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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Iszczylowicz, R. v [2025] EWCA Crim 219 (18 February 2025) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/219.html Cite as: [2025] EWCA Crim 219

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IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT CANTERBURY
(HIS HONOUR JUDGE WEEKES) [T20230032]

		Royal Courts of Justice London WC2A 2LL
		18 February 2025

LORD JUSTICE DINGEMANS:

Introduction

1. The applicant renews his application for an extension of time of 69 days in which to apply for leave to appeal against conviction, following refusal by the single judge.
2. On 19 October 2023, following a trial in the Crown Court at Canterbury before His Honour Judge Weekes and a jury, the applicant (then aged 28) was convicted of one offence of fraudulent evasion of a prohibition, contrary to section 170 of the Customs and Excise Management Act 1979, by importing 25 kilograms of heroin (diamorphine) into the United Kingdom. He was sentenced to 11 years and six months' imprisonment.
3. The applicant said that he had no knowledge of the drugs which were found in the cab of his lorry which was stopped at Dover. His proposed grounds of appeal relate to the use made of photographs at trial taken after the drugs were located, which suggested that the drugs would have been obvious to him as the driver; the fact that his lorry had been checked in France; the fact that he had no links with organised crime groups; evidence of his knowledge of the presence of the drugs was said to be insufficient; there were complaints about his legal representatives; and he complains that the judge at the plea and trial preparation hearing was biased against him. That judge was not the trial judge.

Factual background

4. In the early hours of 22 April 2023 a Polish registered Mercedes heavy goods vehicle pulling a trailer arrived via ferry at Dover. The vehicle was being driven by the applicant who was the only occupant.
5. The lorry was stopped by Customs officials at the Dover Docks after going through a freight scanner shortly before 3.30 am. The applicant informed Customs officials that he had loaded in Germany and that the load was bread. He said that he was to make one delivery in England, and that he worked for Bro Trans, which he described as a medium sized firm with approximately 20 trucks. He confirmed that he understood that there are items that are prohibited from being imported into the United Kingdom such as controlled drugs or weapons.
6. Border Force Officer Robin Harper entered the cab at 3.35 am to conduct an examination. During the examination he lowered the top bunk from the passenger's side of the cab and saw a yellow cool bag above the passenger seat on the top bunk. He saw four packages with a picture of Hellboy on them; each package contained two blocks. He cut a hole in one of the blocks and saw brown powder.
7. At 3.40 am Officer Harper informed Officer Crozier that he had found a quantity of suspected controlled drugs. The applicant was arrested and the vehicle was moved to a secure examination bay. Further searches were carried out and were set out as agreed facts before the jury.
8. In September 2023, Officer Harper was asked at the request of the defence where the black holdall had been situated when he discovered it and whether there were other objects in front of it, and if it was moved forward to the position seen in the photographs. The officer said that in his original statement he had said that the black holdall was situated on the top bunk, but that he could not recall if there was anything in front of it, or its exact location.
9. 25 packages were seized: ten from the black holdall; four from the yellow cool bag; and 11 from the lining of the bulkhead of the lorry. One package was submitted for scientific testing. It was found to contain effectively a kilo of heroin at 42 per cent purity. The package contained two tape wrapped blocks and was representative of a kilo. The 24 remaining packages were similar in size, shape and appearance.
10. A drug expert witness set out the value of the drugs. 25 kilos would be worth £550,000 at wholesale value and the potential value if the heroin were to be further divided before sale on the streets would be about £2.5 million.
11. When he was interviewed under caution, the applicant had a solicitor and an interpreter present. He answered questions denying any knowledge of the drugs found.

No arguable grounds of appeal

12. So far as his proposed grounds are concerned, as to the photographs, the jury was told that Officer Harper said that he could not recall the exact location of the bag on the top of the bunk, or whether there was anything in front of it. It was for the jury to decide whether, as the applicant claimed, there was no way in which he would have known about the presence of the bags and drugs. At page 8 of his summing up, the judge told the jury not to be beguiled by the fact that the photograph of the top bunk was front and centre. He asked the jury to consider whether it would have been obvious to the applicant when he was in the lorry and driving.
13. So far as the checks in France are concerned, counsel and solicitors acting on the applicant's instructions, following a waiver of legal professional privilege, reported that nothing was said about a search in France. There was no evidence of a search in France. Further, it is apparent that not every search will always discover what is located in a lorry.
14. So far as the applicant's assertion that he had no links with organised crime groups, as the single judge pointed out, if the prosecution had made the jury sure that the applicant had connections with the drugs, then it was a short step to infer that there was something behind him in terms of the organisation of the importation.
15. So far as the applicant's complaint that there was no evidence that he had possession of the drugs, the finding of the drugs in the cab where he had been the driver was evidence on which a jury could be sure that he had knowledge of the relevant materials.
16. So far as his complaints about his legal representatives are concerned, those were answered by the legal representatives following the waiver of legal professional privilege. It appears that at the time of the trial, the applicant was happy with his representation. Indeed, it is apparent that important points were made on his behalf: for example, that he had co-operated with the Border Officers; he had given the PIN to his phone; that the drugs were well hidden; and that he did not appear to be concerned when he was stopped, suggesting that he was an innocent dupe. There is nothing to suggest that his representation was poor.
17. So far as the judge at the plea and trial preparation hearing being biased is concerned, it appears that this allegation was made because the judge asked whether the applicant wished to maintain his not guilty plea. That did not show any bias and it was a proper question for the judge at the plea and trial preparation hearing to ask.
18. We have also considered and had the benefit of reading all of the applicant's communications sent through the court. He identified that his main problem was that he trusted the National Crime Agency and his defence team to do their jobs properly. He complained that the foreman had his hands in his pockets when the guilty verdict was delivered. Further he told a story about two robbers who put a body in a wardrobe where an innocent householder had left the house unlocked. He complained that there was manipulated evidence, a neglect of duties and a poor investigation.
19. It is right that convictions can be unsafe, and this court has had the duty in the past to set aside such convictions. We are, however, unable to find any grounds of appeal with an arguable basis for showing that this conviction was unsafe.
20. In the circumstances we refuse the extension of time and we refuse the application for leave to appeal against conviction.
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