All England Reporter/2004/April/R v Jisl and others –  All ER (D) 31 (Apr)
 All ER (D) 31 (Apr)
R v Jisl and others
 EWCA Crim 696
Court of Appeal, Criminal Division
¬†Judge LJ, Elias and Stanley Burnton JJ
¬†1 April 2004
Criminal evidence and procedure – Evidence – Admissibility – Cross-examination – Direction to jury – Case management – Judicial control of timetable – Fairness of trial.
Customs and Excise officers conducted a surveillance operation and received information from informers and details of meetings and telephone records which led to the defendants’ arrests.¬† In addition, a quantity of money was found at the second defendant’s address containing traces of drugs.
The defendants were charged with being knowingly concerned with the fraudulent evasion of the prohibition on the importation of goods, consisting of 139 packages of diamorphine with a street value in excess of ¬£7m.¬† The third defendant pleaded guilty on rearraignment.¬† The first and second defendants denied the offence.¬† The second defendant contended that he had been owed money and that the debtor was the one involved with the drugs.¬† At trial, the judge rejected an application to have a witness statement read, pursuant to s 23 and 26 of the Criminal Justice Act 1988.¬† The second defendant was cross-examined for a total of 40 hours during part of ten days.¬† At the conclusion of the evidence, the judge directed the jury over a period of five days in the context of a trial lasting 70 days.¬† The first and second defendants were convicted and appealed against conviction.
The first and second defendants contended, inter alia, that the judge had erred in refusing to permit the witness statement evidence to be read, and that the judge’s directions had been too long, delivered too rapidly and at times inaudibly, and had failed adequately to summarise the defence.¬† The second defendant also contended, inter alia, that the prosecution’s cross-examination of him was onerous and unfair.
The appeals would be dismissed.
The first and second defendant’s convictions were safe in the circumstances.
Some of the second defendant’s criticisms of his cross-examination were justified but individually and cumulatively in their context they had not affected the fairness of the trial.¬† Moreover, there was no basis for interfering with the judge’s discretion not to permit the witness statement to be read.¬† Furthermore, overall the judge’s directions were sufficient in the circumstances.¬† Accordingly, the convictions would be upheld.
The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant.¬† It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or defendants themselves think appropriate.¬† Resources are limited.¬† Time itself is a resource.¬† Active, hands on, case management both pre-trial and throughout the trial itself, is now regarded as an essential part of a judge’s duty.¬† The profession must understand that this has become and will remain part of the normal trial process, and that cases must be prepared and conducted accordingly.
R v Chabaan  All ER (D) 355 (Apr) considered.
Philip Singer QC and Mark Rainsford (assigned by the Registrar of Criminal Appeals) for the first defendant.
Nigel Lithman QC and Ramiz Gursoy (instructed by Sears Blok) for the second defendant.
John Nutting QC (assigned by the Registrar of Criminal Appeals) for the third defendant.
Derek Spencer QC and John Dodd (instructed by HM Customs & Excise) for the prosecution.
Sanchia Pereira¬†¬† Barrister.
 EWCA Crim 696
COURT OF APPEAL, CRIMINAL DIVISION
1 APRIL 2004
LORD JUSTICE JUDGE, MR JUSTICE NELSON and MIR JUSTICE MCCOMBE
JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
LORD JUSTICE JUDGE:
- These are appeals against conviction with leave of the single judge by Gungor Tekin and Jan Jisl, together with an appeal against sentence by Yucel Konakli, and a renewed application by Tekin for leave to appeal against sentence.
- After a trial which lasted nearly seventy working days, and which was itself a re-trial, Tekin and Jisl were convicted on 5th October 2001 at Central Criminal Court before BM Dunn QC and a jury of fraudulent evasion of a prohibition on the importation of goods. Konakli pleaded guilty on re-arraignment. The goods in question were 139 brown packages of diamorphine, with a street value in excess of ¬£7 million. An additional defendant, Mustapha Mus, was acquitted.
- A few days after the trial, Tekin was sentenced to 21 years imprisonment. A Drug Traffic Confiscation Order in the sum of ¬£168,365.20, to be paid within nine months, with two years imprisonment consecutive in default was made. Konakli was sentenced to 15 years imprisonment, and Jisl to 14 years.
- There are numerous grounds of appeal against conviction. We must begin by summarising the essential facts which led to the appellants’ arrests. Although conscious that much of the strength of the Crown’s case derived from the detail of the evidence, we shall do this briefly, focussing on the facts relevant to the issues raised before us in the appeal.
- The interest of HM Customs and Excise in Tekin, and a subsequent surveillance operation, were triggered by information from two sources known to Customs’ Officers, Mr Houston and Mr Goodman, who first heard Tekin’s name on 24th October 1997. On 3rd and 10th November, information was received by HM Customs and Excise from two informants, who were paid ¬£25,000. One informant was Tarpaz. The second was Khan. Khan was later tried and convicted of conspiracy to supply heroin (in connection with a different importation from that with which we are concerned), and two further counts of conspiracy to commit GBH. He was sentenced to a total of 18 years imprisonment. He is currently appealing against conviction. Khan was also charged with and faces trial in relation to two further heroin importations. The trial has been postponed pending his current appeal. We must deal briefly with the suggestion made in argument before us that there had been insufficient disclosure about Khan’s criminal activity and bad character. That suggestion was not made good. In particular, the material disclosed to the defence pre-trial went further than providing details of the conspiracies of which Khan had been convicted and charged. On any view he was a serious criminal, sometimes running with the drug dealing hares, sometimes with the Customs hounds, and sometimes indeed running with both simultaneously. On the evidence available to the jury, they can have been in no doubt about his true character.
- We must next identify a third individual, Mentesh Hassan. He too was believed by Customs and Excise to be a dealer in heroin, and the trial proceeded on the basis that he was indeed a significant drug dealer. The importance to this case of Khan, Tarpaz, and Hassan can now be explained. Tekin’s defence at trial was that Khan and Tarpaz, and Hassan acting in collaboration with them, set him up. They framed him and lured him into the hands of waiting Customs officers, who arrested him in circumstances to be described. In addition, throughout the trial, there was something of an undercurrent, more obvious at times than others, suggesting that Customs officers had acted corruptly, and that they too were closely allied to Hassan and his plot against Tekin.
- Tekin also alleged that for sometime before the events with which we are immediately concerned, Hassan had owed him a great deal of money. This was important to his defence in a number of ways. First, if true, it served to provide an explanation why cash found later at Tekin’s flat was found to be contaminated with heroin. His case was that the cash represented part-payment by Hassan of the debt, and that the heroin which contaminated the cash must have been present when Hassan repaid him. Thus it was Hassan, not he, who was the source of and linked with this contaminated cash. However even after these payments, ¬£120,000 was nevertheless still outstanding at the date of Tekin’s arrest. Therefore, second, this alleged debt purported to provide a motive for Hassan’s involvement in the decision to set up Tekin. If successful, the debt would be expunged, or at any rate any realistic possibility of its repayment would be extinguished.
- The issue was explored by the Crown in cross-examination, in the context of a transaction in April 1997 in which Tekin assisted Hassan by helping him to change over ¬£150,000 in pounds sterling into German marks, without apparently seeking or insisting on the repayment of the debt. The fact of the transaction was not in dispute. The Crown suggested that the incident served to undermine the assertion that Hassan was indebted to Tekin, and along with it, Tekin’s explanation for the contaminated cash. The Crown also contended that this incident was a money laundering exercise, to be set against Tekin’s good character, based on the absence of previous convictions, and positive and glowing testimonials to him which were put before the jury.
- The defence adduced the evidence to show a surveillance operation mounted on Tekin which revealed three probable meetings between him and Hassan. On 6th December 1997, at 5.36 pm, Tekin was seen in animated conversation with Hassan, who was sitting in the front passenger seat passenger in a Renault motor car. A little south of the parked Renault car was another car, registered in Hassan’s name. The engine was running, and another man was sitting on the boot of the car, apparently acting as a look-out. At 6.30 this car, driven by the look-out man, drove past the Renault which, at about the same time, moved away and stopped in the middle of the road at a junction where the second car had now parked. Its front passenger door was open. The driver was lying down in the reclined front passenger seat. Hassan walked away from the Renault being driven by Tekin to the second car, got into the driver’s seat and then drove away. Tekin then drove away in the Renault.
- On 21st December, Tekin was again seen walking in the same area as before, near to the same Renault parked car, and was holding a mobile telephone conversation, when he was approached by the same second car, with the driver using a mobile phone. Tekin entered the second car. It drove away for a few yards before stopping, and after that it drove away.
- On 23rd December, the same second car was parked in Stoke Newington, when the same Renault stopped and parked nearby. The inference was that this was another meeting between Tekin and Hassan.
- The importance attached at trial to the details of these incidents is not entirely clear to us. They established that there was a connection between Hassan and Tekin. Indeed, that fact was not disputed. The issue for the jury was, taking all the evidence into account, whether these meetings represented communications between drug dealers planning and discussing their business, or meetings which enabled Hassan to put together the details of his plot to incriminate Tekin in a drugs importation in which in truth he was not involved. Analysis of the details of their meetings did not assist in the resolution of that critical issue.
- The Crown also established a close connection between Tekin and Konakli prior to and including 27th and 28th December. For the purposes of this appeal, we need not deal with the matter in detail. It was however known to the jury that Konakli had pleaded guilty to the conspiracy alleged against Tekin and Jisl. Tekin and Konakli met on 8th, 18th, 23rd, and at 4.33 pm on 27th December. They were together at around midnight on 27th/28th December. There were also numerous telephone communications between Tekin, Konakli and others, including in particular on 5th, 23rd, 24th, 25th, 27th and indeed 28th December. An association was also observed between Tekin and Mus, between whom there were extensive telephone communications. At trial a mass of telephone calls, sometimes by mobile phones, sometimes by land line, sometimes to mobile phones and sometimes to public call boxes between different numbers in England, and between England and Turkey were analysed. Again we need not set out the details.
