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JAMIL, R v. [2001] EWCA Crim 1687 (17th July, 2001)
Case No: 200001336 X3
Neutral Citation Number: [2001] EWCA Crim 1687
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 17th July 2001
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE JUDGE
MR JUSTICE HOOPER
MRS JUSTICE HALLETT DBE
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REGINA
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MOHAMMED
ALI JAMIL
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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MR LALITH DE KAUWE appeared on behalf of THE APPELLANT
MISS S. MAHMOOD & MR MICHAEL GARRETT appeared on behalf of THE
CROWN
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Judgment
As Approved by the Court
Crown Copyright ©
Mr Justice Hooper
1. On 25 May 1989 at the Crown Court at Birmingham (HHJ Nicholl) Mohammed Ali
Jamil, the appellant, was convicted by a majority of 10 to 2 of unlawful
possession of a controlled drug, namely heroin, with intent to supply. At his
first trial the jury had been unable to reach a verdict. On the same day he
was sentenced to 7 years' imprisonment. For reasons of which we are unaware, no
application for leave to appeal against conviction was made. On 9 October
1990 the Court refused an application for leave to appeal against sentence.
2. In July 1989 the West Midlands Police received a letter of complaint from
the appellant, in which he made serious allegations against the officers who
had given evidence at his trial. That complaint was referred to the Police
Complaints Authority which supervised an inquiry. In March 1991 that Authority
wrote to the appellant stating that no action was to be taken against the
officers the subject of his complaint.
3. On 1 October 1997 an application was made by the appellant to the Criminal
Cases Review Commission ("CCRC"). A year later Mohammed Jamil died. His
widow, Elizabeth Jamil, took over the application on behalf of her deceased
husband. On 1 March 2000 the CCRC referred the conviction to this Court under
section 9 of the Criminal Appeal Act 1995. At the outset of the appeal and
pursuant to section 44A of the Criminal Appeal Act 1968 we granted Elizabeth
Jamil approval to continue the appeal.
4. The principal ground of the appeal concerns the non-disclosure of material
in the possession of the police and prosecution before the start of the trial.
5. On 24 October 1987 the appellant and his wife rented a flat at 73 Foley
Road, Ward End, Birmingham. On the night of 6-7 February 1988 the flat was
burgled and a considerable amount of property was stolen. As a result of the
break-in the appellant changed the locks to the flat but did not give his
landlord, Mr Alam, a set of the new keys. About a week before the events with
which this case was concerned, the appellant installed in the flat new carpet
paid for by the landlord. Some of that carpet was laid in the first floor
corridor leading from the stairs.
6. On Friday, 1 April 1988 at about 10.30 p.m. the appellant suffered a second
burglary at his flat. The police arrived at the flat at 10.36 p.m. a few
minutes after receipt of the report and told the appellant that scenes of
crimes officers would come to the flat the next day. The appellant's account
of the burglary when subsequently interviewed was as follows:
"... I went home, saw the front door open and saw a West Indian chap walking
towards my kitchen. I went in and said "What the hell are you doing?" The
Asian bloke was looking under the settee in the middle of the room. He stopped
looking, picked up the TV and said "Police .. you are under arrest". I stood
to one side by the door and they walked out. I followed them outside ran to
the off-licence and asked for a pen off the person who served me. He enquired
why and I told him "Just give me the pen and call the police." I ran after the
car it reversed down Foley Road into Morris Road and drove off before I could
get the reg. no. I thought it was a silver Rover 2-3 series, a new car
probably C reg. After that I went back to the off-licence and gave the details
to the police over the phone. They arrived within minutes."
7. He was asked how the men had got in and he said that the police had told him
that they had forced the front door lock and that he and the police officers
had checked every door and window. He said there was a television and two
Giros missing. The appellant gave a similar account in evidence, accepting
that the door had been forced (see pages 11-12 of the summing-up).
8. Acting on information received, at 6.30 the following morning the police
executed a search warrant at the home of a Mr Mohammed Rashid ("Rashid"). The
police suspected Rashid of being involved in the burglary at 73 Foley Road and
being concerned in the supply of drugs, for which two offences he was arrested.
