Neutral Citation Number:
[2010] EWCA Crim 1858
Case No:
2008/00803/B5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LEICESTER
HH Judge Everard
T20067390
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:
29/07/2010
Before :
LORD JUSTICE LEVESON
MR JUSTICE HOLROYDE
and
HIS HONOUR JUDGE STOKES Q.C.
The Recorder of Nottingham
Sitting as a Judge of the Court of Appeal (Criminal Division)
- - - - - - - - - - - - - - - - - - - - -
Between :
ASIF IBRAHIM PATEL
ASIF IBRAHIM BHIKI
SAJID IBRAHIM BHIKI
SIKANDER PATEL also known as HOOSEN SHAIK
SOYEB PATEL also known as JUNED EBRAHIM
Appellants
- and -
THE QUEEN
Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Miss Hayton
for
Asif Patel
Mr Rashid
for
Asif Bhiki
Mr D Friesner
for
Sajid Bhiki
Mr S Alfred
for
Sikander Patel
Miss P Radcliffe
for
Soyeb Patel
Mr D Herbert
for
the Crown
Hearing date : 16
th
July 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Leveson:
1.
In January 2008, in the Crown Court at Leicester, these Appellants were convicted by a jury of an offence of conspiracy to do acts facilitating the commission of breaches of immigration law by individuals who are not citizens of the European Union, contrary to
s1(1) of the Criminal Law Act 1977
. They now appeal against those convictions by leave of the full Court. Three of the Appellants, namely Asif Bhiki, Sajid Bhiki and Sikander Patel also apply for leave to appeal against their sentences.
2.
The charge of conspiracy was also faced by two other men. Shabbir Patel pleaded guilty (on a basis which was accepted by the prosecution) before the trial began; the other was acquitted. For the sake of completeness, we add that, on the same indictment, Sikander Patel and Soyeb Patel, were also charged with other offences. Sikander Patel pleaded guilty to four substantive offences arising out of his possession and use of a false South African passport and his entering into a sham marriage. Soyeb Patel pleaded guilty to two substantive offences arising out of his possession and use of a false South African passport. Nothing in these appeals turns on those convictions.
3.
The particulars of the offence tried by the jury were that between the 1
st
January 2003 and the 20
th
February 2007 the defendants “conspired together and with Inayat Musa Patel, Yusef Mewaswala, Asif Moosa, Shabbir Patel, Attaula Patel (also known as Imran Jadwat), Hasim Mohammed Moolla, Amritlal Bava, Nishaben Patel, Hitendra Patel and with persons unknown to do acts facilitating the commission of breaches of immigration law by individuals who were not citizens of the European Union, namely acts which facilitated the unlawful immigration into the United Kingdom of such individuals, knowing or having reasonable cause for believing that those individuals were not citizens of the European Union, and knowing or having reasonable cause for believing that the commission of breaches of immigration law by those individuals was thereby facilitated”.
4.
The fact that such a conspiracy existed was not in dispute during the trial. It was proved by the guilty pleas which had been entered by Shabbir Patel and (at an earlier trial) by Yusuf Mewaswala, Amritlal Bava, and others who were not specifically named as co-conspirators in the indictment. Thus the issue for the jury in relation to each of these appellants, considered individually, was whether the evidence proved so that the jury were sure that at some time during the period covered by the indictment he was a party to the conspiracy. It was the prosecution case, denied by all these appellants, that during the relevant period they had been involved in the illegal immigration of any persons into the United Kingdom from India via South Africa.
5.
This prosecution was the outcome of an investigation carried out between 2003 and 2007 by the Serious and Organised Crime Agency (SOCA) and known as Operation Coptine II. As its name implies, that investigation was the successor to, or continuation of, Operation Coptine I, the outcome of which had been the earlier trial to which we have just referred. HH Judge Everard conducted both trials and so had a complete picture of the entirety of the investigation when he sentenced all those who were convicted of the conspiracy.
6.