- Another number, in Turkey, with specific importance to the appeal, was referred to throughout the trial as 339. This telephone belonged to Faruk Zafer Aktolun. The Crown’s case was that the telephone calls to this number from Tekin’s mobile phone were connected with drug dealing and drug transactions. Tekin’s case was that the telephone calls to 339, although always using a mobile phone, and never a land line phone from his home, save on one occasion when a fax line was used, was that the telephone calls to Turkey were connected with a legitimate business transaction involving the importation of a Hummer jeep from the United States into Turkey for delivery to Aktolun. Aktolun made a statement in October 1998. He was not called as a witness on Tekin’s behalf, and the judge refused an application for his statement to be admitted under ss 23 and 26 of the Criminal Justice Act 1988. This decision provides one of the grounds of appeal.
- We must now go to a village to the north of Prague in the Czech Republic. On the evening of 26th December, the appellant Jisl, a lorry driver, set out on a journey across Europe, driving a hired Ford Transit minibus. He was accompanied by his wife and their two children, and another woman and her son. The avowed purpose of the journey was to drive to London, there to pick up a number of business men from Czechoslovakia, and bring them back home. In fact, the mini-bus was loaded with the heroin which formed the subject matter of this indictment. The mini-bus arrived in Ostend in the afternoon of 27th December, came across the channel to Ramsgate, and drove to the Medway Services arriving at between 8 and 10 pm, at the Travel Lodge Motel (Travel Lodge). Although this was not his intended destination, at this point in the journey Jisl stopped. He was, and no doubt for good reason, exhausted. So the party booked in for the night in two three-bedded rooms. One of these was room 10. Jisl indicated that he wanted to make some telephone calls. After he had telephoned the Czech Republic Jisl asked for and was given the motel telephone number by Mrs Pearson. Later on she received several calls from Mus, but, as there was no facility for transferring telephone calls made to Jisl directly to his room, she spoke directly to Jisl to tell him that a telephone call has been received. One call was received from Tekin’s mobile telephone at 11.11 pm. Jisl was later to say that he had been woken by a woman talking rapidly in English, and that he heard the word “London”, and put the phone down and went to sleep. From the motel itself, Jisl made two telephone calls to the Czech Republic, and he later made a call from the call box in the nearby motorway services shop.
- Shortly after the telephone calls from Mus and Tekin, at about midnight, a Renault “Laguna” motor car, hired by Tekin with a requirement for a vehicle with a large boot, and driven by him, with Konakli and Mus as passengers arrived at the same Travel Lodge. They were some way from home. Konakli lived in Tottenham and Mus at Chalk Farm, and Tekin himself in a flat which he owned in Park West Mansions in the vicinity of Marble Arch and Paddington. During 27th December, as Jisl was crossing the Continent, and then the Channel, Tekin left his flat at 2.35 pm. He was seen in the Renault car with Konakli at 4.33 pm in Wood Green. At 6.05 pm he was alone in his car at Park West. At 8.10 pm he was in North London accompanied by two women. They dined in Sloane Square. By 11 pm Tekin left the Sloane Square area, and drove to and eventually arrived at the Travel Lodge, accompanied by Konakli and Mus. This had not been their intended destination. They had originally thought they were going to a hotel some fifteen miles away, the Toll Gate on Watling Street. It was a site attended by Wayne Welsh, another Customs and Excise official who also went on to the Medway services. It was a significant feature of the Crown’s case that these two vehicles, the mini-bus driven by Jisl and the Laguna driven by Tekin, both ended up at the place which was not the intended destination of either. These re-arrangements of the itinerary of the Renault were organised by telephone calls, Jisl phoning Czechoslovakia, and Tekin being in repeated telephone communication with Aktolun in Turkey.
- The precise movements of the Renault at around midnight on 27th/28th December were strongly in dispute, and there was indeed some inconsistency between Customs officers who were keeping surveillance in rather difficult conditions. There was an issue about the accuracy of the observation of two officers in relation to the number of different men who they believed they had seen, and the investigation of these issues also occupied a considerable time during the trial. Nevertheless, it was and remains undisputed that at about midnight Tekin went to Jisl’s room at the Travel Lodge. There was a brief exchange between these two complete strangers at the door of the room. Each gave a different account of the terms of the discussion. Whatever may have been said, shortly afterwards, notwithstanding the exhaustion that made him stop at the Travel Lodge, Jisl went to the car park. He there met Konakli, another complete stranger to him, who had left Tekin’s Renault, and then accompanied him to the mini-bus and drove it in the direction of London via the Blackwall Tunnel. Jisl left his own passengers, including his wife and children behind at the Motel, without apparently giving then any explanation of what he was doing, or of his intended movements. Tekin and Mus, in the Renault, left the scene shortly afterwards, and also drove towards London, taking a different route.
- According to a schedule prepared by the defence Tekin’s mobile telephone at around midnight on 27th-28th December was extremely active. On 27th December, at 22.52 he used his mobile phone to telephone Aktolun. That call would have been received in Turkey at eight minutes to one in the morning. It was the fourth call to Aktolun using the same mobile on that day. Tekin again telephoned Aktolun at two minutes past midnight, local time in England, and again at twenty-eight minutes past midnight, and again five minutes after that. Shortly afterwards, at just after quarter to one, he telephoned Konakli, and this was followed by another call a couple of minutes later. Tekin telephoned Mus shortly before 01.00, and Konakli again at few seconds after five minutes to one. He then telephoned Mus. Another call was made to Aktolun at three minutes past one, followed shortly afterwards by two telephone calls to Konakli, and then further telephone calls at 01.29, 01.41 and 01.44 to Aktolun. None of these telephone calls had, according to Tekin, anything whatever to do with the importation of drugs. We also know that a number of calls by Tekin’s mobile were made to public phone boxes in the North of England, to Leeds and Harrogate. These were not answered. The Crown suggested that in the context of Tekin’s journey to the south coast, and Jisl’s journey across the Continent, these telephone calls, by their number, and brevity, the times at which they were made, led to a very strong inference that Tekin was directing this operation.
- To the north of the Blackwall Tunnel Jisl left the main road, apparently in error. Almost immediately at 2.05 am, Customs officers drove in front of his mini-bus as he was reversing it, and arrested him. Konakli ran away, but was arrested later that morning at 6.18 am. Tekin and Mus were arrested at 2.20 am in King’s Cross.
- The mini-bus driven by Jisl was searched. It had been modified, so as to produce a false floor. One hundred and thirty-nine brown packages containing a total of 68.58 kg of powder were found in a poorly concealed, specially constructed compartment. These facts, too, were not disputed. On forensic analysis, this powder amounted to diamorphine with a street value, at ¬£75 per gramme, of ¬£7,279,538.
- A search of Tekin’s home revealed some torn pieces of paper in a waste paper bin which, when reconstituted, made up a page torn from a Filofax on which the name of the Tollgate Hotel as well as the number of Jisl’s room at the Travel Lodge, were written. One of the pieces of equipment found in it was a money counting machine. The search also produced ¬£4,900 in cash in a security box in a wardrobe in the bedroom, ¬£29,940 in cash in a shoe box, US$5,000 in a briefcase, and a number of bank money wrappers. The cash was analysed, and a significantly high proportion of diamorphine contamination was found on all but one of the notes. Perhaps hardly surprisingly, the chemist called by the Crown was unable to say how many hands the notes had or must have passed through. Further investigations also showed that Tekin had bought, for cash, in December, on several occasions, two watches. He paid ¬£8,500 and ¬£10,500 in cash for each as part of what was said to be a laundering of the proceeds of drug dealing.
- A search of Mus’ home revealed a document in Tekin’s handwriting. It referred to the Tollgate Hotel and the Travel Lodge. The writing also included the Travel Lodge address and telephone number and the room number of Jisl’s room at the hotel.
- On arrest Tekin was co-operative and polite. During interview he gave answers which were not consistent with the evidence he was to give at trial. He denied any knowledge of drug importation. Jisl, too, was interviewed. He gave lying answers, which, among; other things, falsely explained that he had come to England for a holiday. He also denied any knowledge of drug importation.
- Each of the appellants elected to give evidence, offering to provide an innocent explanation to counter what, as the brief summary so far demonstrates, was an extremely powerful case for the Crown. We have already described Tekin’s case, that in essence, he was an innocent dupe, the victim of a set-up. Jisl made the same claim. He must have been set up in Czechoslovakia. He thought that his purpose in driving to London was to collect three or four passengers and return them to the Czech Republic on 31st December. Like Tekin, he had not the slightest idea that he was involved in a drug dealing transaction, or that the mini-bus he drove into England, and later drove from the motel into London, was carrying drugs.
- The evidence given by each appellant was very lengthy indeed. Nevertheless, to understand the issues raised in the appeal it is not necessary for it to be summarised further. As the verdicts demonstrate, the jury rejected it. We express ourselves in that way because the directions by the judge in his summing up made it absolutely clear that if the jury concluded that it was possible that either appellant may have been an innocent dupe, he, or they, must be acquitted. Accordingly we can immediately address the grounds of appeal.
The cross-examination of Tekin
The general complaint
- The broad complaint made on Tekin’s behalf is that his cross-examination was onerous and unfair. That was the result of its sheer length, which was disproportionate to the length of his evidence in chief.
