No: 2009/0253/B1 
Neutral Citation Number: [2009] EWCA Crim 1494
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Thursday, 9 July 2009
 
B e f o r e:
 
LORD JUSTICE THOMAS
MR JUSTICE WILKIE 
 
MRS JUSTICE DOBBS DBE 
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R E G I N A 

v 

HAMMALA DIANE
 
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Mr W Walsh appeared on behalf of the Applicant
Mr C Nelson (who did not appear in the Court below) and Mr G Pottinger appeared on behalf of the Crown
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J U D G M E N T
1.	LORD JUSTICE THOMAS:  In November and December 2008 the applicant and two others were tried at the Crown Court at Croydon before His Honour Judge Stow QC and a jury for conspiracy in relation to the importation of cocaine.  In the course of the trial the judge admitted the evidence of Jenny Nagels, who was in Belgium at the time, who did not come to the United Kingdom, but was examined and cross‑examined over the telephone.  In due course the appellant and two others were convicted.  The appellant was sentenced to 12 years' imprisonment, less time on remand.  An application for leave to appeal was made on the basis the judge was wrong to admit the evidence of Jenny Nagels and the matter was referred to this court.  We grant leave to argue the sole issue that has arisen, namely whether the judge had the power to admit the evidence in the way in which he did and, if he had power, whether he was right to do so in the circumstances.  
2.	It is necessary briefly to set out the factual background.  The applicant and his co‑defendants Mocarski, Vatin and Pelka, were stopped on 4th October 2007 at Gatwick Airport whilst in transit from St Lucia to Amsterdam.  On a search of the luggage, the applicant and Pelka's luggage was found to contain a total of 1.56 kilograms of cocaine at 100 per cent purity.  The cocaine was found in a bottle of whisky in the appellant's luggage and in Pelka's luggage in a bottle of indigestion remedy.  It was the appellant's case that he had no knowledge of the drugs.  He had been given the bottles by Vatin, with whom he had travelled to St. Lucia in company with the others and he knew nothing about them.  
3.	Pelka pleaded guilty.  The other two defendants who stood trial with the appellant said the appellant had acted independently of them and they had no knowledge of the cocaine; he was the drug dealer.  The Crown's case was that all three were involved;  Vatin and Mocarski had recruited the appellant and Pelka as couriers.  
4.	In the course of the evidence the Crown called the customs officers who had arrested the appellant and his co‑defendants.  They gave an account of what happened at the airport.  The Crown also relied on documentary evidence which showed, in the Crown's contention, links between Vatin, Mocarski, the appellant and others, and also telephone records and some documentation.  
5.	The point of seeking to adduce the evidence of Jenny Nagels, who gave evidence over the telephone from Belgium in the way we have described, was to contradict an account that had been given by the appellant in his interviews relating to the circumstances in which the ticket had been purchased.  He had said that he had retained his passport at all times in his possession, he had given the details to Vatin and he had never been to the office where the ticket had been purchased.  The evidence to be adduced by Jenny Nagels was to the effect that, first of all, she had had the appellant’s passport at her office, and secondly, that the appellant had been there.  It was not only the Crown that wished to rely on that evidence; the defences of the two co‑defendants were cut‑throat defences.  They sought to show that the appellant had been associated with them from a much earlier time than he contended.
6.	We turn first of all to consider, against that background, what happened in relation to the admission of the evidence of Jenny Nagels.  She owned a travel agency business in Belgium.  As a result of an initial Letter of Request, which it now appears was made on 29th November 2007, she had been interviewed in Belgium by a police officer and had made a statement to the effect which we have briefly summarised.  That had been made in January 2008.  A trial was first attempted in late April 2008.  Prior to that trial a letter signed by the Director of the Revenue and Customs Prosecution Service, but without doubt prepared by someone else, was sent to the Government of Belgium asking for further assistance.  The letter, dated 24th April 2008, referred to the fact that the Director of the Revenue and Customs Prosecution Office (RCPO) was a designated prosecuting authority and empowered to make a request under section 7 of the Crime (International Co‑operation) Act 2003.  It then went on to say that he wanted to make the supplemental request because he wanted to seek further clarification of her evidence.  The letter then stated the following:  
"The trial in this case is fixed to commence on 28th April 2008.  The witness Ms Nagels has some difficulties attending to give evidence.  Evidence can be heard in a United Kingdom court by way of international video or telephone link.  
