that if the jury concluded that this was not a genuine supply by Shenwari then that would assist the jury in assessing the credibility of the appellant’s account that he realised that what was going on was a trap and that he wanted to find more about what was going on in order to inform the authorities. 
20.	The judge expressed his concerns shortly before summing up when he said to Mr Brompton who appeared for the prosecution:
“... but I would ask for your assistance on another point upon which I may have to direct the jury in due course and that is this:  If it may be that the position is that Shenwari and [Mark] have concocted a plot together, in order to try and trap Hussain and the plan which they concocted together was, that from the outset they were going to tell the customs that these drugs were on their way so that the customs would inevitably arrest Hussain, if that may be the position, would the Crown seek in any way to contend that either of these defendants could be guilty of the offence charged on the indictment?
You see the difficulty we may face is this:  There will be no agreement if that was the case, or no plan to fraudulently evade the prohibition, because if Shenwari and [Mark] had together decided that in fact there never would be a fraudulent evasion of the prohibition because the customs would always know about it, then all you are left with is a trap is it not? Plus some people in this country who intend to try and obtain drugs illegally.”
21.		Mr Brompton replied:
“Well your honour it would depend on how the facts were precisely construed. If for example there was a plan by Altaf to send for drugs from Pakistan and in fact the person he chose or the person who came to his attention and in the event he selected, was Shenwari and [Mark], who in concert decided to frustrate it by not sending the drugs, but alerting the Customs and Excise, well your honour that would be an operative conspiracy in my submission.”
22.	To that the judge replied that that “may be so” but that he would need persuading. He continued:
“As it happens the Crown has presented its case in this trial on the basis that Shenwari was a true conspirator and in the light of the authorities, correct me if, I am wrong but it springs to mind, would you not be open to criticism for flying different colours from the mast? If you turn round and say well Shenwari… This jury could convict on the basis that Shenwari was in fact in the plot… .”
23.		Mr Brompton replied to that:
“It was certainly not my case that Shenwari was in the plot and I would not put my case on that basis and I would not address the jury on that basis.”
24.	With that assurance the judge made it clear to the jury in the summing up they could not convict Hussain unless there was “a genuine plan” illegally to import two kilos of heroin into this country. Later in his summing up the judge again told the jury that they had to be sure that this was a genuine plan to import two kilos of heroin into this country.
25.	We have no doubt that if the evidence which is now available had been placed before the jury, as it undoubtedly would have been, the jury might reasonably have found the appellant not guilty of the indicted conspiracy because Shenwari either was not or may not have been a genuine supplier. Our reasons for this conclusion are as follows.
26.	Operation November Express appears to have been Mark’s second controlled delivery into this country albeit that he had been a paid informer of HMCE from about 1984. He was described at the time as a productive informant. Prior to his first controlled delivery into this country, Operation Noodle, he had worked for other countries. Operation Noodle had led to Mark receiving a total reward of £5,000. Apparently through no fault of his, Operation Noodle had led to no convictions, but had led to a seizure of some twelve kilos of heroin. 
27.	After Operation Noodle, Mark was a PI in Operation November Express, with which this appeal is concerned, in Operation Dire in 1991 and in a number of other operations. The role of participating informants like Mark was discussed in some detail in the first case before another division of this Court dealing with the problem of controlled deliveries, see Choudhrey and Others [2005] EWCA Crim 1988. By the time that Mark did his last operation in the late 90’s, he had become so completely discredited that no reliance could be placed on anything he said. 
28.	In the trial which followed Operation November Express, namely Operation Dire, Mark said in cross-examination that the person who introduced him to Shenwari in the appellant’s case was Nasim Khan and that it was Nasim Khan who had given him the 12 kilogrammes of heroin imported into this country in 1986 as part of Operation Noodle. Later in cross-examination he confirmed again that Nasim Khan had been the supplier in Noodle and the supplier in November Express. That evidence conflicts with the evidence he gave at the appellant’s trial. The respondent admits:-
“In Dire there was evidence of £6,000 having been transferred by the purchasers to Khan shortly before the arrests of defendants. Mark and Nasim Khan therefore appear to have made £18,000 between them as a result of this controlled delivery.”