- Tekin’s evidence as a whole was lengthy in the extreme. Part of the problem stemmed from his own production, unexpectedly and without warning at the outset of his evidence, of a four-hundred page bundle of documents. He was absolutely determined to give his own evidence in detail, at whatever length he wished, sometimes indeed ignoring his own counsel. Another problem was that he needed the services of an interpreter throughout, which added greatly to the time taken by his evidence, and was further complicated by the fact that he had a sufficient understanding of English to be able from time to time both to follow the question and to answer it in English. Yet another factor was from time to time the cross-examination was interrupted to obtain legal rulings from the judge. Even allowing for all those considerations, and for breaks, morning and afternoon, needed by the interpreters, and that from time to time different judicial business meant that the judge was unable to sit at the precise time when the case was listed, it nevertheless is surprising that Tekin’s evidence-in-chief lasted for something like four days and that he was cross-examined during part of ten days for an overall period calculated at 40 hours.
- We are not immediately concerned with case management. At this stage the question is not whether the evidence given by Tekin took longer than we would have anticipated, but whether the length and terms of the cross-examination rendered the conviction unsafe. The immediate point is that no complaint was made at trial that the cross-examination was or was becoming oppressive or over-burdensome to the appellant. Leading counsel at trial objected from time to time to various aspects of the cross-examination, but not to this. No submission was made at natural intervals in the hearing to indicate that counsel was becoming concerned at some perceived inability in the defendant to do justice to his own case.
- That noted, we have read the very lengthy transcripts. We must summarise our impressions. The transcripts reveal a defendant well in command of the situation, a complete master of the detail of the case, including considerable documentary evidence, making such points as he wishes with force and vigour, not unprepared to confront counsel cross-examining him, and well able to give his own answers at the length and in the terms he wished. Sir Derek Spencer QC, on behalf of the Crown, cross-examining him, was, we must add, no less robust and powerful, and neither the witness nor counsel was minded to give way, or to allow himself to be overborne.
- We acknowledge the difficulty of doing justice to this impression by isolated citations from the transcript, but something of the flavour of this evidence can be understood from the examples which follow.
- On 24th July Tekin was being cross-examined about his movements, and why he needed to see Mr Konakli on 27th December, and indeed why he had stopped en route at different places to use public telephone boxes. At page 28 we see an intervention by the interpreter.
“Am I going to be allowed to translate, please, this last question? There seems to be some kind of cross-speaking between them.
The witness, direct: Yes, Sir Derek.
The interpreter: I am sorry Sir Derek; you were saying that Mr Sapsford [Tekin’s leading counsel at trial] after cross-examining the officers, he did … what?
Q. He was suggesting that they were wrong in their evidence that you have used a phone box in Albert Road and another one in Seven Sisters Road.
A. No. I remember, because the way you put your question now – you can correct me, if I am wrong, but you were saying -correct me if I am wrong,, but I think what Mr Sapsford was objecting to was that I was being placed in two different places at the same time. This is why I am laughing – because I did remember exactly where I was. I laughed, also, because it is impossibility for me to be., in the same place, the same time, unless I have some kind of magical vehicle.”
- The transcript continues for just under half a page and the exchange resumed:
“A I cannot remember exactly. I cannot remember exactly where Albert Road is. However, I will say again that there is almost no objection to any of your officers’ observations. Does that clear it up for you?
Judge Dunn: Would you let your translator finish the sentence before you go on.
The witness, direct: Yes, my Lord; sorry.
A. However I would – the only time I would object is if one of your officers stands here and tells me that black is white, then I would object to that.
Sir Derek Spencer: Why did you not mention the second call when you were in the first box?
A. Which one are you talking about? As I said to you, I do not remember the Albert Road. But I am saying to you that I may have used it. I do not remember.
Q. I thought you were saying that you did remember it and you used it, and you accepted that the officers were accurate. What are you saying?
A. What I am saying is that I remember the events, and I am saying so to you that I do not object to any of your officers saying. You are being a little bit double-standard and a bit two-faced, at the moment, saying that because I accept that, you know, I have to be seen to – I have to accept that I made that phone call, and what was it about? You are being a bit pedantic. It’s like you were trying to set up some kind of trap for me. I don’t know.”
- Later after some further pages of the transcript, still dealing with the telephone call just after eleven o’clock on 27th December to Mr Konakli, we come across this exchange.
“A. As I stated earlier, nobody has remembered this number making this call; and, to this day, I still don’t remember. And it’s nothing technical. Because it doesn’t make sense technically, either – that I have the number for the motel, why should I phone Directory Enquiries?
Q. Because your story is invented. That is why.
A. I am sorry, Sir Derek, but you are saying, you are telling me that I am making stories up, where, in reality, as well as to do with numbers. These numbers are a reality. It doesn’t make sense what you are saying. You may insist that what I am saying to you, what the conversations are, is a story that I invented; but you can’t tell me that I have invented these. If you ask me, it’s you who has got a story. You are making it up.
Q. Just go back to page 17 to 22.39. Mus had already rung 192 once that evening, at 22.39, had he not?
A. I’m not going to talk about this part. I’m not getting into this. I’m not going to get into this number where you are saying that Mus has phoned up Directory Enquiries. I’m not getting into that matter. Nothing to do with me. But what I am suggesting is that the other 192 that you have fitted in there is incorrect. That’s what I am objecting to.
When I look at that list I feel like I am stupid; but I know that I am not stupid. I ask you, what reason – what sensible person, while you have the number, you have the address, would phone some kind of other authority or someone that can help you find ways? We have the number with us. You know fully well that, since the beginning of 1998, when we were served with these documents, we always objected to these and we always will.”
- Virtually the last exchange on 25th July is illuminating and typical, and it followed a passage of cross-examination by Sir Derek which is strongly criticised, in the course of which he asserted that the defendant had told “an incredible whopping lie” and that he was “wriggling out of it”. Towards the very end of that day the cross-examination was being directed to pieces of paper found by Customs officers in the waste paper basket at Tekin’s home.
“A. I wonder where you are arriving, this question? I would like to find out where you are arriving –
Mr Sapsford: He has not suggested that, in examination in chief If there is a matter which my learned friend wishes to raise which attaches on that, then we will deal with it in the usual way.
Judge Dunn: You are not suggesting
Sir Derek Spencer: My Lord, if people make statements about what the evidence is and what the witness says, there is no point in me asking questions about it, with respect.
(To the witness) Are you saying that Customs have done anything wrong to the bits of paper that were found in your waste bin?
A. If we are going to start any arguments regarding this, the last three and a half years, I have been giving instructions to my solicitors. We have notes too – regarding this matter in all these (inaudible) and I have certain proofs of my own. I am telling you, here and now, that on the advice of my solicitors –
Q. You need not –
A. I choose –
Q. Will you stop? You need not tell us anything your solicitor said, unless you wish to do so. Anything that passed between you and them about this case is confidential. You do not have to tell us – unless you wish to.
A. I am telling you something that I am happy to reveal to you now.
A. My barristers know the situation. My solicitor knows the situation.
Mr Sapsford: My Lord, may I raise a matter with your Lordship in the absence of the jury, please?”
- The judge asked the members of the jury to leave court and, as they were doing so, the appellant continued:
“A. I am the person who wrote that note and the telephone number and everything. I don’t deny that.”
- After hearing submissions, the jury returned to court for a very short time, when the case was adjourned for the night, and the jury was asked to return at 11.30 the following morning, a late start because administrative matters needed the judge’s attention.
- These paragraphs are illustrative of a number of features of the appellant’s evidence. They reveal something of what was described as a very forceful personality, his determination to give his own answers to the questions, sometimes not answering the questions at all, and his ability to understand some English, but his need for an interpreter. Most important of all, however, we are unable to derive the impression from the transcripts that the witness was cowed, or oppressed, or in any way disabled from doing justice to his own evidence. In other words, the transcript does not reveal anything to us which might suggest that counsel at trial was in any way remiss in failing to intervene to protect his client from unfairness or oppression. Nor did the judge. We therefore reject the broad complaint that the disproportionate length of the cross-examination undermines the safety of this conviction.
- Apart from the broad complaint, a number of specific criticisms were directed on Tekin’s behalf at Sir Derek’s cross-examination. Mr Lithman QC, who did not appear at trial, highlighted a number of different examples, which we have examined.
- The first criticism was that in some passages the questioning was inappropriate. Thus on 20th July Tekin was asked whether his solicitor had been to see Konakli, and whether Tekin wanted Konakli to give evidence on his behalf Objection was reasonably taken to that line of questioning, and unhappily Sir Derek returned to it on the following day, introducing what he said
“Q. I asked you the other day if your solicitors had been to see Mr Konakli.”
When leading counsel stood up Sir Derek immediately withdrew his statement, in clear terms more than once. lie did not return to it. Later in the cross-examination we cannot help noticing that Tekin himself very strongly asserted that he wanted Konakli to: be called as a witness. Given that Konakli’s evidence at the first trial was, to put it neutrally, inconsistent with Tekin’s defence, we well understand the forensic reasons why Konakli was not called. However at the time when the questions were first asked by Sir Derek, the possibility that Konakli might be called was still open. Sir Derek wanted to know about the contact between Konakli and Tekin while they were in custody in the same prison, in order to lay the ground for further questioning of Konakli if he gave evidence. If we may say so, we understand the thought process, but the questions to which objection was, and is still taken, were not formulated in this way. However, when we assess the possible adverse impact of these questions in context, in our judgment they are trivial.