It is to those facts that we now turn. Mewaswala was the ring leader of the conspiracy in this country, with Bava being his right-hand man. In broad terms, two different methods were used to facilitate illegal entry into the United Kingdom, one involving the use of false UK passports created in this country, the other involving travel via South Africa and the use of false South African passports. Mewaswala was heavily involved in facilitating unlawful entry from India to the United Kingdom, including by the use of forged UK passports. His principal contact abroad was Inayat Patel, who was able by the use of corrupt officials to obtain false South African passports. The prosecution alleged that Inayat Patel provided accommodation in South Africa to persons who were making their way illegally from India to the UK. He then arranged for the provision of false South African identities and passports together with flights and escorts to enable unlawful entry into the UK for those willing to pay for that criminal service. There was evidence before the jury to the effect that would-be illegal entrants who had relatives in the UK would generally be provided with a false UK passport, which would be paid for in advance by the relatives in this country, whilst those with no relatives in the UK would generally be provided with a false South African passport.
7.
It was the prosecution case that these Appellants also used Inayat Patel to assist them with some of the arrangements needed to bring persons illegally into this country via South Africa. Asif Patel (also referred to in the evidence as Jilani) was alleged to have been a “money man” in the conspiracy, that is to say, one of those who transferred to others money which had been collected in the UK by way of advance payments from the relatives of illegal entrants. Asif Bhiki was a close friend of Inayat Patel: he and his brother Sajid Bhiki were alleged to been linked to Inayat Patel’s illegal arrangements, with Asif Bhiki being another money man. When the house which they shared in this country was searched, it was found that there was a man living in the loft who had entered this country illegally using a false South African passport. Soyeb Patel was alleged to have been heavily involved in the provision of a safe house, where illegal entrants were accommodated when they first arrived in the UK, and as a money man in collecting and transferring money paid by those entrants. His brother Sikander Patel was said to have become involved as time progressed, even if he may not have been a party to the conspiracy from the outset, and it was alleged that he provided his brother with mobile phones to assist in communications with Inayat Patel in furtherance of the conspiracy.
8.
A brief summary of some of the principal features of the evidence is as follows. On 5 August 2004 Inayat Patel visited Mewaswala in Leicester. They went into premises owned by one Omjeet Sidhu, another man who subsequently pleaded guilty to the offence of conspiring to facilitate unlawful immigration into the UK. The following day, Meswasala and Bava took Inayat Patel and his family to the home of the Appellants Asif Bhiki and Sajid Bhiki.
9.
Two days later, on 8 August 2004 Inayat Patel and his family travelled from Heathrow Airport to South Africa. They were taken to the airport in a vehicle registered to Sajid Bhiki. As a result of a search of Inayat’s luggage at the airport an address book and notebook (“the 2004 notebook”) were recovered by police and copied. The originals were then replaced in Inayat Patel’s luggage. Handwriting evidence confirmed the entries were written by Inayat Patel. The address book contained entries for the Appellants Asif Patel, Asif Bhiki and Soyeb Patel, and entries also for Mewaswala and Attaulla amongst others who could be linked to the conspiracy. The notebook contained approximately 120 names, of which 68 had various monetary amounts next to them. It was the prosecution case that this was a record of persons whose illegal entry into this country had been facilitated, or was being facilitated, in the course and furtherance of the conspiracy.
10.
By September 2005, a listening device had been placed in Meswasala’s vehicle. Thereafter a number of conversations were picked up, which the prosecution contended confirmed Mewaswala’s participation in the conspiracy. These included conversations in which Mewaswala was discussing his charges, expressed in pounds sterling, for providing forged passports, visas and stamps in passports.
11.
On the 4
th
April 2006 there were police searches of the homes of Inayat Patel and Mewaswala. At Inayat Patel’s home, in South Africa, the property recovered included an address book, and a 2006 diary containing entries which were shown by handwriting evidence to have been made by him. At Mewaswala’s home the property recovered included address books.
12.
The prosecution relied heavily on the contents of Inayat Patel’s 2004 notebook and 2006 diary. These books were said to contain a comprehensive record of many of the persons whose illegal entry into this country had been facilitated by Inayat Patel. Evidence was given during the trial by Wilhelm Vorse, Assistant Director in the Department of Home Affairs in South Africa. He had investigated 89 of the names found in Inayat Patel’s diary. All of them were false, in the sense that they were real people whose identities had been stolen. He explained to the jury how such identities were obtained. In many instances, a sum of money was entered in the notebook or diary next to the names listed in these records: the prosecution attached significance to the fact that these sums were expressed in pounds sterling.
13.