Further Assistance Requested 
1.  A further witness statement from Ms Nagels seeking the clarification outlined above.  
2.  Arrangements to be made to facilitate the giving of evidence by way of an international video or telephone link from a certified government building in Belgium." 
The letter then went on to explain the urgency of the request and to give details of the case lawyer and the divisional head concerned.  
7.	For reasons which are irrelevant the trial did not proceed.  It is not clear to us whether it was after the trial or at some much later stage that steps were taken to ask Ms Nagels to come in person to the United Kingdom.  She offered to come on the basis that the air fare of her husband was paid.  We imagine that a sum involved must have been in the low hundreds of pounds.  It is, however, the policy of Customs to refuse to pay for a witness who wishes to give evidence, even in a serious case, to be accompanied by anyone.  They therefore refused.  
8.	The matter was then re‑listed for a trial which commenced on 17th November 2008.  When it became clear that Ms Nagels would not come, consideration was given to trying to obtain her evidence from Belgium in the manner set out in the Supplemental Letter of Request.  It appears from a series of emails that have been produced to us today that what happened was that on 25th November the Belgium authorities said in an email that the judge had given his consent for a telephone link from the police station to be made.  As far as the Belgian judge was concerned, he was acting in accordance with the Request signed by the Director of the RCPO which had given the option of evidence being heard by way of a video or telephone link.
9.	It was clear that the diligent lawyer conducting the case for the RCPO thought that there might be a problem because later that day the lawyer sent back an email to say: 
"Just to confirm the evidence will need to be provided by Video TV link as the court will need to see the witness.  I understand that a telephone will be used to set up the video link."  
No doubt that was because hearing evidence by telephone in an court in England & Wales is unprecedented.  Enquiries have been made of this court’s office and of others as to whether there has ever been such a case before.  No one can find one.  As we shall seek to set out in a moment, what was set out in the Letter of Request as to the position in the law of England & Wales was plainly wrong.  
10.	After that request for the video link had been made by the case lawyer acting diligently, the response was sent back on the same day from Belgium that the judge had agreed for a telephone link as specified in the request.  He did not agree with the video link.  The response from the lawyer in the RCPO which then went back on the following morning was: 
"Thank you for agreeing the telephone link.  The Advocate ... is speaking to [the judge] to confirm the date and time that the court can receive the call."  
It is a matter of great regret that when it must have been obvious at this stage that the power of the court to hear evidence over the telephone must at least have been questionable, no one sought to point out to the Belgian judge that an error had been made in the Director of the RCPO’s letter and that there was doubt about the power for a UK court to hear evidence over the telephone.  That is the first matter where we think, apart from the initial fundamental error by the person who drafted the letter for the Director of the RCPO to sign, that there was a serious misleading of the courts involved in this case.  We can excuse, possibly, an error that was made in the department of the RCPO which drafted the letter of request, but obviously it will be for the Director of the RCPO to work out how this happened.  But there was no excuse for failing to draw to the Belgian judge's attention, in the spirit of comity that one would expect from the United Kingdom authorities, the fact that they had made an error in the request.
11.	The second and much more serious problem that arose was that none of what we have set out was disclosed to the judge at Croydon, Judge Stow QC.  It is plain from the judge's judgment that he believed that the Belgian judge "did not feel himself able to give consent to a video link, but there may be well good local domestic laws to justify the stance which he has taken."  That was not in fact the position.  The Belgian judge had been given an incorrect account of the law of England & Wales.