- Mr Lithman then complained about the way in which Tekin was cross-examined about every telephone call made to the 339 telephone number. We can see nothing improper in these questions or this line of questioning. The telephone calls were absolutely crucial to the Crown’s case about the organisation which led to the arrival of the heroin in England, and the meeting which took place at the Travel Lodge between Jisl and Tekin, and culminated in two vehicles leaving the motel with Konakli travelling in Jisl’s vehicle rather than Tekin’s. The 339 telephone number was fundamental to Tekin’s defence that the business man in Turkey, Aktolun, whose number it was, was involved with him in an entirely honest transaction, quite unconnected with drugs. The sheer volume of telephone calls, their timings and their lengths, might reasonably have demonstrated to the jury that whether or not there may have been an honest business transaction between Tekin and Aktolun, it extended far beyond that. Leaving to one side for the moment, the judge’s decision that the statement by Aktolun could not be put before the jury, we accept that different counsel might have used this material in cross-examination in a different way, but we have no doubt that Sir Derek was entitled to use it in the detail in which it was used. No injustice to the defendant could have followed from justified deployment of this material.
- Mr Lithman suggested that on other occasions, Sir Derek produced evidence at the last moment. His submission was particularly concerned with questioning about the use, or lack of use, or selective use of a land line belonging to Mr Tekin, and the destination of the last telephone numbers dialled by Tekin by his mobile using number 466 on the night of 27th and 28th December. In context, the issue of the land line is unimportant, and the nature of the submission advanced by Mr Lithman can be more readily understood in relation to the use of 466. It needs careful thought because it is normally unfair to a defendant for the Prosecution to spring incriminating evidence against him, out of the blue, for the first time in cross-examination. However everything turns on the circumstances. The starting point here is that Tekin was not being asked to deal with anything other than the use of his own telephones and fax numbers at critical times. In relation to the use of his 466 mobile phone the Crown had produced evidence as long ago as 1998 that although no chargeable connection had taken place, the 466 mobile had been used to call several telephone numbers at the critical period on the night of 27th/28th December. The Crown had hunted down not merely the general destination of these calls, which was readily revealed by the first few digits as Leeds and Harrogate, but the precise places which had been telephoned. It was information either side could have sought. During cross-examination, Tekin in effect asked, indeed on one view challenged Sir Derek to put the destination of these telephone calls to him. So he did. No-one suggested then, and no-one suggested to us, that the information he deployed was mistaken. We think perhaps that it would have been more appropriate for Sir Derek to have informed counsel for Tekin of the results of the investigation into the location of the phone boxes which had been telephoned, before putting them to the witness, so that any relevant objection might then have been taken. However we do not, on reflection, see that any relevant objection, other than a delay to enable the defence to check the accuracy of Sir Derek’s information, would have been successful. In the circumstances we do not believe that anything was unfairly or improperly sprung on Tekin by this part of the cross-examination.
- Coming to Mr Lithman’s next area of criticism, we agree that there was an unfortunate passage in cross-examination beginning on 24th July, arising from Tekin’s evidence about a telephone number, which he thought, and twice said, belonged to Konakli’s wife, and a clear inconsistency with that answer and a document produced in error by junior counsel for Tekin, attributing the number to somebody called Smith. We quite understand why the line of cross-examination, based as it was on a document prepared by the defence, was pursued. Nevertheless we are concerned at the tone which eventually entered the exchanges when Tekin tried to explain the error, that the man identified as Smith by his junior counsel was in fact someone called Hayri. Sir Derek asked:
“Q. Is the truth that you realised overnight that you told an incredible whopping lie, and now you are wriggling out of it?”
The problem was then compounded by the interpreter interrupting, in effect asking for the question to be repeated, which it was.
- The interpreter was unclear whether Sir Derek had said “overnight” or “on that night”, and intervened again. The effect was that for the third time Sir Derek suggested that Tekin had told “an incredible whopping lie” and that he, Tekin, was “trying to wriggle out of it”.
- Tekin’s response was clear.
“A. No. No. Not at all. I don’t know how you can say that, when I am pointing it out to you nice and calmly, and show you that number and the name. OK. Let me just say that I stress again that I was not asked any questions in the last three and a half years about this number. My memory, yes, is not perfect, and I have made a mistake regarding this number.”
- Our concern can be described very briefly. This style of cross-examination, would once have been regarded as perfectly normal, and entirely acceptable, is less common than it once was. Precisely the same point could have been put to the witness in less strong language. Even nowadays there may be occasions when such strong language is appropriate, if used sparingly, but here, for the reasons we have explained it was in effect repeated three times in very short succession. So far as it goes, the criticism therefore is not without force, but we must add, it does not go very far.
- Further complaint is made about the cross-examination of Tekin about the circumstances in which he came to help Hassan to exchange over ¬£150,000 from sterling into Deutschmarks. This occurred in April 1997. It was therefore outside the dates of the conspiracy alleged. It was suggested that Tekin had no reason to anticipate questions on this issue, and he was, in effect, ambushed.
- There was no dispute about the essential facts, which have already been narrated. The details of the transaction emerged during drug trafficking proceedings which took place after the first trial. Tekin himself wrote asserting that he had indeed changed this money for Hassan. The Crown contended that the evidence was admissible on two separate grounds. First, Tekin himself asserted that he was an individual of the highest standard and reputation. This went far beyond an assertion that tie had no previous convictions, but involved him calling a substantial number of witnesses to give evidence of his positive good character. The impression likely to be conveyed by such evidence needed, reasonably, to be countered by drawing attention to his activities for and on behalf of Hassan, who its the jury knew, and Tekin himself was contending, was a dealer in heroin. The evidence also went to undermine the defence that he was the victim of a plot organised by Hassan to implicate him in major crime so as to avoid repayment of the very substantial debt Tekin claimed was owing to him. If that was true, it was extraordinary that when Tekin was actually in possession of enough money belonging to Hassan with which the debt could be repaid, he said and did nothing to recover it, but simply changed the currency at Hassan’s request.
- We can see no valid criticism of the cross-examination. It was relevant material which went to Tekin’s credit. There was no improper ambush.
- We must next deal with the cross-examination of Tekin based on the Mus interview. Mus was interviewed beginning on 28th and continuing into 29th December. The record of the interview was reduced to writing. It is a long document covering just over sixty pages. On analysis, the statement could not be construed as an admission by Mus of involvement in the conspiracy, nor did it implicate Tekin in it. It did however include his answers to a number of questions of some importance, including Mus’ activities in relation to the telephone calls to the Travel Lodge, and Tekin’s involvement in the directions for those calls.
- We have studied the transcript of Tekin’s cross-examination. It is clear that when he was questioned, express reference was made to the record of interview, and that simultaneously, the record of the interview was before him, and the jury. The area of criticism is exemplified by this question from Sir Derek:
“So you are disagreeing with the account given by Mus which I have just read out to you, are you?”
Undoubtedly, this form of cross-examination contravened the principle that it is impermissible to cross-examine one defendant on the basis of the record of interview or a statement of another defendant. When objection was first taken, the judge’s immediate reaction was to approach the problem as if the cross-examination were confined to the facts. But on further objection, after hearing argument, he decided that the cross-examination should cease and it did so, although Sir Derek would have been prepared to argue that in the particular circumstances which had arisen, the normal rule prohibiting cross-examination in this form did not apply. That therefore was an end of the matter at trial.
- In our judgment there was a contravention of principle. It was brought quickly to an end. The material deployed was not in itself of any great moment in the case against Tekin, and put into the context of the cross-examination as a whole, particularly bearing in mind that the Mus record of interview did not implicate Tekin, this part of the cross-examination did not create any prejudice against Tekin. We should add that when the judge summed the case up to the jury, his directions about the, way in which the records of interview could, and could not be used were clear and accurate.
Conclusion about specific complaints
- We examined all the criticisms of the cross-examination of Tekin, and have separately addressed the important areas of specific criticism. We accept that some, but not all of these criticisms are justified or have force. We have therefore examined them closely to see whether the safety of the conviction is undermined. We have taken the valid criticisms individually, and cumulatively, and put them into context, and analysed their true extent, and their possible importance, and examined whether the fairness of the trial process was undermined. Our conclusion is clear. They do not affect the safety of this conviction.
Applications under ss 23 and 26 of the Criminal Justice Act 1988
- It was argued on behalf of Tekin at trial that a statement made by Faruk Aktolun was admissible and should be admitted under ss 23 and 26 of the 1988 Act. The Crown objected. The judge agreed with the Crown, and exercised his discretion against admitting the statement.
- The statement is dated October 1998. Mr Aktolun identified himself as the owner of phone number 339. He spoke of his knowledge of Tekin as a man of personal integrity and an honest business man. He described the arrangement in May 1997 for Tekin to procure the importation of a Hummer jeep from the United States into Turkey in November 1997, at an appropriate price. When the vehicle did not arrive as anticipated Mr Aktolun said that:
“Towards the end of December 1997, I was very often trying to reach him by telephones. Sometimes I could, sometimes I could not: and this was making me uncomfortable. As I remember, I was asking him to promise delivery by the New Year’s day. In those days I phoned him many times to get an answer, and he called me himself many times to convince me … I could not understand this situation that Tekin is in. There can be no reason for him to resort to doing such a job. I remember talking quite a lot with him during those times when we were trading -i.e. in November and December 1997. These discussions may have happened both during; day and night: because Istanbul is a place where you live your life to the full i.e. 24 hours a day -especially during the weekends.”
- Among other things, quite apart from providing a character reference, this evidence purported to provide, or at any rate contribute to, a wholly innocent explanation for the numerous, sometimes very short, telephone calls made by Tekin to 339 during the critical period of 27th-28th December. No documents were produced by Aktolun to support the details of the business transaction, and the statement itself was not updated or amplified after October 1998. It was, in fact, very short of relevant detail, and if Mr Aktolun had given evidence, he would have been as open to cross-examination on the detail of these telephone communications as Tekin himself Indeed the Crown had opened the case to the jury on the basis that Aktolun was himself a knowing participant in this conspiracy, integral to its operation.