The Appellant Asif Patel was referred to (by his nickname or alternative name Jilani) on various pages of the 2006 diary, with some of the relevant entries referring to money. These included pages with columns headed “Asif Jilani I paid” and “Asif Jilani paid me”, in which were listed names and amounts of money. One of the names in the first column was that of a man who had pleaded guilty to the conspiracy. The Appellant Asif Bhiki was similarly referred to on a number of pages of the 2006 diary: two of those pages listed sums of money in columns headed “Asif Bikhi I paid” and “Asif Bikhi paid me”. The Appellant Sajid Bhiki was referred to numerous times in the 2006 diary. The Appellant Soyeb Patel was also referred to in the diary, it being accepted that the name “Soib” referred to him, and in Inayat Patel’s address book Soyeb Patel’s phone number was listed as “Soib London home”. One of the diary entries was relied on by the prosecution as showing that Soyeb Patel had collected a sum of £4,500 on behalf of Inayat Patel. Thus four of the five Appellants were incriminated by entries in Inayat Patel’s diary.
14.
The importance of the contents of those two books can be seen from the approach which all parties appear to have adopted during an unsuccessful submission by the defence that the books should not be admitted in evidence: it appears to have been common ground that if that submission had succeeded the prosecution case would have collapsed.
15.
In addition to general evidence about the activities of others alleged or proved to have been involved in the conspiracy, there were three further main areas of evidence on which the prosecution relied: the oral testimony of a witness called Yusuf Ameeji; financial evidence relied on as linking defendants to what were alleged to be the proceeds of facilitating illegal immigration; and telephone evidence showing contacts between the defendants and their alleged co-conspirators.
16.
As will become apparent, the witness Yusuf Ameeji is central to these appeals. He was relied on by the prosecution as providing a detailed insider’s perspective of how the illegal operation worked, and as being able to identify the persons he knew to be involved in that operation. It is therefore necessary to outline his evidence.
17.
Before doing so, however, it is necessary to mention some matters which the prosecution relied upon as important background to the Appellants’ submissions in this appeal. Shortly before the trial began, Yusuf Ameeji made a statement saying that his wife had been approached in India by members of the Bikhi family with a view to her providing a statement contradicting her husband’s evidence. Then during the first week of the trial, whilst legal argument was taking place, those acting for Asif Bikhi served a statement taken in India from Yusuf Ameeji’s wife in which she asserted that Asif Bikhi was not involved in unlawful immigration.
18.
Yusuf Ameeji said in evidence that he went to South Africa in 1998. A visa was arranged for him by a man called Yaseen Ahmed. In Johannesburg he was met by Inayat Patel. He said he had met him before when he saw Yaseen Ahmed in India: one of the many points made in the defence attack on his credibility was that Yusuf Ameeji initially failed to mention to the police that Inayat Patel was in fact his brother-in-law. Yaseen Ahmed had told him that Inayat would come and pick him up. They went to Rayburn Mansions, a five storey building with 70 flats, where other young men from India were living. Amongst those Yusuf Ameeji met during his three-year stay at that address were the Appellants Soyeb Patel and Sikander Patel, who are brothers, and Shabbir Patel (who, as we have said, later pleaded guilty to this conspiracy). They had travelled to South Africa in the same way as Yusuf Ameeji had done, and were also friends of Inayat Patel. They stayed in South Africa until 2001. Soyeb Patel would collect the rent from everyone.
19.
Yusuf Ameeji said that in 2002 he too decided to go to the UK. He was provided with a false passport and birth certificate. Inayat Patel arranged for him to travel to the UK with a female escort who posed as his girlfriend but was in reality accompanying him to assist him in dealing with customs or immigration officials. Yusuf Ameeji said he was aware that there were others travelling in the same way at the same time, also using false passports and accompanied by escorts. He went to a house in Monega Rd, Leicester, where Soyeb Patel, Sikander Patel and four others were living: the prosecution case was that this was one of the addresses which the evidence showed to have been used as a “safe house” in which many illegal entrants were accommodated upon their arrival in this country. He called Inayat Patel from Monega Road to say he had arrived safely. Thereafter, Yusuf Ameeji said, he got a job in a factory in Leicester. He would recognise faces he had met in South Africa. He lived for a time at St Saviour’s Rd, Leicester with 3 people from South Africa who had arrived in the same way as he had done. They were all using false names. Later, in 2004, he lived at 6 Bolsover St, Leicester where he was joined by Inayat Patel’s brother Attaulla, Attaulla Patel would collect money from people who came to the UK, and was involved with Asif Moosa. If someone wanted to come to the UK they would talk to Asif Moosa. Yusuf Ameeji said that in 2003 the appellant Asif Patel came to the UK and was “involved in all these things”.
