R v Latif [1996] UKHL 16

Customs and an informer arranged a controlled heroin importation from Pakistan and lured Shahzad and Latif to England, where they sought to take delivery and were arrested. The House of Lords upheld their convictions, clarifying abuse of process, entrapment, and the scope of section 170(2) CEMA.

Facts

In 1990 Honi, a shopkeeper in Lahore, Pakistan, was a paid informer working for the United States Drugs Enforcement Agency and in contact with the British Drugs Liaison Officer, Mr Bragg. Honi knew local heroin suppliers.

On 6 February 1990 Honi met two men who wanted to import heroin into the United Kingdom. Acting under instructions from Mr Bragg, he fostered the connection and was introduced to the appellant Shahzad. Shahzad, an organiser in the heroin trade aged 37, made clear he was ready and willing to export heroin.

Initially, Shahzad proposed export to Holland, which Honi rejected. Shahzad then alone approached Honi, proposing an export of 20 kilograms of heroin to the United Kingdom. The arrangement was that Shahzad would deliver heroin to Honi in Pakistan; Honi would arrange an airline pilot courier; Honi would receive the drugs in London; and Shahzad or his representative would collect and distribute them in the United Kingdom.

On 1 April 1990 Shahzad delivered 20 kilograms of heroin to Honi. Its street value in England was £3.2 million. In accordance with instructions, Honi handed the drugs to a Drugs Enforcement Agency officer. On 10 April 1990 Mr Bolton, a Customs and Excise officer, travelled from England to Pakistan, collected the heroin and on 13 April 1990 brought it into England without a licence, acting on his superiors’ instructions. The Pakistani authorities were kept informed.

In May 1990 Honi came to England. Customs arranged for him to stay in a surveilled hotel room, with telephone calls intercepted and video recording. Honi did not have the heroin. He sought to persuade Shahzad to come to England to take delivery. On 19 May 1990 Shahzad arrived in London. Over the next two days he and Honi discussed delivery and payment. On 20 May 1990 the appellant Latif joined them; he and Shahzad knew each other and discussed the proposed delivery.

A customs officer pretending to hold the heroin arrived carrying six bags of Horlicks disguised as the original heroin packages. He handed the bags to Shahzad, who was immediately arrested; Latif was arrested just beforehand outside the room.

In the Crown Court at Southwark, both appellants were tried on two counts. Count 1 charged them with being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug (about 20 kilograms of diamorphine), contrary to section 170(2) of the Customs and Excise Management Act 1979. Count 2 charged an attempt to be knowingly concerned in dealing with prohibited goods with intent to evade the prohibition, contrary to section 1(1) of the Criminal Attempts Act 1981. After a lengthy trial, the jury convicted both appellants on count 1; they received 16 and 20 years’ imprisonment respectively. The jury were discharged from returning a verdict on count 2, which the prosecution had ceased to pursue.

Both appellants gave evidence, claiming they believed they were dealing with an importation of gold, but the jury rejected their accounts.

Issues

1. Abuse of process and entrapment

The defence argued that Honi and customs officers had, by subterfuge, incited Shahzad to commit the offence and lured him into the jurisdiction, and that a customs officer had himself committed the relevant importation offence by bringing heroin into the UK without a licence. They contended this was an abuse of process that should lead the judge to stay the proceedings.

The issues included:

• whether the conduct of Honi and Customs in luring Shahzad to England and facilitating the importation amounted to an abuse of process requiring a stay; and
• whether the criminality of the customs officer in importing the drugs made it contrary to the integrity of the criminal justice system to allow the prosecution to proceed.

2. Exclusion of evidence under section 78 Police and Criminal Evidence Act 1984

In the alternative, the appellants sought exclusion of the central prosecution evidence (notably Honi’s evidence and the recordings) under section 78(1) PACE on the basis that the manner in which the evidence was obtained rendered admission unfair.