12.	There is no doubt that the full position should have been put before Judge Stow QC.  If the position had been put before him, we have no doubt he would not have embarked upon the course which he followed.  He should have been told what had actually happened and that this was not the Belgian judge's fault in any way at all, but the fault of those who had advised the Director of RCPO to sign the letter in the terms in which he did, and secondly of those who failed to correct the position for the Belgian judge when it became obvious that there was a problem.  
13.	What is next regrettable is that the argument before the judge failed to direct his attention to the relevant law.  This is no criticism of counsel because someone practising in the courts would expect to be provided by the RCPO with full details of what had happened and the relevant legislation.  Counsel did obviously carefully do some of his research and directed the judge to the decision of the Divisional Court in R (on the application of S) v Waltham Forest Youth Court [2004] EWHC 715 Admin and to the decision of this court in R v Ukpabio [2007] EWCA Crim. 2108.  Those decisions made it clear that the court did not have power to admit video evidence other than in accordance with the statutory provisions.  We are not certain whether the judge's attention was directed to some observations of Baroness Hale of Richmond in R v Camberwell Green Youth Court [2005] UKHL 4 at paragraph 63 where she questioned whether the decision in Waltham Forest was correct; all that did was to raise the question in relation to those cases.  Nor was the judge’s attention drawn to R v R [2008] EWCA Crim 678, where it was conceded by counsel instructed by the CPS that the court had no power to admit evidence by video other than in accordance with statutory provisons.
14.	However, what is of much greater significance in this case is the way in which the provisions within the European Union for hearing evidence between Member States by video conference or by phone have been dealt with in United Kingdom legislation.  In the Convention on Mutual Assistance 2000 article 10 provides for hearing by video conference; paragraph 7 of that Article provides that if a video link is to be used then the Member State requesting it is to bear the cost.  Article 11 provides for the hearing of witnesses by telephone.  It provides at paragraph 1: 
"If a person is in one Member State's territory and has to be heard as a witness or expert by a judicial authority of another Member State, the latter may, where its national law so provides, request assistance of the former Member State to enable the hearing to take place by telephone conference..." 
15.	Those articles were drawn to the attention of the judge, but unfortunately the judge's attention was not directed to the provision of the Crime (International Co‑operation) Act 2003 which gave the convention the force of law in the United Kingdom.  The provisions make clear that Parliament authorised in sections 30 and 31 that witnesses who are present in the United Kingdom could be heard in other countries by telephone and television links, but in contradistinction the hearing of witnesses who were abroad for trials that were to take place in the United Kingdom could only be made through television links.  There is no section authorising the hearing of witnesses abroad for trials in the United Kingdom by telephone.
16.	It seems to us that the obvious inference from these provisions is that Parliament took the decision that whereas in the procedure in other Member States for good reason within those Member States or elsewhere it might be desirable for people resident in the United Kingdom to give evidence for use overseas by telephone, that was not something that could happen for witnesses who were overseas who were to give evidence in a trial in England and Wales.  That would be entirely consistent with the long traditions of the common law that witnesses must appear in person to give their evidence, save where there were hearsay exceptions, and the modern elaborate and detailed provisions that permit evidence to be given by video link but not by telephone.  
17.	As we have made very clear, there is no case which authorises the use of the telephone to receive evidence in a criminal trial.  There is no example anywhere beyond this case that anyone has been able to find.  It seems to us clear that in the light of the way in which the Mutual Assistance Convention was brought into effect by Parliament that Parliament continued the long tradition that evidence had to be given by a witness in person, subject to the provisions dealing with hearsay set out in the Criminal Justice Act 2003 and the provisions permitting evidence to be given by video link.