- When the retrial began, the defence expressed an intention to call Mr Aktolun. However on 6th July the solicitors for Tekin sought a “written undertaking” from the solicitors for the Prosecution that “if Mr Aktolun were to come to the UK to give evidence in this trial fie would not be arrested”. The prosecuting authorities took the view that Mr Tekin should have the opportunity to call such witnesses as he was advised to call, and accordingly responded that Aktolun would not be arrested in connection with his conduct relating to the use of the Turkish mobile telephone 339. The issue was raised again on 6th August immediately before the summer break. On 3rd September solicitors in Istanbul wrote to the prosecuting authorities on behalf of Aktolun. that he was:
“… prepared to travel to London to give evidence in the case of Gungor Tekin. However due to the fact that I owe taxes in this country I am prevented to obtain a visa to leave Turkey. In these circumstances I will not be able to give evidence in Gungor Tekin’s trial. I am sorry for not being able to assist any further.”
- The judge was entirely familiar with the requirements of ss 23 and 26 of the 1988 Act, and allowed statements to be admitted on Jisl’s behalf under the statutory provisions. Indeed he described himself as “concerned” throughout the case to allow everyone to get in “as much as they can”.
- In relation to Aktolun’s statement, the judge accepted the pre-requirement to admissibility that it was impracticable to procure Aktolun’s attendance at trial. However, exercising his discretion under s 26, he concluded that the statement ought not to be admitted. In essence he was troubled about the absence of cross-examination in relation to a statement made by a witness, who on the evidence already called before the jury, could reasonably be regarded as a member of the conspiracy to import this load of heroin into the United Kingdom, and which dealt very briefly indeed, and wholly superficially, with a crucial aspect of the evidence, reasonably relied on by the Crown.
- In our judgment these were relevant circumstances, properly to be taken into account in the exercise of the court’s judgment that the interests of justice did not require that the statement “ought to be admitted”. No countervailing considerations have been advanced which suggest that the exercise of the court’s discretion was flawed. It is not enough to assume that the court’s discretion must always be exercised in favour of the admission of a statement on which the defence seeks to rely. We can see no basis for interfering with what in context seems to have been an eminently realistic decision.
- Mr Wayne Welsh was a Customs and Excise official. After the conclusion of Tekin’s evidence, an application was made for his re-call for further cross-examination on behalf of Mus. The purpose was to put questions to him about the investigation of a previous drug importation, and from this platform to suggest that there had been insufficient disclosure of material which would have undermined the Crown’s case about the circumstances in which Customs and Excise officials kept observation on Tekin. By now the Crown had already admitted that “before going to the Medway Service station, Mr Welsh went to the Tollgate Hotel situated on the London-bound A2 with the junction of the A227”. When cross-examined originally, Mr Welsh agreed that instructions had been given to attend the Tollgate Hotel prior to taking or following up observation at Medway Services. This had been the intended destination of Tekin, Konakli and Mus before they went on to link up with Jisl at the Travel Lodge, and, as we have already noted, the Tollgate Hotel appeared on documents found in Tekin’s house when it was searched, and on the parts of documents in his handwriting found in Mus’ home.
- As we understood the submission to us, the purpose of further cross-examination would have been to explore the earlier importation with Mr Welsh, and to raise questions whether Customs and Excise officers had arrived at the Medway Services as a result of following Tekin, or not. Properly pursued, this might have revealed “inconsistencies” in the Crown’s case on this topic.
- The judge refused the application. It was a decision made as part of his overall management and control of the trial, made as the evidence in the case was coming to an end. It related to an. issue, the exploration of which would have been peripheral to the single question for decision by the jury, namely, whether Tekin was a knowing party to the importation and delivery of drugs to London. The admission by the Crown enabled the defence to make any relevant comments to the jury. No basis for interfering with this decision has been demonstrated.
- On 4th July 2001, Mr Goodman gave evidence of his responsibilities as a handler of informants for Customs and Excise. He described his contacts with Tarpaz and Khan, and the developing arrangements with Mr Houston, who had by now already given evidence and been cross-examined. He denied receiving any information about Tekin from Hassan, but confirmed that Tarpaz and Khan had given information to Tekin’s “detriment”.
- When he was cross-examined on behalf of Tekin, the allegation in terms was that Mr Goodman was hiding the: truth from the jury. This was one of the moments in the trial when what we have described as the undercurrent of alleged corrupt behaviour by Customs officials was more rather than less obvious. The alternative basis for the cross-examination was that Mr Goodman was insufficiently street-wise to be able to recognise Khan’s skill at directing attention away from himself towards Tekin. Mr Goodman was asked whether he was untroubled about the reliability of the information he had received from Khan, given Khan’s involvement in drug dealing. Mr Goodman replied that he was not troubled and explained that he was “happy with the information I was getting from Mr Khan and Mr Tarpaz because it bore out The judge interrupted, bringing his answer to an end and said “That is if’. In our view that interruption was over-favourable to Tekin.
- Before Sir Derek re-examined, there was a discussion about the question which he might ask on this issue. It was agreed that Sir Derek could re-examine Mr Goodman by asking whether in the light of the information that he had Mr Goodman was happy with this advice (that is the information from Khan). It will be seen that the question actually asked was rather different. After introducing it, Sir Derek asked:
“Did you have any other information about Mr Tekin from other sources?”
One counsel objected on the basis that this was not the agreed question. The judge accepted that it was not, but said to the witness that he should answer it. And the answer was “Yes”, and Mr Goodman continued that he had received the information before he had heard from Khan and Tarpaz, and that it bore out the information he subsequently received. In other words, Mr Goodman was countering the suggestions put to him on Tekin’s behalf.
- The judge, having allowed: the question, accepted in answer to renewed submissions that this question had gone further than his ruling. He said however that he would direct the jury that none of the material provided evidence against any of the defendants. That indeed was the direction given in the summing up.
- Our view of this exchange is that the conduct of the defence in opening up issues about the sources of information which were available to Customs and Excise, but which would not otherwise have been admissible at the behest of the Crown, the tenor of this cross-examination and the specific language used in it had indeed left it open to the Crown to re-examine in the way it did. In short, the question actually asked by Sir Derek was entirely legitimate, subject only to the fact that it went further than the judge had directed. When it was asked, notwithstanding an objection, the judge himself did not intervene. Perhaps he should have done so: perhaps, if he had second thoughts about the limited extent of the question he had permitted, he should have allowed further submissions to be made. All that said, the question was permissible, and would on further reflection have been permitted to be asked, and the suggestion made at trial that the jury should be discharged as a result of Sir Derek’s conduct in asking the question was, to put it bluntly, absurd.
Public Interest Immunity
- This is a convenient moment to deal briefly with a suggestion arising from the fact that leading counsel for Mus saw a document at some stage in the hearing, part of which had deliberately not been disclosed. Quite rightly, he drew attention to his concern that the document should have been disclosed to Tekin’s lawyers in full, without disclosing what he had seen. We have seen a letter from counsel, and the Crown has supplied us with the full text of the relevant document. We have considered it.
- We can find nothing in the document which might have advanced Tekin’s defence, or served to undermine the Crown’s case. We therefore decided, and indicated at the outset of the hearing, that there was no need for further disclosure.
The Summing up
The General Complaint
- The summing up took five working days, in the context of a trial which, after a jury retirement of several days, lasted a total of seventy days. Counsel for both appellants submit that this summing up was too long. In terms of case management, as with other aspects of this trial, that may well be right. However our immediate concern is with the safety of these convictions, and whether the summing up accurately directed the jury about the legal principles relevant to the trial and fairly reminded them of the evidence. Given the length of the trial, in relation to the evidence, the judge was faced with a stark choice: either a very brief summary indeed of the evidence, or a more detailed analysis of it. The temptation to take the short route must have been very great. As we have emphasised, the single issue in the case of each appellant was whether or not he was a knowing party to the importation of a substantial load of heroin with which on undisputed evidence he was, to put it neutrally, certainly linked at the time when the heroin was found by Customs and Excise officials. The defence of each appellant was long and convoluted, and if the judge had not reminded the jury of this prolonged evidence put before them to show that in the case of each appellant he was the possible victim of a conspiracy, alternatively the “fall guy” of major criminals, with or without the connivance of Customs and Excise officials, the first ground of appeal would have been that, particularly in view of a lengthy holiday gap after Tekin’s evidence had closed, the judge failed adequately to summarise the defence. Rightly therefore, the judge rejected the temptation to take the short route. Having done so, he was duty bound to adopt the same approach to the evidence called and relied on by the Prosecution, the detail of which provided an essential element of the strength of the Crown’s case. Accordingly a lengthy trial was followed by a long summing up.
- The internal structure of the summing up is clear. The jury were given appropriate directions of law at the outset and the judge then examined the evidence. Rather than go through the evidence by reference to the witness order (which in this case, because witnesses came from abroad, and others were recalled, some more than once, was chaotic) or which is more desirable in any event, chronologically, the judge decided to examine a number of critical issues and summarise the evidence of both sides as it related to each of these issues. Put another way, he summed up the evidence in chapters, the choice and order of which was perfectly logical. It is said that in consequence the defence case was not put before the jury as a coherent whole. We disagree. The judge did not read out the whole of the defence case, and the evidence of the appellants in particular, as a single part of the summing up. Indeed if he had read, for example, his summary of 14 days of Tekin’s evidence, it would have been positively unhelpful to the jury. He reminded the jury at the outset of the essential defence of each appellant, and the basis on which, notwithstanding their proved link with the importation of heroin, each was entitled to be acquitted. Thereafter, in relation to each chapter, he summarised the defence case. We disagree with the basic premise that this meant that the defence was not properly put before the jury. Indeed, provided justice was fairly done to the defence case, a summing up structured in this way was perfectly acceptable. Subject to specific questions to which we shall turn later in this judgment, the jury was reminded of the significant features of the defence case on each issue. The judge was not required to do more, and if he had, it would have been repetitious and prolonged the already lengthy summing up.