Hidden in a settee were 4 dealer wraps containing heroin. Subsequent analysis
showed that the heroin contained "an unusually high proportion of methaqalone,
which was of remarkable similarity in composition to the heroin" later to be
found at the appellant's flat in two bags under the floorboards and (on the
prosecution's case) in the appellant's bus pass (Grounds of Appeal, paragraph
14). The evidence was that all these drugs were likely to have come from the
same source. The defence chose not to put this scientific evidence before the
jury. We shall explain in due course why this decision was made.
9. During the search Rashid was told about the burglary in Foley Road and he
replied that he was in the road with a friend, Dervinder Singh Gill, but that
he did not go into the house. Rashid was subsequently interviewed in Urdu. He
said that at 6.40 on the Friday evening he had gone to see Gill and there was
present a Mr "Ejaz" and a West Indian man with him. He said that they were
going to make collections for the mosque and did in fact do so. Later that
evening he was a front seat passenger in a new silver coloured car which he
thought belonged to Mr Ejaz. Gill was driving the car and Ejaz and the West
Indian man were in the back. The car stopped in a road the name of which he
(now) said he did not know. Ejaz and the West Indian got out and were away for
15-20 minutes. He was asked whether, when they returned, they were carrying
anything. He replied that he had not taken any notice. He said that they had
said nothing about where they had been. He said that Ejaz was not a friend of
his but that he had known him for the last 5-6 months and that he lived in
Leicester. He did not know the West Indian man. There were then the following
questions and answers translated into and from Urdu:
"Q. Are you aware that a burglary took place at 73 Foley Road on 1 April
1988?
A. No, I don't know.
Q. A West Indian man and an Asian were disturbed doing burglary; they drove
off after being seen in a new silver car, what do you know about it?
A. I don't know anything about it.
Q. A television was stolen and I believe you helped in the burglary didn't
you?
A. No I didn't take any part in this burglary, nor did I help in it.
Q. We believe the real reason for this burglary at that house was to steal
heroin which was hidden there you went to that house with the West Indian and
stole the television and heroin didn't you?
A. No this is not true it is false."
10. It was put to him that: "You together with others, went to that house last
night to find the hidden heroin didn't you". Rashid answered no. He had no
previous convictions. He denied that what the police found was heroin. He
later pleaded guilty to simple possession of the four wraps before the
appellant's second trial had taken place.
11. We turn back to the events of Saturday morning.
12. Within an hour of the search of Rashid's house, six officers from the West
Midlands Police Drug Squad, DI Parish, DS Hopkins, DC Littler, DC Robotham, DC
Young and DC Foulston, executed a search warrant at the appellant's flat. The
appellant was expecting a finger-print expert and learnt then or shortly
thereafter that the officers were from the Drug Squad.
13. Beneath a point where two strips of carpet abutted in the first floor
corridor at the top of the stairs, the police discovered two short lengths of
floor-board. In the words of the CCRC, it was the prosecution's case (not
apparently disputed) that the drugs were concealed "beneath a convenient joint
in the carpet". Hidden beneath the floorboards, the police found two
polythene bags which contained in all some 89 grammes of powder, including some
14 ½ grammes of heroin. The street value was said to be approximately
£10,000 and evidence was given that the heroin found had a higher
percentage of heroin than that normally found in street heroin.
14. The powder contained an unusually high level of methaqalone. According to
the evidence, methaqalone is a drug sometimes used to dilute illicit heroin,
but normally only in small amounts. Methaqalone is expensive and the high
concentration of methaqalone rendered "the recipe" less economic than if
cheaper agents of dilution had been employed.
15. As to the carpet, it was put to the appellant in interview (page 13) that
there was a slit in the carpet which allowed access to the area where the
heroin was concealed. He said that he had put down the carpet about a week
before, that the carpet had been bought in cut lengths and that "each one that
fitted was placed where it was."