18.	Unfortunately, neither what had happened in relation to the Belgian judge nor these legislative provisions were put before Judge Stow QC.  We are sure that if the judge had been properly apprised of the position he would have never made the ruling he did.  He had no power and, in any event, even if he had a power it would have been wrong to have exercised that power in the way he did without the true facts being put before the Belgian judge.  We feel sure that had a judge in a fellow state of the European Union been told the way in which evidence was received in this court, he would of course have acceded to a request made by a judicial authority in this country.  It is a matter of the deepest regret that Judge Stow QC was led to form the view that the Belgian judge had not helped the court, as is set out in his ruling.
19.	We therefore are quite satisfied from this unfortunate series of events that the judge fell into error in doing what he did. 
20.	We therefore are faced with the position that evidence was admitted before the court which should not have been admitted.  The question therefore arises as to the extent to which that evidence might affect the safety of the conviction.  
21.	Counsel for the appellant, Mr Walsh, who if we may say so has been of the greatest assistance to us today, has very properly and very fairly conceded that had the evidence of Ms Nagels not been before the jury but all the other evidence had been before the jury, not only was there a case to answer but, if the jury had convicted, then it would be impossible for him to complain that the verdict was in any way unsafe.  The reason he does so is because the appellant was found in the possession of this significant quantity of cocaine; the explanation that he gave would have been for the jury to consider.
22.	He argues, however, that in that case his client may well have been acquitted because, apart from the evidence of Ms Nagels, there was nothing that could absolutely contradict what the appellant was saying.
23.	It is right to say that there were very serious questions that would have been raised in the jury's mind.  For example, his account of what happened at Gatwick Airport when he left the main transit area and went through passport control was highly suspicious.  His explanation was he had made a mistake.  A jury might well have thought that that was not credible.  There were also a number of documents that may have been thought by the jury to have linked him with the others.  But for all of these matters he had an explanation which could not be shown to be incorrect.  
24.	The significance, however, of Ms Nagels' evidence was that she was able to say that his evidence was wrong and he was lying in two respects.  First, her unequivocal evidence that his passport had been seen; about that her evidence was crystal clear and in contrast to his evidence that he had never let the passport out of his possession.  Secondly, her evidence that either she or a colleague had examined his passport in his presence.  We have carefully considered her evidence which varies over the course of the examination and cross‑examination, as one might expect.  But the judge, if we may say so, very fairly and properly summarised the whole of her evidence to the jury, pointing out those passages where she had clearly said that he had been present and that he had been identified either by her or by her colleague as against the passport.  He also pointed out passages where she was slightly more equivocal.  
25.	So what the jury had before it was the evidence of Ms Nagels which could be shown to contradict the appellant and show he was lying in two material respects.  There could be no basis on which it could be contended that her evidence was untruthful and the thoroughness of her cross‑examination and questions might at least have left in the jury's mind that her recollection in relation to the passport being handed to her office was indisputable; there was a prospect they may have accepted the evidence that he had actually been present.  There was therefore hard evidence against which the truth of the appellant's account could be tested by the jury in contradistinction with all the other matters about which he had given evidence where there was no hard evidence and where it was for the jury to assess whether they believed him or not, from his demeanour and on the probability or improbability of his account.
26.	Mr Nelson, to whom we are also greatly indebted for the efforts that he has made both last night and today to uncover what happened that resulted in the evidence being put before Judge Stow QC, asked us to accept that, had the telephone call not been used, the evidence of Ms Nagels would have gone before the jury in a statement form.  We do not think at this stage we could reach a firm conclusion about that. The judge might well have taken the view that the trial should have been adjourned for a day or two for matters to be sorted out with the Belgian judge; he would also have had to consider what the overall position was in relation to this evidence as against the appellant, bearing in mind the court’s responsibilities under the various powers in the Criminal Justice Act 2003.  We do not think we can speculate at this stage as to what the judge would have done.
27.	It is extremely unfortunate that what happened in this case happened.  The Crown had a very strong case, but they chose, regrettably, to adduce evidence in a way that was not permissible and they showed, most regrettably, a lack of candour to the court.  We cannot, looking at all the circumstances of this case, conclude that the conviction is safe and therefore we must quash the conviction. 