29.	In 2002 a DLO reporting his views about Mark in the 1980’s said that he was a “cute, clever and intelligent individual” who had to be treated carefully. “He came up, on occasions, with suggestions that were just not acceptable”. The officer refers to Mark’s inconsistency, “unless firmly managed, even as long ago as the mid 80’s”.
30.	In 1999 Mark was described by a DLO as totally motivated by money and almost uncontrollable. “He is the type of informant that never quite gives you the complete picture”. The CCRC which has examined a large number of materials involving Mark concluded that it was unable to satisfy itself “that Mark had ever acted within acceptable boundaries as a PI.” 
31.	By 1997 Mark was arranging with the criminal complicity of officers of HMCE to lose a 1.5 kilogramme sample of heroin with the intention of the money being returned to Pakistan thus avoiding the need for Mark to pay off the suppliers. 
32.	In Operation November Express there is further material to undermine the prosecution’s case that Shenwari was a genuine supplier. This material comes from a series of contemporaneous telexes. As far as can now be established this material was not disclosed to the defence as it ought to have been. Although Mr Ashley-Norman submits that we do not know whether the material was disclosed, having regard to the defence case presented at trial it seems to us very unlikely that, if it had been disclosed, it would not have been used. There is no suggestion in the summing up that it was used. 
33.	This Court is hampered by the absence of a significant number of contemporaneous documents. The DLO in charge of the operation must have kept a note book but that is not available and nor are any of the contemporaneous contact sheets with Mark available. The contemporaneous applications for permission and authorisations have not been located. 
34.	Of particular importance for this appeal is a document dated 10 September 1987 which has been located. It is a telex sent by DLO Hardwick in Pakistan back to England and it deals with a number of questions relating to a man called Ishtiaq Ahmed, described as a confidential informant for HMCE. 
35.	To put this evidence in context, we need to return to what the appellant said at trial about Ishtiaq and the evidence about the first contact between Mark and the appellant.  The appellant said that he had been to Pakistan returning on 4 August 2007 and that whilst there a video had been made of him singing and dancing at a wedding. He said that he had left those video films in Pakistan. According to the appellant on Sunday 20 September (the day Mark arrived in England), the appellant had received a phone call at home from Pakistan telling him that his films were on the way and that somebody would talk to him at 10:00 o’clock on the Monday on the phone box number. The person calling him on the Sunday gave his number in Pakistan as 581114. When he was about to ask the person’s name he was suddenly cut off. However, the appellant told the jury that he recognised the number as the number of a man called Ishtiaq, a friend of a man called Fazal Shah. 
36.	The appellant had to admit in cross examination that it was very odd that Ishtiaq had been able to phone him on the phone box number. His explanation was that he had the number in a diary because his girlfriend used to phone him on the number, that he had lost the diary in Pakistan and it could be that someone had found the lost diary. 
37.	Observation evidence put the appellant near the booth on the morning of 21 September 1987 at about 3 minutes to ten, he lingered by the phone box but left at 10:13 without receiving a call. In fact Mark did not phone the booth until 11:00 o’clock and again at 12:00 o’clock. Mark then phoned the appellant’s home number. During that phone call Mark said that he was a friend of Shenwari. The appellant said that he had been at the phone booth because, as he was to explain later, Ishtiaq had told him to be there at 10:00 o’clock. 
38.	If not before, the appellant’s evidence that Ishtiaq had phoned him on the Sunday to tell him to be at the phone booth at 10:00 o’clock on the Monday, should have triggered disclosure of the 10 September telex and related documents. 
39.	The telex reveals that Ishtiaq’s brother was in prison in the United Kingdom on a drugs charge. According to the telex both Ishtiaq and his brother wanted to give assistance to HMCE with the view to obtaining the release of the brother as soon as possible. There is reference in the telex to Fazal Shah, who worked for Pakistan International Airlines and who was suspected of being involved with drugs. HMCE in England wanted to know how it was that Fazal Shah had approached Ishtiaq if Ishtiaq was only an innocent businessman. The reply was that Ishtiaq made it his business to let people know he was in the drug trade so that he could obtain information. Fazal Shah had, according to the telex, supplied Altaf Hussain’s name to Ishtiaq as a UK buyer. The telex explained that Mark had met Shenwari through Ishtiaq and that Fazal Shah and Shenwari (described in the telex as the supplier) were related. 