3. No case to answer on section 170(2) CEMA

At the close of the prosecution case, the appellants submitted there was no case to answer on count 1, arguing that on the prosecution’s own evidence:

• any importation had been carried out by a customs officer, not by Shahzad or Latif, and not in concert with them; and
• there was therefore no “fraudulent evasion” by them within section 170(2) of the Customs and Excise Management Act 1979.

The legal questions included:

• the proper construction of section 170(2) CEMA, particularly the relationship between “fraudulent evasion” and “attempt at evasion” within the same subsection;
• whether Shahzad could be said to be “knowingly concerned in any fraudulent evasion” when the physical importation was carried out by customs officers acting for their own purposes; and
• whether, if no completed evasion could be established, Shahzad was at least guilty of an attempted evasion under section 170(2), and what consequences flowed from the indictment having been framed in terms of an actual evasion.

Judgment

Findings at trial and in the Court of Appeal

On the abuse of process/entrapment complaints, the trial judge heard Honi on a voire dire. As to the dealings in Pakistan, he summarised:

” . . . this is a case in which, as I find, all the suggestions for the crime came from the defendant [Shahzad]. I have to say, having heard the detail of how the arrangement was made in Pakistan, according to Mr. Honi, I think it would be a misuse of language to say there was an incitement by Mr. Honi of the defendant or a soliciting of the offence. The defendant voluntarily acted to explain his plan to Mr. Honi in Pakistan and Mr. Honi was merely his agent to arrange the carriage. Of course, Mr. Honi told him there was the opportunity to import these drugs to the United Kingdom by means of this carriage. Of course, all that was a deception, but the action all came from the defendant and the defendant . . . voluntarily came to the United Kingdom to deal in drugs here.”

The judge found that Customs had lured Shahzad to the UK by trickery and deception but that he came voluntarily, on a visa he had applied for, and that no extradition law was breached. He stated:

“what happened here is that every step the defendant [Shahzad] wished to take was facilitated by the authorities in order to make sure that they could bring a suspected and substantial drugs dealer to book.”

He refused a stay, reasoning:

“Though no court will readily approve of trickery and deception being used, there are some circumstances in which one has to recognise, living in the real world, that this is the only way in which some people are ever going to be brought to trial, otherwise the courts will not get to try this sort of offence against people who are seriously involved in it.”

On the section 78 PACE application, he held that admitting the evidence was not unfair, concluding:

“To my mind, there is nothing of substance here which is unfair to the defendant in admitting this evidence. The incriminating remarks are on tape, so that proof of them does not depend on recollection of witnesses. He was not deprived of any rights that he had or sought to avail himself of. It is not evident to me that any legislation or rules of practice designed to protect people from authority, has been infringed. Nor is it evident to me that the defendant is in any way handicapped from conducting his defence, whatever that may be, to this charge.”

He thus declined to stay the case and admitted the evidence. He also rejected the submission of no case to answer, treating the prosecution case as one of knowing evasion rather than attempted evasion.

The Court of Appeal dismissed the appellants’ appeals, rejecting all three grounds. It accepted that the customs officer did not act fraudulently for the purposes of section 170(2) but nonetheless held that Shahzad’s conduct fell within “fraudulent evasion” properly construed, adopting a wide meaning encompassing any conduct directed and intended to lead to covert importation in breach of prohibition.

House of Lords: abuse of process and entrapment

Lord Steyn (with whom Lords Keith, Jauncey, Mustill and Hoffmann agreed) accepted that entrapment is not a substantive defence in English law but emphasised the abuse of process jurisdiction. He described the dilemma: if courts never stay proceedings where law enforcement engage in wrongdoing, they risk appearing to condone it; if they always stay them, they risk failing to protect the public from grave crime.

He held the solution lay in discretionary balancing:

“The court has a discretion: it has to perform a balancing exercise. If the court concludes that a fair trial is not possible, it will stay the proceedings. That is not what the present case is concerned with. It is plain that a fair trial was possible and that such a trial took place. In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system. The law is settled. Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: Reg. v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42.”