28.	MR NELSON:  My Lord that raises the question of retrial and I make that application.
29.	LORD JUSTICE THOMAS:  You would like a retrial.  Is there any basis on which this can be resisted? 
30.	MR WALSH:  No, my Lord. 
31.	LORD JUSTICE THOMAS:  Very well.  How quickly can he be arraigned? 
32.	MR NELSON:  28 days.
33.	LORD JUSTICE THOMAS:  Obviously we need to get on with this because he has been in custody now since October 2007.  Delays in the case of citizens of the European Union in the courts of other countries are a matter of concern.
34.	MR NELSON:  56 days, please, my Lord.  Two months.
35.	MR WALSH:  I would urge your Lordships to pass a direction to have him arraigned as soon as possible.  We have all the papers ultimately.  There is no reason why this should take any longer than 28 days.  I would contend it could be done‑‑ 
36.	LORD JUSTICE THOMAS:  This case could be re‑heard at Croydon, could it, or such court as the presiding judge directs? 
37.	MR WALSH:  Yes.
38.	LORD JUSTICE THOMAS:  It is now 9th July, can we say by 17th August?  
39.	MR NELSON:  Yes, my Lord.
40.	LORD JUSTICE THOMAS:  Obviously there is only one count.  Will there be an application for bail? 
41.	MR WALSH:  Could I leave that open.  I am without instructions. 
42.	LORD JUSTICE THOMAS:  You may want to enquire whether there are in force any of the arrangements that can be made for him to be returned to his own country.  There is a consideration here that he has been in custody a long time.  Why did the first trial go wrong?
43.	MR WALSH:  Investigations were being made in various other jurisdictions as to the previous convictions of each of the defendants.  They each originated from different jurisdictions and it was plain at one stage that enquiries in respect of Mocarski had been, shall we say, more detailed than in respect of Mr Diane.  Mr Mocarski contended that was unfair and as a consequence of being told it would take some for further enquiries to be carried out in respect of Mr Diane that trial was aborted.
44.	LORD JUSTICE THOMAS:  So if the retrial does not take place until October 2009 he would have been in custody for two years.
45.	MR WALSH:  Yes.
46.	LORD JUSTICE THOMAS:  A very, very long time.
47.	MR WALSH:  Quite so.
48.	LORD JUSTICE THOMAS:  And in this instance the fault is entirely that of Her Majesty's Customs and Excise.  We think that the matter ought to go back to the judge who hears the arraignment; he can obviously consider whether bail is appropriate, bearing in mind the extremely long period in which the appellant has been detained and the fact that it is the fault of the Customs and Excise.  If those observations could be passed to the judge concerned, we would be grateful.
49.	MR WALSH:  Of course.
50.	LORD JUSTICE THOMAS:  Obviously we need to make an order restricting the reporting of this judgment until after the retrial.  We have observed that the nature of case is strong.  This must not be reported simply because these days there is a serious risk of someone looking at cases on the internet; for a jury to have seen the remarks of the court that there was a strong case against your client would, I think, cause a problem.
51.	MR WALSH:  And the concession from his counsel to the same effect‑‑ 
52.	LORD JUSTICE THOMAS:  Would cause an even bigger problem.  There will be no reporting of this case until after the retrial.
53.	MR WALSH:  My Lord, I think on my feet.  I do not know if your Lordship has the power to do it, but there are confiscation proceedings extant against Mr Diane. 
54.	LORD JUSTICE THOMAS:  They fall away.  The conviction has been quashed.  The transcript will carry this warning, that apart from the quashing of the conviction nothing else is to be reported.  It would be highly prejudicial to your client.  
55.	MR WALSH:  Thank you very much.
56.	LORD JUSTICE THOMAS:  You had better have some money for the next appearance, had you not?  
57.	MR WALSH:  Please, my Lord.
58.	LORD JUSTICE THOMAS:  Then we make a representation order.