20.
Yusuf Ameeji said he had also stayed at Mewasala’s house at Jellicoe Rd, Leicester. Attaulla Patel, Inayat Patel and the appellant Asif Patel would talk about money. On one occasion he saw Attaulla with £20,000, which he gave to Inayat who gave it to Mewasala. He once saw Asif Patel collect money from Attaulla, which ultimately went to Inayat. The witness also spoke of an occasion when the appellant Asif Bhiki invited him and his wife to his house for dinner because of Asif Patel’s friendship with Inayat Patel. On the same day he went to Soyeb Patel’s house on Monega Rd.
21.
Yusuf Ameeji further gave evidence that the Appellant Soyeb Patel helped Inayat Patel. Inayat used to ask Soyeb Patel to collect money from families that arrived from South Africa to the UK. He heard about that through Attaulla Patel as Attaulla and Soyeb Patel used to talk on the phone. Attaulla would ask Soyeb Patel whether a “container” had arrived, that being a word used to refer to a person illegally coming to the UK. Conversations were always about people rather than money.
22.
Yusuf Ameeji’s wife also came to this country. When she applied to the Home Office for leave to remain, the address of the appellant Asif Bhiki was given on her application. Asif Bhiki knew that Yusuf Ameeji and his wife were in the UK illegally.
23.
In April 2006 Mewaswala was arrested. Attaulla Patel was worried he would be arrested so they took him to Soyeb Patel’s house. Inayat Patel rang Asif Bhiki and asked him to take Attaulla to London.
24.
On the 16
th
November 2006 Yusuf Ameeji was arrested due to his possession of the false South African passport which he had used, and his staying in the UK. He pleaded guilty and on the 23
rd
December 2006 was sentenced to 12 months’ imprisonment, which he served at HMP Leicester. Mewaswala and Asif Bhiki were also in the same prison: each separately told him not to say anything to SOCA. SOCA did visit him in prison but he said nothing. After the visit, Asif Bhiki and Mewaswala again said to him, “Did you say anything to them about us?” and he said, “No”. When he eventually came to give evidence, it is relevant to note that Yusuf Ameeji’s evidence did not implicate either Sikander Patel or Sajid Bhiki in the conspiracy.
25.
In cross-examination Yusuf Ameeji confirmed that Attaulla Patel had introduced him to the appellant Asif Patel at 6 Bolsover St. This was the only day he saw him. Asif Patel came to collect some money from Attaulla. He agreed Asif Bhiki was being hospitable in inviting him and his wife together with Attaulla over for dinner. He agreed that calls he had made to Asif Bhiki were to do with clothing samples. He denied that Inayat Patel had told him to use Asif Bhiki’s address on his wife’s application to the Home Office. He said Asif Bhiki organised it, saying “You can use my home address”. He disagreed with the suggestion that Soyeb Patel had only collected the rent etc in Rayburn Mansions for a few months. He stated it was “for a long time”. He said that Attaulla Patel came to London in the middle of 2003: Yusuf Ameeji knew he was coming as he had heard Maksood talking to Soyeb Patel. Inayat had told Soyeb Patel first, Soyeb Patel informed Maksood and Maksood told him. It was suggested to him that he was trying to put a different picture on Soyeb Patel’s contact with Attaulla, but he denied this confirming he had heard Attaulla and Soyeb Patel talking about a container arriving. He confirmed that Soyeb Patel helped Inayat by letting people stay at his house. He admitted that on his own account he had told many lies when interviewed under caution following his arrest, but he denied that he was motivated in giving evidence by a desire to remain in the UK.
26.
It is not necessary for the purposes of this judgment to go into greater detail about the evidence of Yusuf Ameeji.
27.
When interviewed, the Appellant Asif Patel made no comment. Asif Bhiki denied involvement in the conspiracy, but said that he and his brother had been friends with Inayat Patel since childhood. Sajid Bhiki made no comment. Sikander Patel said he had been born in South Africa and had held a valid South African passport, but made no comment to many of the questions.