- Quite separately from the structure, it is said that the summing up was delivered too rapidly, and that it was from time to time inaudible. Given the time that the trial had taken we are not disposed to criticise the judge for seeking to import a degree of urgency into the process. The question is not whether the speed of delivery was too rapid, but whether, as delivered, the summing up was comprehensible.
- It is obvious that a summing up should be heard. The transcript shows numerous occasions when the logger transcribing what she could hear on the machine wrote the word “inaudible” into the text. On close examination, it is also clear that there were numerous occasions when the evidence was being given when the transcription! produced the word “inaudible” in the same way. It was not suggested at trial that the difficulties apparently experienced by the logger extended to anyone else. On yet closer examination, however, it is apparent that many of these entries in the summing up relate to moments when the judge was reading out aloud from a text which was before the jury, and that many other entries suggesting inaudibility relate to proper names with which the transcriber was presumably unfamiliar.
- We can illustrate these points very quickly.
- On 18th September, the judge was referring to Bundle B and Mr Tekin’s evidence, page after page in the bundle, when the word “inaudible” appears: “There is some mention of this in defence bundle B of the man (inaudible) who is I think a relation of Mr Tekin …”, and then a few sentences later, “He referred to page 2 which is a Turkish Sunday Newspaper ‘Black Cabs in Turkey’, an article about (inaudible)… You see on page 2, several London taxis are now going to service in Turkey (…. read to the word … ) Cab Company.” On the following page of the transcript of summing up we have this entry, “He looked at page 11 in the bundle that is the (inaudible) navigation and shipping.” And then a few pages on, during a reference to Tekin’s cross-examination the transcript reads, “I also had a look at a quote from Smith (inaudible) my apartment … “, and shortly afterwards, again recording a summary of Tekin’s evidence, “After the second draft I didn’t take any contract to (inaudible).”
- We need not illustrate this point further. It seems to us highly significant that throughout the whole of the five days, either at the start or the end of each day, or before or after lunch, or before or after the short breaks which were allowed in the morning and the afternoon, with the single exception on the morning of the second day, none of the counsel in the case and none of the jury suggested that they were having difficulty with hearing or comprehension. The only intervention was made by Sir Derek on the second day, 18th September. His concern was not repeated. We also note that counsel for the defendants intervened from time to time during the summing up in a way which makes it plain that they could hear what the judge was saying. In the case of Jisl, lengthy submissions were made to the judge which indicate that counsel had fully appreciated what had been said to the jury. Indeed it was not until after the summing up had ended, and these submissions were in the process of development, that any form of complaint appears. On 24th September – at p. 80 – Mr Philip Singer QC (for Jisl) commented:
“…if I may say so, parts, of your Lordship’s summing were delivered at rather more than dictation speed, and sometimes not very loudly.”
- We also note that this point did not figure in Tekin’s original grounds of appeal, and that neither his counsel nor counsel for Mus made any comment about audibility at all and no-one, whether prosecuting or defence counsel, suggested to the judge either, in the presence of the jury or in its absence, that the jury appeared to be having any difficulty. What is more the jury itself did not indicate, as juries do, sometimes by a note, and sometimes by a direct intervention from the jury box itself, that there were any problems. It is much too late for this point to be taken before us. If it was to be taken at all, it should have been taken as soon as any potential problem was identified.
- In any event however, we have examined the transcript of the entire summing up to enable us to decide whether, assuming that every entry where the word “inaudible” appears was in fact inaudible to the jury, the defence case was prejudiced, either because of what was not conveyed to the jury, or indeed because something might have been conveyed to them which should not. We can find no such prejudice, and our, attention has not been directed to any.
- An argument was founded on the basis that the jury asked for transcripts of the evidence to be provided immediately after their retirement. It is suggested that this request indicates that in some way the summing up had been deficient, or that the jury believed that they needed more help than the judge had provided. We reject the suggestion. Experience shows that there are often occasions, perhaps more frequently in longer rather than in shorter cases, when juries ask to be provided with full transcripts of the evidence. In our judgment it would be unwise to drawn any inference whatever about the reasons for a request for transcripts, or the whole of the transcript, except that it provides an indication that the jury is approaching its responsibilities with appropriate caution. Given the length of this trial, and the break that had taken place during the course of the evidence, it comes as no particular surprise that a responsible jury would have made such a request.
- We must now address specific criticisms of the summing up made on Jisl’s behalf by Mr Singer. Mr Lithman adopted some of these submissions on Tekin’s behalf and summarised them in a skeleton submission sent after the conclusion of the hearing. All are said to arise from errors made by the judge in course of his summing up which he was invited to correct, but in the end left uncorrected. We shall deal first with those criticisms in respect of which leave to appeal was given.
Witnesses from the Czech Republic
- The statements of a number of witnesses from the Czech Republic were read to the jury under ss 23 and 26 of the 1988 Act. Indeed, as already noted, it is one of Tekin’s complaints that Jisl was given this advantage when he was not. Some of the Czech witness statements, such as those in relation to the Rent-a-Car vehicle were undisputed, but others were strongly challenged. These included the statement of Dobiashevsky about the vehicle, and in particular its jack and carpet, with which Jisl took issue, and the statements of Dolejs and Jisl’s wife, Ivana, were similarly, and equally forcefully contested by the Crown.
- When dealing with the witnesses whose statements were read the judge directed the jury that where the statements included disputed matters, it was open to the jury to act on them, but he warned that jury that as the witnesses had not been cross-examined, the right approach was to take care. This specific direction was given in relation to Dobiashevsky. It is submitted that such a direction did not draw proper distinction between witnesses who gave evidence adverse to Jisl and witnesses who gave evidence which was favourable to him. Jisl’s wife was of obvious importance to the defence case, and Dolejs’ statements provided independent evidence which went directly to Jisl’s state of mind and knowledge, and was central to the basic question which the jury had to answer. Accordingly, it was argued that a specific direction should have been given about the correct approach to these defence witnesses.
- We do not agree that there was any error in the judge’s approach to this issue, and the essence of the direction was clear. The jury should treat disputed evidence which had been read to them with care, as there had been no opportunity for cross-examination by the side which was disputing it. This is an entirely conventional and sensible approach. It was clear to the jury from the statements, all of which were read in full, that some of them, including those of Dolejs and Jisl’s wife, were taken at official proceedings in the Czech Republic, and that it was undisputed that Dolejs had been a prosecution witness in proceedings in the Czech Republic which related to the importation of drugs. However this may be, the simple fact remained that none of these witnesses was available for cross-examination, and whether they were called for the prosecution or the defence, their evidence had indeed to be treated with care. In the present case there was no basis for distinguishing between witnesses for the Crown or for the defence.
- Dolejs made more than one statement. The judge told the jury that they had to consider whether in relation to his first statement there was any truth or half truth in it, and in relation to his second statement, that the Prosecution did not accept it. It was for the jury to say “taking everything into account, how much of it you accept, if there is anything you do not accept, how much of it is truthful, whether the final position is the truthful one”. They should also take account of everything Jisl had to say on the same subject. The judge reminded the jury that Dolejs gave evidence for the prosecution in the Czech Republic in which it was alleged that Dousek and others had unlawfully manufactured and been in possession of narcotics and psychotropic substances and poisons. In his second statement Dolejs acknowledged that in his first statement he had not told the truth in some significant respects, and these untruths were then corrected. At the end of his statements Dolejs said that he had been told that if he went to England to give evidence he risked arrest and prosecution under English law, and, as no promise of immunity had been given, he was not prepared to come.
- In argument Mr Singer acknowledged that Dolejs must have assisted in this particular importation because he knew that the purpose of the journey was the importation of drugs into England. Nevertheless he submitted that as Dolejs’ evidence was crucial to the defence, the jury ought to have been directed that if what Dolejs said might reasonably be true, they must act on it in Jisl’s favour. They ought to have been given detailed guidance on Dolejs’ evidence and its importance to Jisl. He reiterated that the jury should have been told that Dolejs must have been accepted as a witness of truth by the authorities in the Czech Republic because he gave evidence as a prosecution witness at a trial in that country, and that neither the customs authorities there, nor British officers who attended on behalf of HM Customs and Excise chose not to ask him at the Commission Rogatoire whether Jisl had been told of the plan to carry drugs. He pointed out that the telephone numbers given by Jisl were precisely the same numbers referred to by Dolejs in his statement, and Dolejs had said that those telephone numbers had been given to him by Psenicka. He complained that although the judge read most of Dolejs’ statements in full, he left out the telephone numbers themselves. This was an important omission because Dolejs’ statements gave precise support to Jisl’s account. This part of the argument concluded with the reference to the inaudibility of parts of the summing up, and the judge’s problems with pronouncing Czech names so that the jury, who did not have a copy of Dolejs’ statements, did not in the end have all Dolejs’ evidence before them.