40.	In answer to the question how Mark had contacted Shenwari, the reply in the telex was that Ishtiaq had spoken to Fazal Shah who had Shenwari’s number in Peshawar.  The telex also said that there was no independent evidence to show that Shenwari actually existed.  
41.	Doing the best we can, it appears from this undisclosed telex that Ishtiaq had held himself out as a person dealing in drugs and that Fazal Shah had told Ishtiaq that Altaf Hussain was a UK buyer of heroin. Ishtiaq had given this information to DLO Hardwick on 9 August 1987.  Ishtiaq introduced  Mark to Shenwari, Ishtiaq having been given Shenwari’s telephone number by Fazal Shah. It could be said that it is unlikely that Fazal Shah would give information about Shenwari, unless the supply by Shenwari was not genuine.  If the supply was genuine, Shenwari would be at serious risk of arrest.
42.	We were also supplied with the undisclosed contemporaneous notes of conversations in England between police officers and Ishtiaq’s brother in prison. That shows that the brother was offering information in March 1987 with a view to favourable treatment. On 11 August 1987 according to Ishtiaq’s brother, Pakistani “friends” will call the English officer handling the brother.  They would provide details of a courier and recipient in the United Kingdom in return for a favourable report on the prisoner. It was said that the friends in Pakistan were suppliers and therefore reluctant to deal with the DLO in Pakistan. 
43.	On 8 September 1987 the prisoner said his associates in Pakistan were not suppliers and they had told him that they had been in touch with DLO Hardwick. This is probably a reference to Mark, because on that day there is an undisclosed telex from DLO Hardwick and another DLO informing HMCE in London that Mark from Operation Noodle has been approached by supplier Shenwari to take two kilos of heroin to Altaf Hussain. Approval was given on 9 September and the telex to which we have referred was dated 10 September.
44.	On 14 September 1987, the day the drugs were collected, the prisoner was talking about a possibility that the importation might be delayed. 
45.	On 7 October 1987 the prisoner was saying that he was in extreme danger in view of the operation. He asked that no further operations involving his telephone number in Karachi be undertaken. 
46.	The fresh evidence and the undisclosed material paint an entirely different, albeit confused, picture of what happened in Pakistan from that which emerged at the trial. It is sufficient to say for our purposes that if the material had been disclosed and/or if the fresh evidence was available then the jury may well have reached the conclusion that Shenwari was not a genuine supplier because he knew what was going to happen when the drugs arrived in England. 
47.	Mr Ashley-Norman has submitted that as a matter of law it makes no difference whether Shenwari was or was not a genuine supplier. That, as we have seen, was not the view taken by the trial judge and was not the way in which the case was presented to the jury either by him or by Mr Brompton. 
48.	We looked with Mr Ashley-Norman at Yip Chiu-Chung v The Queen (1994) 99 Cr. App. R. 406 (PC) and R. v. Latif and Shahzad  [1996] 1WLR 104 (HL). Yip Chiu-Chung does not help. The offence in that case required no more than proof of export without a licence and thus could be committed by an undercover officer agreeing to the export without a licence.
49.	Lord Steyn in Latif was prepared to assume, without deciding the issue, that a customs officer bringing heroin into this country as part of a controlled operation would commit an offence against section 170(2). We confess to considerable doubts whether an officer (and his colleagues in the operation as well as the senior authorising officers) can be knowingly concerned in any fraudulent evasion of a prohibition if he brings the drugs in with the full knowledge of his superiors even without a licence. In any event, there was, in this case, no evidence whether a licence had or had not been issued by the Secretary of State pursuant to section 3 of the Misuse of Drugs Act 1971. 
50.	Mr Ashley-Norman has submitted that the officer might be knowingly concerned in a fraudulent attempt at evasion, namely the attempt being made by the UK purchaser. We do not need to decide the point because Mr Ashley-Norman rightly conceded that Shenwari himself could not have been knowingly concerned in any fraudulent evasion or attempt at evasion of the prohibition if the supply was not genuine, that is, if he believed that the heroin was to be brought into this country by a customs officer. He was right to make the concession notwithstanding Jones and Warburton [2002] EWCA Crim 735, in which the court said that 
“13. … There is no authority in English criminal law that it is a defence on the part of someone who has actually committed a crime that he was doing so with the ulterior motive of law enforcement.”