16. Having denied that he knew about the heroin under the floor boards, the
appellant was taken downstairs. On the prosecution's case he was asked whether
there was any more heroin in the house and he replied: "A bit in me wallet but
that's not mine either". When a wrap of powder was found in his bus pass
wallet within his black leather coat he said, according to the prosecution,
that that was not his either but that he was holding it for someone. That
heroin was shown to be of the same distinctive type as the heroin contained in
the two bags under the floor boards. The wrap, according to the prosecution,
was made from the page of a video guide found in the dining room. The page of
the video guide had been torn up to make other squares. During a later search
of the property conducted by DC Robotham after returning to the property, it
was the prosecution's case that traces of heroin were recovered from the dining
room table, the heroin matching that found earlier. He also discovered, under
the bed, a piece of burnt silver foil with traces of heroin. The bedroom had
earlier been searched by DC Young and DC Foulston who had not found the burnt
foil, a matter explored before the jury.
17. In interview and at trial the appellant denied all knowledge of the drugs,
not only those under the floor boards but the other three items. It was,
however, accepted by him that the drugs were found under the floor boards. He
denied making the alleged verbal admissions and it was his case that the police
officers had both fabricated the admissions and the evidence relating to the
finding of the wrap in the wallet, the foil under the bed and the traces on the
table.
18. It was an important part of his case that he would not have reported a
burglary if there had been, to his knowledge, drugs in the flat.
19. In October 1988 the appellant's solicitor asked by letter a number of
questions of the Crown Prosecution Service, which responded by letter on 7
December 1998. The solicitors asked what enquiries had been conducted in
relation to the burglary at the appellant's home and what steps were taken
against Rashid and "Mr Dervinder Singh Gill". The CPS's reply was that Gill
had been arrested and interviewed but was refused charge. No answer was given
about Rashid. The CPS were asked what steps had been taken to trace or
identify Mr "Ejaz", to which there was no response. Asked on what basis Rashid
was arrested on suspicion of burglary at the appellant's home, there was no
response.
20. In so far as Rashid was concerned, the details of his arrest, what he said
in interview and the scientific evidence linking what was found in his settee
with the drugs found at the appellant's flat were all disclosed as unused
material before the trial. The police had wanted the two cases to be tried
together but the CPS lawyer had decided that there was insufficient nexus
between the two cases. The two cases then proceeded down separate paths with
those passages in the committal statements relevant only to the other
defendant's case remaining legible but with a line through them. Mr Michael
Garrett, who represented the respondent before this Court, made an unsuccessful
application to consolidate the two indictments. That application was opposed
by counsel on behalf of Rashid but not by counsel on behalf of the appellant.
Thereafter Mr Garrett conducted the case against Rashid but not against the
appellant. Rashid pleaded guilty and was sentenced prior to the start of the
second trial. The CPS informed the appellant's solicitors of the result on 11
May 1989. There is no material to suggest that Rashid was approached by those
representing the appellant.
21. The appellant's interview contained the following passage which was put
before the jury and referred to by the learned Judge in his summing-up. The
questions were asked by DS Hopkins.
"Q. Do you know a man called Rashid?
A. No I've never heard of Rashid until you mentioned it to me.
Q. He is in custody here at the moment he admits being one of a number of men
who went to your house last night not to steal your TV but to steal the heroin
they knew to be concealed in your home. Our information is that you have been
dealing in heroin. Any comment?
A. No I have not been dealing in heroin I've never seen Mr Rashid or any of
the other men in my house.
Q. They were unsuccessful in finding the heroin because it was so well hidden
I suggest they knew it was there because you have been offering it for sale.
A. No I've never had heroin in my possession I've never actually seen or dealt
with the stuff in my life."
22. The assertion by DS Hopkins that Rashid had admitted being one of a number
of men who went to the house to steal the heroin which they knew to be
concealed in the home was an inaccurate representation of what Rashid had said.
It was an accurate representation of what the police strongly suspected had
happened. It is submitted in Ground C of the appeal that this "misleading
account" of what Rashid had said raised doubts about the integrity and
credibility of his evidence and of the police evidence generally. If those
advising the appellant had wished to take the point during the trial it was
open to them to do so. They had the necessary material to show that it was
"misleading". It appears that no such attack on the officers' credibility was
made. Further the defence could have had the whole passage excluded from the
copy of the interview which went to the jury. The defence, so it appears,
decided not to do so.