The judge must balance the public interest in trying those charged with grave crimes against the public interest in not conveying that the end justifies any means.

Applying this, the House held that Shahzad was an organiser in the heroin trade who initiated the proposal to export heroin and was ready and willing to commit the offence. Honi’s role, though deceptive, merely provided an opportunity to commit an offence he was predisposed to commit. Even assuming the customs officer’s own acts amounted to criminal offences under sections 50(3) and 170(2) CEMA, his conduct was not so unworthy or shameful as to affront the public conscience. Relative to Shahzad’s serious criminality, any wrongdoing by the officer was described as venial.

The trial judge had considered the relevant factors and carried out the required balancing exercise. The House held that he had been entitled to refuse a stay and that there had been no abuse of process.

Section 78 PACE

Section 78(1) provides:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

The judge found as fact that Shahzad was not prejudiced in the presentation of his defence, a finding which counsel could not challenge. Lord Steyn recorded that counsel accepted that, if the abuse of process submissions failed, the section 78 argument must also fail. The House therefore upheld the decision not to exclude the evidence.

No case to answer and construction of section 170(2) CEMA

Section 170(2) CEMA creates an offence where a person is, in relation to any goods, “knowingly concerned in any fraudulent evasion or attempt at evasion” of a prohibition on importation. Combined with section 3 of the Misuse of Drugs Act 1971, it criminalises being knowingly concerned in the evasion or attempted evasion of the prohibition on importing controlled drugs such as heroin.

Lord Steyn analysed the ingredients of the offence as:

• goods subject to a statutory prohibition on importation;
• a fraudulent evasion or attempted evasion of that prohibition;
• the accused being concerned in that evasion or attempted evasion; and
• the accused acting knowingly.

He noted that evasion, as opposed to attempted evasion, necessarily presupposes an actual importation; if no importation has occurred there may still be an attempted evasion.

The Court of Appeal, seeking to uphold the conviction for the completed offence of evasion, had given an expansive meaning to “fraudulent evasion”, extending it to any conduct directed and intended to lead to covert importation, even absent a fraudulent courier. The House rejected this reasoning, pointing out that the law already allows the offence to be committed via an innocent agent, such as an innocent courier, and that the Court of Appeal’s approach blurred the boundary between evasion and attempted evasion and left little room for the latter.

Lord Steyn then turned to the causation problem. The prosecution had argued that Shahzad delivered the heroin intending it to be imported, it was in fact imported by the customs officer, and Shahzad later tried to take delivery in England. However, drawing on established principles of causation, he held that the free, deliberate and informed intervention of a second actor not acting in concert with the first breaks the chain of causation. Customs officers had full knowledge of the contents and acted for their own purposes, not in agreement with Shahzad. On ordinary principles, their intervention would relieve Shahzad of liability for the completed importation, just as a thief who independently stole and imported the heroin would do.

Consistency and principle, he held, did not permit creating a special exception to that causation rule for these facts. Thus, Shahzad could not be treated as concerned in a completed “fraudulent evasion” effected by the officers.

Attempted evasion under section 170(2)

Lord Steyn then considered the prosecution’s alternative argument, first advanced in the Court of Appeal, that Shahzad was at least guilty of an attempted evasion under section 170(2) itself. Shahzad had delivered the heroin in Pakistan for export to the UK and then attempted to collect it in England for distribution. These were acts more than merely preparatory to the full offence. Lord Steyn concluded that Shahzad’s guilt of an attempt at evasion under section 170(2) was plain and could not seriously be disputed.

Counsel’s argument that there could be no attempt at evasion if there was no fraudulent evasion in the movement from Pakistan to England failed, particularly in light of Lord Steyn’s acceptance that the customs officer had committed an offence under section 50(3) (and assumed, without deciding, under section 170(2)). Moreover, Shahzad’s attempt in Pakistan could not be rendered innocent by later official acts, and his attempt to take delivery and distribute heroin in England was independently an attempted evasion.