28.
Four of the five appellants gave evidence at their trial denying involvement in the conspiracy. Sikander Patel did not give evidence. It should be noted that in the course of his evidence, Soyeb Patel gave a clear description of how the system of illegal entry was operated, though he denied being any part of the conspiracy. He also gave evidence admitting that he had approached Inayat Patel with a view to obtaining a false identity for his wife so that she could travel to South Africa, though in the event this did not happen: the prosecution case was that he had been planning to bring his wife to the UK, and it was submitted that on that basis alone he was guilty of the conspiracy.
29.
Each of the appellants sought leave to appeal against their convictions. They advanced a number of disparate grounds of appeal. On 22
nd
January 2009, the full Court gave directions as to disclosure and as to the lodging of skeleton arguments. On 21
st
April 2010, a different constitution of the full Court dismissed all grounds of appeal except two relating to Yusuf Ameeji. These two grounds were originally put forward by the Appellant Soyeb Patel, but with the leave of the full Court have subsequently been adopted by all the other appellants.
30.
Briefly stated, the grounds on which all of these appeals are now put forward focus primarily on the allegation are that “the post-trial disclosure (‘the fresh evidence’) received from the Crown fundamentally undermines the reliability of the evidence given by the witness Yusuf Ameeji, thereby rendering the [convictions] unsafe”. Additionally, it is argued that the Judge’s direction to the jury to approach the evidence of Yusuf Ameeji with caution was insufficiently emphatic.
31.
In order to understand those grounds, it is necessary to summarise in chronological order certain matters which have arisen since Yusuf Ameeji gave his evidence at trial, which he did between the 28
th
November and 4
th
December 2007. It is also necessary to record that Yusuf Ameeji was during the relevant period subject to the witness protection scheme and in that way receiving some financial support.
a.
In May 2008 Yusuf Ameeji was due to give evidence for the prosecution in another trial, but failed to attend court. When subsequently asked why, he said he had been scared of being deported.
b.
By letter dated the 18
th
June 2008 the prosecution quite properly disclosed to defence solicitors the fact that Yusuf Ameeji had failed to attend that trial, and also disclosed information which had come to their attention, together with copies of relevant documents. This information was to the effect that in March 2008 Yusuf Ameeji had given instructions to a solicitor representing him in immigration matters, saying that he had been promised indefinite leave to remain in this country in return for giving evidence for the prosecution against these Appellants. The prosecution deny that any such promise, or even suggestion, was made.
c.
On the 19
th
January 2009 – just 3 days before the directions hearing to which we have referred – Yusuf Ameeji swore an affidavit in India in which he said:
“Whilst becoming the witness of the Crown I made certain statements which were false and I have realised that and it is playing with my conscience. I would like to correct all that and help the defence in the appeal of court against the conviction. By doing this it will help innocent victims that are convicted which is totally unjustified. The false statements actually played a big part in their conviction. I only gave those statements on the false promise of the crown prosecution. I have truthfully stated everything in my immigration application for leave to remain in the UK with regards to the statements I gave as a prosecution witness”.
The affidavit then continued with a number of specific examples of parts of his evidence which he was now asserting had been untrue, the majority of them relating to the Appellant Asif Bhiki. It concluded with a request to “the independent solicitor to release this statement to the Court of Appeal and Crown Prosecution Service and all the solicitors that are involved in this case”.
d.
This affidavit was indeed sent by both fax and post, by the Indian solicitor before whom it was sworn, to the solicitors acting for Asif Bhiki, who provided it to the prosecution at the directions hearing. Thereafter it was disclosed to the other defence solicitors. Asif Bikhi’s solicitors subsequently obtained a short statement from the Indian solicitor before whom the affidavit had been sworn: he said that Yusuf Ameeji had arrived at his office with the affidavit already typed out, and asked the solicitor to “register it”. The Indian solicitor said that he checked the passport and photograph provided by Yusuf Ameeji, and “made registration of the said affidavit in routine manner”. The Indian solicitor added that he did not find Yusuf Ameeji under pressure or stress, but gave no further details of this episode. We are bound to say that it must surely be an unusual event in the life of a solicitor for someone to attend his office with a typed affidavit admitting to perjury in a foreign court, and that in the view of this court the brief and bland terms of this statement raised more questions than it answered.
e.