23. During the course of their deliberations the jury asked the following
question: "The burglars seem to consider that drugs were in Mr Jamil's house.
Why did he think this?" They must have asked that question because of what was
set out in the passage which we have just cited from the appellant's interview.
In response the Judge replied as follows:
"We do not know. We have not heard the burglar. All we have heard is that in
the course of the interview a police officer told Mr Jamil that one of the
burglars who had been arrested had said he believed that there were drugs in
the house. I said to you that in the course of summing-up that is not
evidence. What the burglar believed would be based on something he had been
told, presumably on the basis that there are drugs in that house hidden
somewhere. Mr Jamil's defence is that he had not hidden the drugs there,
someone else had. What the burglars believed does not really touch on that
point ... so the short answer to the question is that we do not know why the
burglar thought there were drugs there, but even if we did, it would not help
very much in deciding the question of guilt or innocence."
24. In summary the defence did not challenge the "misleading" account nor did
the defence have it excluded. Nor were the jury told that the heroin in the
four dealer wraps found in Rashid's house were of "remarkable similarity" to
the heroin found in the two bags under the floor boards and said to have been
found in the bus pass.
25. If the jury had been told about the "remarkable similarity", the
overwhelming probability is that the jury would have been invited by the
defence to conclude that the four dealer's wraps found in Rashid's settee had
been stolen by Rashid (or by the burglar) from the appellant's flat. However
taking this course would have presented further difficulties for the defence.
Given the forced entry, given that the appellant had found the two burglars on
the ground floor and had found one of the two burglars looking under the
settee, and given that the drugs under the floor boards had obviously not been
discovered by the burglars, the jury would have had no difficulty in concluding
that there were drugs in the appellant's flat other than those concealed there.
That however would have been quite contrary to the appellant's case that he had
no knowledge of any drugs in the flat and that the police had fabricated the
evidence against him. That would explain the very sensible forensic decision
made by the defence not to let the jury know about what had been found in
Rashid's house.
26. At the trial the defence positively alleged that the drugs under the floor
boards had been left in the flat by the landlord and the jury was urged to act
on that suggestion. Among the difficulties which the defence faced with
suggesting that the landlord was the owner of the drugs were the following: the
appellant accepted that the landlord had not had any keys to the flat since the
burglary of the 6/7 February, the landlord could only obtain access to his
drugs by forcing an entry and the landlord had concealed the drugs in a spot
where anyone working in that area (e.g. laying a carpet) could easily have
found them.
27. On 4 April 1988 a police report was prepared for the benefit of the CPS by
Acting Detective Inspector Hopkins who was the officer who had interviewed the
appellant (according to the interview notes he was a Detective Sergeant). It
seems clear that that report was available to counsel who prosecuted the
appellant. The report reads as follows:
"1. At about 10 pm on Friday 1.4.88 the defendant Jamil claims he disturbed
several men burgling his rented house at 73 Foley Road, Ward End. He reported
the matter to police, claiming the theft of a T.V. set.
2. Information was subsequently received by Drug Sqd officers to the effect
that Rashid was one of the men responsible and the burglary was in order to
steal from Jamil a large quantity of heroin with which Jamil was dealing. They
were disturbed by Jamil but had stolen some heroin.
3. In the early hours of Saturday 2.4.88 officers executed a search warrant at
40 Henley St, Rashid's H/A. Hidden in a settee with some other powder were
several dealers wraps containing heroin. He admits being party to the burglary
at Foley Road with the intention of stealing the heroin from Jamil.
4. As a result later that day a warrant was executed at 73 Foley Road. From
under floorboards, which were carpeted, was recovered approx 9 oz of heroin
with a street value in excess of £100,000 [later reduced to £10,000].
From his bus pass wallet was recovered a dealer's `wrap' cont. almost exactly 1
gram of heroin.