51.	Shenwari, if the supply was not genuine, did not agree to commit a crime, because he did not agree to the fraudulent evasion of the prohibition.
52.	 It follows that the conviction must be quashed in the light of the fresh evidence and/or of the undisclosed material.
53.	Mr Ashley-Norman submitted during the course of argument (although not in his original skeleton argument) that we should substitute for the conviction a conviction for attempted evasion or conspiracy with Quddas to supply heroin. 
54.	On the assumption that this court has the power to make such a substitution, it was the appellant’s defence that he did not agree to the import of the drugs.  His awareness that there were drugs involved only came later after they had been imported. He thought, so he said, that through Ishtiaq he was going to get the videos. As Mr Rafique submitted, if the supply was not a genuine supply, that could assist the appellant in showing that he was not involved in the importation of the drugs.  Given the undisclosed evidence about Ishtiaq’s involvement, that of his brother in prison and the undisclosed evidence of the involvement of Fazal Shah as well as the fresh evidence relating to Mark and Nasim Khan, we are unable to say that a jury would necessarily have reached the conclusion that the appellant was party to an agreement to import drugs, notwithstanding the very considerable strength of the evidence against him. The jury might reasonable conclude that he was the victim of a set-up.  We are also very much aware that if there had been full disclosure as there should have been, the appellant might have had more ammunition in support of his case. 
55.	Mr Ashley-Norman submits that there would be no injustice to the appellant to approach the case now on a completely different basis to that presented at trial and substitute a conviction for the conduct of the appellant after the time when, as he accepted, he knew that Mark was in possession of drugs and was offering to supply them to the appellant. 
56.	 There is no dispute that the substantive defence of attempted evasion is a continuing offence, see the authorities cited in Archbold 2008 para. 25-459 and following. It is no defence for a defendant to say that he only handled the imported drugs after they had been imported and was not involved in the importation. Thus Mr Ashley-Norman submitted that the appellant was guilty of attempted evasion during the period immediately preceding his arrest. 
57.	We shall concentrate on the evidence which tends to support an offence of attempted evasion committed by the appellant after he realised on his first visit to Mark’s hotel on 21 September that Mark was in possession of drugs and was offering to supply them to the appellant (rather than on evidence which tended to support the prosecution’s case that he was involved in the importation of the drugs from the outset).  
58.	There was no dispute as to what the appellant said and did at this stage, including remarks made on a number of occasions which suggested strongly that he was involved in drug dealing and had been for some time. On the first visit he took away a heroin sample.
59.	By the time of the second hotel visit on the next day, the appellant had smoked the sample. He indicated to Mark that the sample had been approved. There was substantial drugs related conversation, including discussion concerning future consignments of three to four kilograms, the dangers of using airports or hotel rooms for drugs handovers, and the possibility of telling police officers that heroin seized was in fact chapatti flour.
60.	During the first hotel visit on the next day there were detailed discussions about the intended payment and arrangements were made for the appellant to return later that day. At the second hotel visit it was agreed that the appellant would bring £5000 the following day. On the telephone the appellant confirmed that ‘that task had been completed’, in other words, £5000 had been gathered.
61.	The appellant told Mark that his ‘man was coming from Manchester’.  In the event Quddus, the appellant’s co-defendant, came from Manchester
62.	An arrangement was made for the collection to take place at 20.30 that evening. On 24 September the appellant visited the hotel again, this visit culminating in his arrest.  He had £5000 on him.
63.	Additionally there was drugs related conversation between the appellant and Quddus whilst Mark was out of the hotel room.  
64.	The appellant’s case was that he went to the hotel to collect two kilograms of heroin. This was all a pretence, and if he had been able to “see the drug then I was going to decide whether or not to tell the police and I came to a firm decision that if I didn’t see the drugs I wouldn’t see him again”. It was the appellant’s case that he did not intend to deal in drugs, and he would simply have given the £5000 back to his friend who had loaned it to him. The appellant was not intending to give the money to Mark. It was the appellant’s case that the conversation which took place when Mark was out of the room had continued as a part of the pretence in case Mark was listening outside the door.
65.	Following his arrest, in interview the appellant said that he was in the hotel in order to loan Mark £5000. He gave this lying account to the interviewing officers because he was in shock and under pressure. There also appears to have been a suggestion that the appellant was not satisfied with the legal advice that he was receiving.