On the 21
st
January 2009, the day before the directions hearing and therefore before the prosecution were aware of this affidavit, witness protection officers spoke to Yusuf Ameeji by phone: he said that everything was in order, and appears to have made no reference to the fact that he had sworn the affidavit two days earlier.
f.
On the 26
th
January 2009, having been made aware of the affidavit, witness protection officers again contacted Yusuf Ameeji, who was still in India. He said that he had been threatened, made to sign a statement and had had his photograph taken. He also said that the men who threatened him had told him not to tell anyone about it, and that he had not gone to the local police because he did not trust them. It was submitted to us on behalf of the Appellants that the details of this explanation were simply not credible.
g.
On the 6
th
February 2009 Yusuf Ameeji returned to this country. He brought with him his affidavit, which he provided to SOCA officers.
h.
On the 16
th
February 2009 Yusuf Ameeji unexpectedly contacted his witness protection officers, saying he wanted to fly back to India because his father was very ill. He did in fact fly to India that day, from an airport in the Midlands.
i.
Also on the 16
th
February 2009, Yusuf Ameeji swore a second affidavit, confirming his earlier one, giving details of another part of his evidence about Asif Bhiki which he now declared to have been untrue, and asserting that his statement to the court had been induced by a SOCA officer who “pressurised me and threatened me that if I did not give evidence in their favour they will put me in prison for a long term”. The affidavit ended with an assertion that it was made freely and without any pressure. Significantly, it also included this sentence: “I am willing to give evidence in the court again without any fear and favour”. This affidavit was sent via DHL, with no indication of the sender’s name, to the correct office of the Crown Prosecution Service, and to the solicitors acting for Asif Bhiki. The CPS disclosed it to other defence solicitors.
j.
The circumstances in which Yusuf Ameeji swore this second affidavit were later described in a statement by a solicitor who practises in east London and is a registered foreign lawyer. This solicitor said that Yusuf Ameeji came to his office and produced a pre-typed affidavit for him to sign. The solicitor satisfied himself as to Yusuf Ameeji’s identity, and noted that he did not appear to be under any form of duress. He further said in his statement “I do remember that when Mr Ameeji came to the premises he attested [sic] with a small Asian male who was aged about 40 years. This male remained outside the premises at all times. I also remember that Mr Ameeji was referred to me by other solicitors but I cannot recall which company”. Once again, we are bound to say that this strikes us as a remarkably bland account of what was surely an unusual and memorable episode in the professional life of a solicitor.
k.
We observe in passing that although the statement to which we have just referred was taken from the London solicitor by a SOCA officer, we reject the submission of Miss Radcliffe that the solicitor’s evidence had therefore “been tested by the Crown’s agents”.
l.
Three further features of this second affidavit must be mentioned. Firstly, it had been prepared in terms which not only referred to but also exhibited a copy of his first affidavit. Secondly, although Yusuf Ameeji flew out of the country later that day from an airport in the Midlands, and although the solicitor’s statement records that he produced a photocopy of his passport and explained that the passport itself was in Birmingham, he took the completed affidavit to a solicitor in east London in order to swear it. The prosecution pointed to the fact that the solicitor in question had his office in the part of east London where the Bhiki family lived. Thirdly, the completed document which he brought with him to that solicitor’s office was headed with the correct Court of Appeal reference number for the appeal of Asif Bhiki.
m.
On a number of occasions later in February Yusuf Ameeji spoke by phone from India to his witness protection officers. He reported that his father had died, and that he would not be able to return to the UK until after the necessary period of mourning. It is the appellants’ case that this was completely untrue, and that Yusuf Ameeji’s father is still alive to this day: we have seen some documents which purport to show that, though they are unsatisfactory in a number of respects.
n.
On six occasions in March and April 2009 flights were booked to enable Yusuf Ameeji to fly back from India. On each occasion he failed to board the flight, subsequently giving explanations to the general effect that his journey to the airport had been delayed and that he had missed the flight.
o.
It is relevant to note that on the 8
th
May 2009 the prosecution received from India, again via DHL, an affidavit sworn by the Appellant Soyeb Patel, who had by this time served his sentence and returned to India. The affidavit sought to exonerate the Appellant Asif Bikhi, and claimed that a part of Soyeb Patel’s evidence which had contradicted Asif Bikhi’s evidence on a particular point was incorrect. The prosecution submission was that this affidavit provided further support for the inference that some person or persons were seeking to manipulate evidence to the advantage of an appellant.
p.