5. Jamil denies any knowledge of the heroin at all. He admits being in
possession of the only set of keys to premises, he admits having laid the
carpet covering the floorboards, on the landing, that concealed the heroin,
just one week ago. The carpet is laid in such a manner to give access to the
hiding place. He lives alone. It is significant that there are very few
carpets fitted in the house, other than that covering the hiding place [this
was disputed].
6. The heroin recovered in Rashid's possession has been chemically identified
as from the same `batch' as that recovered from Jamil."
28. The contents of the Report were not, it appears, disclosed to the defence.
However, this is of no significance. The material contained in the report was
known to the defence. In particular the contents of paragraph 2 were known,
given the circumstances of Rashid's arrest, the questions put to him then and
later, the finding of the four wraps as well as the quoted passage from the
appellant's interview. The last sentence of paragraph 3 contains the same
"misleading" account of what Rashid had admitted and adds nothing.
29. During the course of the review, the CCRC located a police report dated 22
June 1988. That report appears not to have been disclosed to either the CPS or
counsel for the prosecution. We have read the whole report and following an ex
parte hearing we ordered disclosure of the only information of any possible
relevance:
"About 2.00 am Saturday, 2nd April 1988, the informant obtained contact with me
through my Divisional Control Room.
He stated that the previous night (Friday 1.4.88) he had travelled to
Birmingham and spent the evening in the company of HUSSAIN [in fact Rashid],
GILL and a third man, a West Indian who he did not wish to give details of.
He stated that he drove all three to Foley Road, Birmingham, where two of them
entered a house intending to steal drugs from the drugs dealer who occupied the
house.
On their return to the car the informant states they were in possession of a
portable television set. HUSSAIN told him they had not found the drugs but the
informant saw him secrete a bag, which he believed to be drugs, inside his
jacket. This bag he described as smaller than a bag of sugar."
30. We shall assume that the contents of that report in some form or another
ought to have been disclosed to the defence and we shall further assume that,
if asked to do so, the prosecution would have formally admitted that which was
implicit on the papers, namely that there was information that the burglars
intended "to steal drugs from the drugs dealer who occupied the house." We
shall assume further that the prosecution would have admitted that it had
information that Rashid had said that he and the other burglar "had not found
the drugs" and that Rashid had been seen to secrete a bag with was believed to
contain drugs.
31. Assuming that disclosure of this information should have been made, "would
the only reasonable and proper verdict been one of guilty" if it had been made?
(See Francom and Others [2000] Crim. L.R. 1018.) To answer that
question in this case, we have asked ourselves: "Would the defence have made
any use of this material if disclosed?". The defence knew that the
prosecution's case was that the purpose of the burglary was to steal drugs.
The defence chose only to make limited use of that information by allowing
before the jury the extract which we have quoted from the defendant's
interview. The defence knew that there was a "remarkable similarity" between
the drugs found in Rashid's house and those found at the appellant's house, but
chose not to use that information. We have no doubt that the prosecution would
have readily made an admission if asked, that Rashid had stolen the drugs from
the appellant's flat. If the defence had wanted to prove that Rashid was in
possession of drugs from the appellant's house, it could easily have done so on
the material then available. Understandably the defence chose not to do so.
The fact (if it be so) that Rashid had told the informant that they had not
"found the drugs" would only have made it even clearer than it already was that
the burglars were expecting to find drugs.
32. It was submitted that the report could have led to the obtaining of further
information. In some cases that may well be right. In this case the defence
appear not to have followed up the sources of information which they already
had in their possession. In any event it is inconceivable that any of those
involved in the burglary would have helped the defence, quite the contrary. It
might have been of interest to know how long the burglars were in the house.
However that information was already known to the defence because Rashid had
told the police that the two burglars, whom he described as Ejaz and the West
Indian, had been away for 15-20 minutes.
33. It is submitted on behalf of the appellant that the defence was
disadvantaged by the failure to disclose that the purpose of the burglars was
to "steal from the occupier". That deprived the defence, so it was
said, from reinforcing the suggestion that as far as the appellant was
concerned "the occupier" was Mr Alam, the landlord. With respect to Mr de
Kauwe that begs the question; "Who was the occupier?". In any event the
report did not use the word "occupier", but the words "the drugs dealer who
occupied the house".