- In our judgment these arguments are without force. The Judge rightly left the issue of Dolejs’ credibility to the jury. He reminded them that he had given evidence “in the case of Mr Dousek and others, for the unauthorised manufacture and possession of narcotics” and also told the jury, correctly, that Dolejs was never asked if Jisl was told that the van contained heroin. He directed them to try the case, on the evidence which was before them, not on possible answers to questions which for whatever reason had not been asked. Dolejs’ evidence in the form of his statements was then placed before the jury. The statements had been read out to the jury in full during the course of the evidence and, with the specific exception of the telephone numbers themselves, were again read out by the Judge in his summing up. The jury had before them all the defendants’ schedules containing the telephone numbers, supplemented by the submissions by Mr Singer. In these circumstances the omission of the numbers themselves during the recital of the evidence from the statements was of no importance. We reject the submission that the jury did not have an ample and sufficient reminder of the contents of Dolejs’ statements, and therefore of his evidence.
- Finally we must deal with the, criticism that there was a failure to summarise the importance attached by Jisl to Dolejs’ evidence, and its potential significance to his case. Mr Singer accepts that this course would have involved the Judge putting the Crown’s argument about the evidence before the jury at the same time. This would have meant reminding the jury that Psenicka was a prime mover in the conspiracy, and that Dolejs was clearly a party to this particular offence, and therefore likely to be of dubious credibility and for that reason alone, to be approached with even greater caution. Even if Dolejs was telling the truth, on proper analysis, that would not assist the jury in determining the critical question of what Jisl knew about the purpose of the journey, and Dolejs’ evidence would have to be considered in the light of the undisputed fact that Jisl had left his wife and children asleep without warning, in a strange hotel in southern England, when he was dog-tired after the cross-Continental journey from Prague, in order to go off with a stranger with whom he could not communicate properly in order to discover his destination on the following day. Sir Derek submitted that the account shouted incredibility, and once the link had been made with Dolejs, a party to the offence, and Psenicka, a prime mover in the conspiracy, by telephone numbers, it would be obvious that if the judge had rehearsed the points in argument made by each side in relation to the “importance” of Dolejs’ evidence, the outcome would have been disadvantageous to Jisl and favourable to the prosecution.
- There is considerable force in these submissions. In any event however the choice of how to present these matters to the jury was for the judge to decide. What was necessary was that he should put the evidence of Dolejs fairly before the jury. He did so. He was riot then obliged to rehearse the respective arguments on credibility.
- The submission is that the judge wrongly directed the jury about three factual aspects of the evidence of Mrs Pearson, the receptionist at the Travel Lodge. First, he said that Mrs Pearson had “passed on” telephone calls to Jisl, second, that Mrs Pearson had said that she could not remember if there were a lot of calls to him, and third, that she had said that a note of a Travel Lodge telephone number, found in Jisl’s possession, was not in her handwriting. These errors were pointed out to the judge at the end of the summing up, and he did not correct them.
- On the first alleged error, the evidence is straightforward. Mrs Pearson was asked:
“Q: … when you received as you described it several phone calls from a foreign man asking for directions and asking whether his friends were at the Lodge what did you do, in other words, did you pass on the fact of those calls to the party or not?
A: I did, yes, I probably, did, yes … I wouldn’t just ignore something. If someone asked me to pass a message on then I would have done.”
- On analysis, this complaint amounts to no more than the difference between “passing on” telephone calls, and passing the fact of telephone calls on. In the present context this is a distinction without a practical difference. Mrs Pearson’s evidence was quite clear that telephone calls could not be put through to the individual rooms, at the Travel Lodge and that she had, accordingly, asked Jisl to come to the telephone to speak. And in the sentence immediately following the judge’s reference to the telephone calls being “passed on”, he reminded the jury that according to Mrs Pearson’s evidence, Jisl had been asked to come to the telephone.
- The evidence about the second alleged error is equally straightforward. Mrs Pearson was asked:
“Q: Do you remember if there had been a lot of phone calls in relation to Mr Jisl?
A I cannot remember.”
On this basis the judge’s summary of the evidence appears to have been correct.
- The analysis of the evidence about the third alleged error reveals that Mrs Pearson’s final answer was that the relevant note of the telephone number was in her handwriting, when she had initially said that it was not. In so far as this evidence was material, the judge correctly reminded the jury that Mrs Pearson accepted that she must have given the number to Jisl as it was a staff number, and that she had received telephone calls from the foreigner, of which she had spoken, on that particular number. In these circumstances, Sir Derek was right to submit that there was no risk of the jury taking the view that Mus had spoken directly to Jisl. Indeed the evidence was clear that Jisl had been asked to get the telephone number of the Travel Lodge and to pass that information back, using a call box. He had left the motel for the service area and made a telephone call from a public telephone box reporting back the number of the Travel Lodge. Thereafter, Mus made the relevant telephone calls. The judge’s error was therefore without significance.
Observation evidence – Hudson and Lowe
- Of the Customs officers keeping observation at Travel Lodge, two, Hudson and Lowe, gave evidence that they saw four, rather than three men talking together by the Renault car. Of those four, three got into the Renault car, which drove away, and the fourth man was Konakli. Other Customs officers spoke of three men in the car park, which included Konakli.
- Mr Singer submitted that it was never suggested by Hudson or Lowe that one of these men was Jisl, and if they had they would have been wrong since Jisl was either inside the Travel Lodge, or in the minibus, and would in any event have been readily identifiable from his height, six feet five inches.
- Mr Singer pointed out that the judge commented that if there were four men present, then Mus, whose case was that he had never got out of the car at all at that stage, was “very close to the action …” and misquoted Lowe’s evidence that he could not say that Jisl was one of the four men, by telling the jury he had said that he could not “say that Jisl was not one of the four”. In relation to the drugs, the reference to a “handover” was inappropriate, and the jury should have been reminded that neither Hudson nor Lowe was suggesting that one of the four men was Jisl, or indeed that Hudson had seen Jisl at all before his arrest. Mr Singer accepted that the jury was told that the evidence was important in case of Mus, and strongly disputed. His complaint was that the jury was not reminded of its potential importance to Jisl’s case.
- From the transcript it is clear that the judge summed up the observation evidence of all Customs officers in great detail, by reference both to examination-in-chief and cross-examination. He reminded the jury of the directions he had given about the difficulties of identification evidence, and the care that was needed when dealing with evidence of observation. He further reminded the jury of the defence contention that the evidence was very important, and that in the case of Jisl must be wrong, because he had got into the minibus. He then applied his directions in relation to identification and observation in the specific context of the number of people said to have been seen standing near or about the Renault car, and having reminded the jury of the potential importance of the issue, and the challenge mounted to it by the defence, he summarised the effect of the cross-examination on Hudson and Lowe by Mr Singer.
- The Crown’s submission in essence was that this summary was accurate, and that the judge had rightly left the resolution of the issue to the jury. The reference to “handover”, used in its, colloquial sense, was not inaccurate.
- In summary, as the quotation in paragraph 96 demonstrates, Mr Singer is correct to argue that the way in which the judge summarised the evidence of Mr Lowe in relation to Jisl was not quite accurate. The error was trivial. The fact that Mus was acquitted, and this evidence related more closely to his movements than to Jisl’s, suggests that the jury took proper note of the judge’s warnings about evidence on the observation issue, and any doubts about the evidence from these two witnesses about the numbers present would plainly have applied to the benefit of any defendant who might otherwise be adversely affected.
- We therefore reject this ground of appeal.
- We turn finally to a number of points made on Jisl’s behalf in respect of which leave was refused.
- Mr Singer argued that the judge’s direction about inferences to be drawn from the evidence was inaccurate. The judge gave his directions of law at the beginning of his summing up. He came to the issue of inferences after his directions on the difficulties of observation evidence. He began by explaining the issue with a day-to-day example, in the context of any inferences which might be drawn as from the activities and movement of a man seen to emerge from a public house. He then went on to say:
“If you are going to dram, conclusions, inferences, from basic facts which you find to be: established, the inference should be strong clear and compelling. Anything in the nature of guess work or speculation would not be a safe inference … Putting it the other way round, would it be an affront to common sense if you do not draw the inference, if you do not come to the conclusion based on the facts which you find to be established?”
- No fair criticism could be made of this direction. It was however suggested that the judge should have directed the jury that this direction only applied to inferences relied on by the Crown against an accused, rather than to inferences which might be favourable to him. In our judgment, unless the judge’s directions might be thought to have watered down his directions about the burden and standard of proof which had been given only a few moments earlier, such an additional direction was unnecessary. In fact, the jury would have fully appreciated that the defendant was entitled to the benefit of any possible interpretation of the facts or any group of facts which was favourable to him, and that the direction about inferences which was given was intended to ensure, and did ensure, that the jury did not draw adverse inferences against an accused without a proper foundation for doing so.
Further criticism relating to observations at the scene
- This complaint is that the judge gave an erroneous description of the order in which the Renault motor car (carrying Tekin and Mus) and the mini-bus (carrying Jisl and Konakli) left the service area. It was argued that the evidence demonstrated that the car left the area before the mini-bus, and that this supported Jisl’s evidence that when he emerged from the Motel there was no sign of Tekin, but only Konakli. The judge therefore erred by saying that “if’ the car had left before the mini-bus, the jury had to consider why it was in the main car park afterwards. The evidence was important, first because of the observations by Customs officials that three out of four men had got into the Renault car before it drove off, and second, because the Crown had argued that Jisl was lying in his evidence that he had only seen Konakli (and not Tekin) when he left the hotel.
- We are not sure that the point made by Mr Singer actually reflects what the judge said in his summing up. However even if the judge’s direction was to the effect contended, it only reflected a deference to the fact that movements in the car park were pre-eminently matters for the jury, upon which they had to make their decision. The judge made that clear, and in our view, the use of the word “if’ would not have confused the jury.