On the 19
th
May 2009 Yusuf Ameeji made contact with his witness protection officers saying he wished to return to the UK and that there were “very bad people” in India.
q.
On the 9
th
November 2009 Yusuf Ameeji did fly back to this country. He was interviewed at length by SOCA agents about his two affidavits. He said, in very brief summary, that his evidence at trial had been true and that he had sworn his affidavits under pressure.
r.
On the day after those interviews he was told by a witness protection officer that he would have to leave a particular address. He responded by saying that what he had said in interview the previous day had been untrue. The prosecution submitted that this was no more than an angry reaction to some unwelcome news.
s.
On the 5
th
March 2010, about 6 weeks before this Court heard the applications for leave to appeal against conviction, Yusuf Ameeji swore a third affidavit, this time before a solicitor in Leicester. It confirmed the truth of his two previous affidavits, and asserted that in his November 2009 interviews he had been put under pressure and had not told the truth. Exhibited to it were copies of each of the two previous affidavits. A copy of this third affidavit was posted to the CPS: on the back of the envelope the sender was identified as Yusuf Ameeji, with an address in Leicester.
t.
The only information about the circumstances in which that affidavit was sworn was contained in a letter to Asif Bhiki’s solicitors dated the 22
nd
March 2010. It was on the letterhead of the relevant firm of solicitors in Leicester, though the author did not identify himself by name, initials or other reference. The author said he could “confirm, from my recollection, that Mr Ameeji attended our office on 5
th
March 2010 and presented a pre-prepared affidavit”. It is no doubt correct, as the letter went on to say, that “many people attend our offices and swear affidavits before us or have documents witnessed”. We repeat however that the number of persons who do so in order to admit to perjury must be small. We therefore take the same view of the adequacy of this letter as we do of the statements from the other two solicitors to whom we have referred.
32.
It will be apparent from that brief summary that there are two strands to the material referred to by the appellants as fresh evidence: material showing that for the purposes of immigration matters Yusuf Ameeji has said that he was promised assistance in obtaining leave to remain in this country in return for giving evidence for the prosecution; and material showing that since giving his evidence at trial he has on three occasions sworn affidavits asserting that he gave false evidence. We take the view that no distinction is to be drawn between those two strands in deciding the issues raised by this appeal.
33.
The submission of the appellants is that the overall effect of these matters is that Yusuf Ameeji is now so thoroughly discredited that it would be impossible for any jury to believe anything he said. The appellants submit that his evidence was of great importance to the prosecution case, in particular because it presented a coherent overall picture and filled gaps which would otherwise have existed in the prosecution’s evidence, and that the convictions cannot be regarded as safe.
34.
In response, the prosecution submit that the circumstances in which the affidavits were sworn indicate that some person or persons have been trying to manoeuvre matters to the unjust advantage of the Appellants. They submit that the affidavits should not be regarded as casting any real doubt on the veracity of Yusuf Ameeji’s evidence at trial. Their primary submission is that whereas the testimony at trial of Yusuf Ameeji was credible, his post-trial affidavits and other statements helpful to the appellants are not. In the alternative, they submit firstly, that the jury in any event heard a number of substantial challenges to Yusuf Ameeji’s credibility in cross-examination, and that “more of the same” would not have caused the jury to take a different view of his reliability; or secondly, that the convictions are safe even if Yusuf Ameeji’s evidence were regarded as wholly discredited, because the other evidence adduced by the prosecution was sufficient for the jury to convict each of the appellants.
35.
We start with first principles.
Section 23 of the Criminal Appeal Act 1968
(“
the 1968 Act
”) gives this Court the power, if it is thought necessary or expedient in the interests of justice, to receive any evidence which was not adduced in the proceedings below. By s 23(2):
“The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to—
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
36.