66.	If the appellant, after he realised that Mark was attempting to supply him with drugs, was or may have been play acting with the intention of disclosing all to the authorities it seems clear to us that he would neither have committed the offence of attempted evasion nor conspiracy to supply. There would have been no intent fraudulently to evade and no intention to make an onward unlawful supply. 
67.	The jury must at trial have been sure that the supply from Pakistan was a genuine one but rejected the appellant’s account that he was play acting. In the light of the evidence available at the trial but not disclosed and in the light of the fresh evidence tending to show that the supply was not a genuine one, we ask this question: If the jury had been asked whether they were sure that the appellant (after he realised that Mark was offering to supply him with drugs) was not play acting, would they inevitably have concluded that he was not play acting? We cannot be certain of that.  
68.	It is not in these circumstances strictly necessary to decide whether this court could in any event substitute a conviction for either attempted evasion or conspiracy to supply. Given that the point was argued, we shall, however, give our views. 
69.	This court cannot substitute a conviction for attempted evasion or conspiracy to supply unless permitted to do so by section 3 of the Criminal Appeal Act 1968, as amended, which provides:
(1)     This section applies on an appeal against conviction, where the appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of the other offence.
(2)     The Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of the other offence, and pass such sentence in substitution for the sentence passed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity.
70.	It will be noted that the court is not required to substitute. Given that there is a discretion, we would not be willing to substitute. Following a failure to disclose very material evidence, the prosecution’s new case is so different to that which the appellant faced at trial that there must be doubt whether, if we were to substitute, the appellant would have received a fair trial.  
71.	Section 3 imposes a two stage test. It requires the court to determine whether the jury could, on the indictment for conspiracy to contravene section 170 (2), have, as a matter of law, convicted the appellant of the two suggested offences. If so, the court must ask itself whether the jury must have been satisfied of facts which proved him guilty of the suggested offences. As to stage 2 we are not so satisfied. 
72.	As far as stage 1 is concerned, the court in Graham [1997] 1Cr. App. R. 302, at 313A emphasised that at the first stage the court can only look at the indictment and not at the evidence. 
73.	To see whether stage 1 is passed, we need to know what the indictment said. Given that we do not have a copy of the indictment, we are left with two documents from which to ascertain its terms. One document is the advice on appeal prepared by Mr Rafique. He summarises the particulars of offence in this way:
“On divers days between 1 August 1987 and 25 September 1987 he conspired with Haji Shenwari and other persons unknown to contravene Section S.170 (2) of the Customs and Excise Management Act 1979 by being knowingly concerned in the fraudulent evasion of the prohibition of goods namely 1.995 kilogrammes of diamorphine a class A controlled drug imposed by Section 3(1) of the Misuse of Drugs Act 1971.”
74.		The other document is the summing-up. The judge summarised the particulars of the offence in this way:
“Abdul Quddas and Altaf Hussain, on divers dates between the first day of August 1987 and the 25 day of September 1987, conspired together and with Haji Saiftur Shenwari and other persons unknown contravened [sic] Section 170 (2) of the Customs and Excise Management Act 1979, by being knowingly concerned in a fraudulent evasion of the prohibition on importation of goods, namely 1.995 kilogrammes of diamorphine, a class A controlled drug, imposed by Section 3(1) of the Misuse of Drugs Act 1971.”
75.	MS Maya Sikand accepted that the word “contravened” in the summing up is an error and that the indictment must have read, conspired together…“to contravene”.  We shall assume that the terms of the indictment were as set out by the judge, subject to this one change.
76.	To decide whether, having regard to the terms of the indictment, the jury could have convicted the appellant on the suggested new charges, it is necessary to look at section 6(3) of the Criminal Law Act 1967, which provides:
Where, on a person's trial on indictment for any offence ..., the jury find him not guilty of the offence specifically charged in the indictment, but the allegations in the indictment amount to or include (expressly or by implication) an allegation of another offence falling within the jurisdiction of the court of trial, the jury may find him guilty of that other offence or of an offence of which he could be found guilty on an indictment specifically charging that other offence.