Conflict between Jisl and Tekin
- The argument on Jisl’s behalf is that the judge did not adequately “flag up” the conflict of evidence between Jisl and Tekin as to what had been said between them at the door to Jisl’s hotel room. This was the one area in which their evidence was contradictory, and the jury should have been directed to address the importance of resolving the conflict in order to understand the logic of Jisl’s subsequent actions. The judge pointed out that Jisl’s evidence was at variance from Tekin’s evidence, and he fully summed up Jisl’s evidence on the subject. At the risk of repetition, it was not incumbent on the judge to rehearse every argument urged before him by counsel. There were here two conflicting strands of evidence by co-defendants, expressly pointed out by the judge, and it was for the jury to evaluate both accounts, and make up their minds, if they could, about them, and about the consequences which then followed.
- The final complaint relates to the judge’s alleged failure adequately to direct the jury about the correct approach to the lies told by Jisl when he was first questioned. When giving his directions on law at the outset of his summing up, the judge gave a full direction about the proper approach to lies told by an accused. Then, when dealing with the evidence. in relation to Jisl, he put the matter into its proper context by asking the jury to consider whether his lies were told out of fear of guilt, or as Jisl suggested, as a result of fear for the position of his wife and children who were still at the hotel. The submission to the judge, repeated before us, is that the jury should have again been told at that stage that they should not act on lies as an indication of guilt unless all other sensible and reasonable possibilities were rejected. We disagree. The judge did all that was required in giving his direction about the legal principle at the customary stage, and thereafter he made the direction fact specific to Jisl’s own evidence. There is no valid ground for complaint. A number of other points were raised in the written submissions, and the oral arguments on behalf of these appellants. They do not justify any further detailed mention.
- After this lengthy analysis of the numerous arguments deployed on behalf of each appellant, our conclusion can be expressed very briefly. No basis to justify interfering with either appellant’s conviction has been established. Accordingly the appeals will be dismissed.
Konakli’s appeal against sentence
- Like Tekin and Jisl, Konakli was a man of good character. The judge believed that his part in the conspiracy was to lend “active support to the actual importation” by playing a vital pail: of guiding Jisl’s vehicle, containing the load of heroin, to central London. It was therefore an important role.
- The case had proceeded as a re-trial. After the original trial, Tekin was sentenced to 23 years imprisonment, Konakli to 18 years, and Jisl to 16 years. Judge Dunn took account of those sentences, and in relation to all three defendants before him decided to reduce the sentence because, through no fault of the defendants, a second trial had taken place, and the matter had been hanging over all of them for, nearly 4 years. Hence the reduced sentence on Tekin from 23 years to 21 years, and on Jisl from 16 years to 14 years imprisonment. On this ground alone, therefore, the sentence on Konakli should have been reduced to 16 years. The argument, in a nutshell, is that the further reduction by one year did not sufficiently credit Konakli with the fact of his guilty plea.
- Certainly, the plea was not tendered at the first available opportunity. Indeed one ultimately abortive trial had resulted in Konakli’s conviction being quashed. However a guilty plea offered in such circumstances justifies a substantial discount. As against the lateness of the plea, a defendant whose conviction has been quashed once may be tempted into taking his chance at a second trial. In fact by pleading when he did, Konakli ensured a substantial reduction in the length of the second trial. In these circumstances, a reduction from 16 to 15 years imprisonment gave him insufficient credit for his plea.
- For these reasons, we reduce the sentence on Konakli to 13 years imprisonment.
- After an earlier trial which had taken place in 1998, this trial took place in the summer of 2001. By the time the retrial started we recognise that its management had already been fixed, virtually immutably, into pre-determined patterns. The observations which follow are not intended to be critical of the trial judge. Rather, they are an attempt to explain that since the date of this trial arrangements for case management by trial judges have changed, and to emphasise the urgent necessity that these changes and their potential impact are fully and widely understood.
- The starting point is simple. Justice must be done. The defendant is entitled to a fair trial: and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like, or for that matter, as long as counsel and solicitors or the defendants themselves think appropriate. Resources are limited. The funding for courts and judges, for prosecuting and the vast majority of defence lawyers is dependent on public money, for which there are many competing demands. Time itself is a resource. Every day unnecessarily used, while the trial meanders sluggishly to its eventual conclusion, represents another day’s stressful waiting for the remaining witnesses and the jurors in that particular trial, and no less important, continuing and increasing tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials which are waiting their turn to be listed. It follows that the sensible use of time requires judicial management and control.
- Almost exactly a year ago in R v Chaaban  EWCA Crim. 1012 this Court endeavoured to explain the principle:
“35. … The trial judge has; always been responsible for managing the trial. That is one of his most: important functions., To perform it he has to be alert to the needs of everyone involved in the case. That obviously includes, but it is not limited to, the interests of the defendant. It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to: jurors in waiting. Finally, the judge should not overlook the community’s interest that justice should be done without unnecessary delay. A fair balance has to be struck between all these interests.
37. … nowadays, as part of his responsibility for managing the trial, the judge is expected to control the timetable and to manage the available time. Time is not unlimited. No one should assume that trials can continue to take as long or use up as much time as either or both sides may wish, or think, or assert, they need. The entitlement to a fair trial is not inconsistent with proper judicial control over the use of time. At the risk of stating the obvious, every trial which takes longer than it reasonably should is wasteful of limited resources. It also results in delays to justice in cases still waiting to be tried, adding to the tension and distress of victims, defendants, particularly those in custody awaiting trial, and witnesses. Most important of all it does nothing to assist the jury to reach a true verdict on the evidence.
38. In principle, the trial judge should exercise firm control over the timetable, where necessary, making clear in advance and throughout the trial that the timetable will be subject to appropriate constraints. With such necessary even-handedness and flexibility as the interests of the justice require as the case unfolds, the judge is entitled to direct that the trial is expected to conclude by a specific date and to exercise his powers to see that it does.”
- The principle therefore, is not in doubt. This appeal enables us to re-emphasise that its practical application depends on the determination of trial judges and the co-operation of the legal profession. Active, hands on, case management, both pre-trial and throughout the trial itself, is now regarded as an essential part of the judge’s duty. The profession must understand that this has become and will remain part of the normal trial process, and that cases must be prepared and conducted accordingly.
- The issues in this particular trial were identified at a very early stage, indeed during the course of the previous; trial itself. In relation to each of the defendants, in a single word, the issue was knowledge. And indeed, the issue in most trials is equally readily identified.
- Once the issue has been identified, in a case of any substance at all, (and this particular case was undoubtedly a case of substance and difficulty) the judge should consider whether to direct a timetable to cover pre-trial steps, and eventually the conduct of the trial itself, not rigid, nor immutable, and fully recognising that during the trial at any rate the unexpected must be treated as normal, and making due allowance for it in the interests of justice. To enable the trial judge to manage the case in a way which is fair to every participant, pre-trial, the potential problems as well as the possible areas for time saving, should be canvassed. In short, a sensible informed discussion about the future management of the case and the most convenient way to present the evidence, whether disputed or not, and where appropriate, with admissions by one or other or both sides, should enable the judge to make a fully informed analysis of the future timetable, and the proper conduct of the trial. The objective is not haste and rush, but greater efficiency and better use of limited resources by closer identification of and focus on critical rather than peripheral issues. When trial judges act in accordance with these principles, the directions they give, and where appropriate, the timetables they prescribe in the exercise of their case management responsibilities, will be supported in this Court. Criticism is more likely to be addressed to those who ignore them.
- If these principles had been applied to this trial, it seems to us inconceivable that it would have taken 70 days before the jury reached its verdict, or given the issue in Tekin’s case, that his evidence would have lasted four days in chief, and part of a further ten days in cross-examination by counsel for the Crown, or that Tekin himself should have been permitted without warning, to produce a bundle of documents some four hundred pages long and seek to adduce it in evidence. Equally, we doubt whether the repeated recall of prosecution witnesses, some twice, several three times, would have taken place, or that the judge would have been invited time after time to break off the hearing of the evidence in order to give legal rulings. We are not seeking to analyse each and every aspect of the present trial where modem case management would have avoided delay. We are simply illustrating some of the more obvious areas where the modern approach would probably have saved time.
- The proper progress of this case was also interrupted by additional administrative burdens on the judge, performed and eating into the ordinary sitting hours of the court. Experience shows that once the forward impetus has been lost, it becomes extremely difficult to recover it. Imperceptibly at first, drift infiltrates the proceedings and develops into unacceptable delay. Again, we shall simply illustrate the phenomenon by example. If the jury is asked to be ready for the trial to start at 10.00 am or 10.30 am, and the start is delayed by even a few minutes, a pattern of late sitting eventually engulfs everyone. The ten minute break for the jury then lasts fifteen minutes. Counsel or the defendants, or one or other of them, is then not quite ready for the court to sit at 2.00 pm sharp. And so on. Witnesses whose evidence should have been completed on one particular day have to return on the next. Then, as by definition their evidence is not completed, the next day’s hearing inevitably involves some repetition of what has already been explored on the previous day – sometimes inadvertently, sometimes to enable a particular forensic point to be repeated. The inconvenience to the witness, and the problem of repetition would both have been avoided if the evidence had been completed by the end of the previous day. The trial judge, is responsible for providing the necessary example and leadership to prevent accumulating drift. In the longer cases in particular, the organisation of his administrative and other judicial burdens should, so far as practical, be reduced or organised to start at times which enable him to sit every day for full court days.
- As already explained, these observations are directed to future arrangements for case management of criminal trials. They do not impinge on the safety of these convictions, or the appropriate., levels of sentence.