34. He further submits that the jury may not have convicted had they known that
Rashid had burgled the premises and was seen leaving with a bag of powder that
was believed to be drugs. He says that, in those circumstances, the jury
would have been more likely to accept the possibility of someone else, other
than the appellant, being involved. This overlooks the fact that the entry to
the house was forced and overlooks the forensic difficulties which the defence
would have faced if this line of argument had been adopted (see paragraph 25
above).
35. It is further submitted that the appellant's defence would have been
reinforced had it been confirmed that within a short time of the burglary there
was information that it was drugs related. Had, so it is submitted, the
appellant any reason to believe that the burglary was drug related he would not
have reported it or left evidence of drugs for the officers to find. However,
as we have shown, that information was available to the defence in the used and
unused material and the point was forcefully made before the jury.
36. It is submitted that the information would have provided the defence with a
stronger basis for inviting the jury "to infer an explanation for why the
heroin found at Rashid's house was of remarkable similarity in composition to
that found at the appellant's house." That information was known to the
defence and was not used at the trial.
37. It is submitted that the information could have provided further material
as to the source of the heroin found in the wrap, on the foil and on the dining
room table. This it is submitted would have helped the appellant in his claim
that the drugs had been planted. For reasons which we have already set out, it
would have done exactly the opposite.
38. We turn to Ground B. In the words of the skeleton argument:
"The reliability of the evidence of the `verbal' admissions and the findings of
the small amounts of heroin in the wrap (DP5), the burnt silver foil (KRR2) and
the traces on the dining table (KRR2), is now undermined by the subsequent
disciplinary findings recorded against Detective Constable Robotham.
PARTICULARS
B1 Detective Constable Robotham who was a central figure in the search of 40
Henley Street and 73 Foley Road, and gave evidence as to the alleged admissions
and the finding of the said exhibits, appears to have been elevated as a
thoroughly honest and trustworthy witness, who had been 13 years in the police
and never been disciplined - see the Summing Up at page 28. And at page 19 the
following was also said:-
`But of more importance you may think is this; Mr Robotham was the officer who
was to act as exhibits officer. He had brought with him a case containing the
tamper proof bags which the Drug Squad, for obvious reasons you may think, do
take to the scene of a crime so as soon as something is found it can be put in
that bag, if for no other reason than to prevent the sort of allegation being
made that has been made in this case.' "
39. We turn to the disciplinary finding. The officer was found guilty in
December 1997 on a charge relating to a search carried out by him in 1997, that
is years after the events with which this case is concerned. The evidence
against him was that her had, in effect, "misappropriated" two or three "skunk
cannabis heads", said by him to be required for training purposes. He was
required to resign. Mr Garrett makes the point that at all times Dc Robatham
was accompanied by others, including, when he returned, a civilian photographer
and that tamper proof exhibit bags were used by the police. Having had the
advantage of a thorough analysis of the case we take the view that this finding
does not undermine the safety of the conviction.
40. The respondent produced disciplinary material for other officers. That
material also does not undermine the safety of the conviction.
41. In Ground D the appellant sought to rely on a statement made by a Mr Tariq
Shafi to the CCRC. The CCRC took the view that no "new evidence relevant to
the safety of Mr Jamil's conviction arises" from it. We agree.
42. In Ground D counsel made two small points about the summing-up. We see no
merit in either.
43. In these circumstances this appeal is dismissed. We add that we are
grateful to both counsel for the help which they have given to the Court and,
in particular, to Mr Garrett for his careful analysis of the material known to
the defence at the time of the trial in 1988.
44. We wish to add a few words about cases in which fresh evidence of the kind
contained in the report of 22 June 1988 is uncovered. It should always be
considered within the actual context of the case and bearing in mind the
material available to the defence at the time, the instructions given by the
defendant and the manner in which the defence conducted the trial. To put it
simply: "Having regard to these matters, would the fresh evidence have been
used by the defence?" If the answer to that question is in the negative, then
it is very unlikely that the discovery of the fresh evidence will render the
conviction unsafe.
© 2001 Crown Copyright
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