77.	Lord Roskill in R. v Wilson; R. v Jenkins [1984] AC 241, at 258; said that the sub-section envisaged four possibilities:
“First, the allegation in the indictment expressly amounts to an allegation of another offence. Second, the allegation in the indictment impliedly amounts to an allegation of another offence. Third, the allegation in the indictment expressly includes an allegation of another offence. Fourth, the allegation in the indictment impliedly includes an allegation of another offence.”
78.	 As in Wilson, we are concerned with the fourth possibility. 
79.	The certified question in Wilson was:
"Whether on a charge of inflicting grievous bodily harm contrary to s. 20 of the Offences Against the Person Act 1861 it is open to a jury to return a verdict of not guilty as charged but guilty of assault occasioning actual bodily harm.”
80.	The answer to the question depended upon whether offence B (assault occasioning actual bodily harm) can be an included offence of offence A (inflicting grievous bodily harm) even though it is not necessary to prove B as a necessary step to proving offence A. Lord Roskill said that “... if “inflicting” can, as the cases show, include “inflicting by assault” then” by virtue of section 6(3) allegations of “inflicting impliedly include ‘inflicting by assault’” (page 261). The cases, to which Lord Roskill referred, were cases which showed that the offence of inflicting bodily harm may as a matter of law be committed by an assault although the cases also show that it may be committed in the absence of an assault. 
81.	Mr Ashley-Norman submits, rightly, that a conspiracy to commit an offence against section 170(2) in relation to drugs will normally involve as a matter of fact an evasion or attempted evasion and a conspiracy to supply drugs. Thus, so he submits, the jury could have convicted the appellant of attempted evasion or conspiracy to supply and the stage 1 test is satisfied. Mr Ashley-Norman adopts the submissions made by Mr Sells QC in R and Others [2006] EWCA Crim 1074 to a similar effect, submissions in which Hughes LJ saw a good deal of force without, like us, having to decide the point.  
82.	This submission can only be right if Lord Roskill is saying that if the commission of offence A will normally involve the commission of offence B as a matter of fact, then offence B is included in offence A.  In our view he is not saying that. Indeed, we add, any such principle would not be easy to apply.   Lord Roskill is saying that offence B is impliedly included in offence A if offence A can in law be committed by the commission of offence B, albeit offence A contains further requirements. A conspiracy cannot be committed as a matter of law by the commission of the substantive offence. If a substantive offence has been committed, it is no more than evidence from which it may be inferred in an appropriate case that there was an agreement to commit the offence. The fact that many conspirators may have committed the substantive offence is not sufficient, in our view, to pass stage 1. Many of those who commit burglary under section 9(1)(a) of the Theft Act with intent to steal may also be guilty of theft or assault, but theft or assault are not, in our view included offences, whereas they would be on a charge against section 9(1)(b). 
83.	Mr Ashley-Norman had a further argument. He submitted that the indictment in the present case was worded in such a way that the jury had to be sure that the substantive offence had been committed. The particulars of offence were worded in an unusual way. Normally the particulars of offence allege a conspiracy fraudulently to evade the prohibition on the importation of a controlled drug. In this case they alleged that the defendants had conspired to contravene section 170(2) “by being knowingly concerned in a fraudulent evasion”.  Mr Ashley-Norman argues therefore that in order to decide whether or not the appellant had conspired, the jury had to ask themselves whether he had in fact been knowingly concerned in the fraudulent evasion.
84.	Ms Sikand argued that the indictment was saying no more than the appellant had conspired to be knowingly concerned. Certainly her interpretation of the charge is to find support from the way that the trial judge directed the jury. The judge said to the jury (page 175) that there had not in fact been a fraudulent evasion of a prohibition because the authorities were not deceived, quite the opposite. 
85.	We are prepared to assume, without deciding, that in the event of a count of conspiracy to commit offence A alleging the commission of the substantive offence A as an overt act in furtherance of the conspiracy, then stage 1 may be satisfied in relation to the substantive offence A. Mr. Ashley-Norman submits that in this case the wording of the indictment was such that it was alleging evasion as an overt act. That interpretation conflicts with how the trial judge left the matter to the jury. Fortunately we do not need to resolve this further issue, though we incline to the view that the indictment was framed in such a way as to refer to ‘being knowingly concerned in the fraudulent evasion…’ only as part of the object of the conspiracy, and not as an independent overt act.
86.	We would wish to say in conclusion how grateful we are to all those who helped in the preparation of the appeal for all the work which they have done to make our task easier.