On jurisdiction, counsel had argued that an English court could not try an attempt committed in Pakistan. Lord Steyn rejected this, relying on DPP v Stonehouse, which established jurisdiction over attempts abroad where the effect is directed at the UK. He also referred to policy considerations, including those articulated by Lord Griffiths in Somchai Liangsiriprasert v Government of the United States of America, that jurisdiction over attempts ought to lie with the state where the full offence was intended to occur. In any event, Shahzad had also committed an attempt in England.

Effect of misdescription in the indictment

Count 1 charged an actual evasion rather than an attempted evasion. Lord Steyn observed that the Crown had simply charged more than was necessary; the factual basis was the same whether one viewed the conduct as a completed offence or an attempt. The same evidence and arguments would have been deployed had the count been framed explicitly as an attempt under section 170(2). Shahzad had in fact given evidence, and there was no realistic suggestion that his defence would have been conducted differently.

The prosecution had argued in the alternative before the Court of Appeal that Shahzad was at least guilty of an attempted evasion under section 170(2), and the Court of Appeal could have upheld the conviction on that basis, though it did not find it necessary to decide the point.

Lord Steyn rejected the notion that a technical misdescription should allow Shahzad to escape liability, emphasising the modern focus on substance over form in criminal trials. He held that section 170(2) creates a single offence which can be committed in two ways, by evasion or by attempt:

“In my view there is one offence under section 170(2), which can be committed in one of two different ways, namely by evasion or an attempt at evasion. Shahzad has correctly been found guilty of an offence under section 170(2). Such misdescription as is contained in the indictment can be ignored.”

Accordingly, Shahzad’s conviction under section 170(2) was upheld on the footing that, even if no completed evasion could be established, he was clearly guilty of an attempt at evasion under the same subsection.

Latif’s position

Counsel for Latif adopted Shahzad’s submissions and additionally argued that Latif’s role was insufficient for liability under section 170(2). Lord Steyn rejected this, pointing to Latif’s participation when he joined Shahzad and Honi on 20 May 1990 and attempted, together with Shahzad, to take possession of the drug for distribution in the United Kingdom. In light of these facts, the arguments advanced on his behalf were held to be without substance, and his appeal was dismissed.

Implications

This decision is significant for several reasons:

• It confirms that entrapment is not a substantive defence in English law but that courts may stay proceedings as an abuse of process where law enforcement conduct amounts to an affront to the public conscience, following Ex p Bennett. The court must conduct a balancing exercise, focusing on both trial fairness and the integrity of the criminal justice system.
• It clarifies the scope of section 78(1) PACE in this context: improper or deceptive investigative methods will not by themselves require exclusion of evidence absent a demonstrable adverse effect on the fairness of the proceedings.
• It provides authoritative guidance on section 170(2) CEMA, distinguishing between evasion and attempted evasion, emphasising the need for an actual importation for the former, and rejecting an over-expansive reading that obliterates the role of “attempt”.
• It applies orthodox causation principles in criminal law, holding that free, deliberate and informed intervention by law enforcement officers acting independently can break the chain of causation for a completed offence, while leaving intact the liability of the original actor for attempt.
• It confirms that section 170(2) creates a single offence capable of commission by evasion or by attempt, and that technical mis-description in the indictment will not invalidate a conviction where the accused suffers no prejudice and the factual basis is properly established.
• It reinforces the jurisdiction of English courts over attempts directed at the United Kingdom even where part of the conduct occurs abroad, especially in transnational drug trafficking cases.

Verdict: The House of Lords dismissed the appeals of Latif and Shahzad, affirmed the Court of Appeal’s orders, and upheld their convictions under section 170(2) of the Customs and Excise Management Act 1979.

Source: R v Latif [1996] 2 Cr App R 92