There are two unusual features of the application made to us to receive fresh evidence in this case. The first is that there is no application for permission to call any witness before us: neither Yusuf Ameeji himself, nor even any of the solicitors before whom he swore his three affidavits. We are invited simply to look at the various documents to which we have briefly referred. So far as Yusuf Ameeji is concerned, submissions were made to us to the effect that at least some of the appellants were expecting him to be called as a witness before us by the prosecution, and that they wished that to happen so that they could cross-examine him. However, we were shown the relevant correspondence which was said to give rise to that expectation, and it seems to us that this submission is based on a misunderstanding. To put it at its lowest, there is nothing in the correspondence which states that the prosecution either would call Yusuf Ameeji or would ensure his attendance. Although at least one solicitor did assert that he was required to give evidence, the CPS made it clear that it was for the solicitor to make “the necessary application” to the Court. Thus, if any appellant really wished to call him, or to have him available at court with a view to inviting the Court to call him, the position (to such extent as it should ever have been in doubt) was made clear. Nothing has been put before us to suggest there would have been any practical obstacle to doing so. No such arrangements were made, despite the assertion in the second affidavit that Yusuf Ameeji was willing to give evidence.
37.
The second is that none of the three affidavits is relied upon by the appellants as being true: in what we may refer to as the lead skeleton argument, adopted and endorsed by other Appellants, Miss Radcliffe on behalf of Soyeb Patel made the position clear:
“The Appellant does not rely upon the oral and written statements of Ameeji to prove the truth of their contents, but rather to show that when the totality of his utterances are considered that this Court will be driven to conclude that he is inherently unreliable and that this undermines the totality of his evidence given at trial.”
38.
It is, of course, by no means unusual for this Court to be asked to receive fresh evidence of, or relating to, a retraction by a witness of his testimony at trial, and the giving by that witness of a new and different account of the relevant events. In such cases this Court is being invited to regard the new account as credible. But in this case no such invitation is extended. Instead, this Court is invited to conclude that nothing Yusuf Ameeji has said, or may say in the future, about these appellants is capable of being believed by a jury. We are invited to reach that conclusion on the basis of looking at the documents to which we have referred, and no more. We are, it seems to us, being asked to focus on the fact that differing accounts have been given by Yusuf Ameeji, without being given any opportunity to hear evidence and cross-examination as to the reasons why he has given mutually-contradictory statements. Taking an entirely hypothetical situation, simply to illustrate the position and not intended to be reflective of this case, it is not difficult to visualise circumstances in which a witness makes a second statement which undoubtedly contradicts his first, but does so at gunpoint: the fact of the inconsistency is not, of itself, sufficient.
39.
Counsel for the appellants were not able to identify any reported case in which the approach for which they contend has been adopted by this Court. Some reliance was placed on
R v Ishtiaq Ahmed
[2002] EWCA Crim 2781
, but in our view that case – in which a witness who had made post-trial statements retracting her testimony at trial did in fact give evidence before this Court, and explained in convincing terms that she had made her later statements as a result of threats or blackmail – cannot assist the appellants. On the contrary, it serves to highlight the importance of this Court having the benefit of examination and cross-examination of the relevant witness when making an assessment of the apparent credibility of fresh evidence. The Court is, after all, specifically enjoined by s. 23(2)(a) of
the 1968 Act
to focus upon whether what is described as the fresh evidence is capable of belief.
40.
We do not go so far as to say that such an approach could never be adopted by this Court, though we cannot at present envisage the wholly exceptional circumstances in which that might be done if only so that the issue of credibility can be tested. In the present case, however, we regard the course we are asked to take as wholly unsatisfactory. We have said enough to indicate that each of the three affidavits was sworn in circumstances which give rise to considerable suspicion, and which cry out for explanation. No such explanation has even been offered. No application has been made by any appellant that Yusuf Ameeji be called before us, even though in one of his affidavits he declared himself willing to give evidence in support of these appeals. Neither has there been an application to call even one of the three solicitors (two of them practising in this country) who might have been able to shed some light on those suspicious circumstances, but whose statements fail to provide the necessary illumination. We reject the submissions to the effect that those suspicious circumstances should be regarded as confirming Yusuf Ameeji’s unreliability: on the contrary, we regard them as pointing more probably to manipulation of his evidence by some person or persons seeking improperly to assist one or more of these appellants. If there be a satisfactory explanation for the suspicious circumstances, this Court has simply not been provided with it.
41.
Although counsel for the appellants have referred to the material which we have summarised above as “the fresh evidence”, and we have necessarily considered that material in order to evaluate the submissions of the parties, the reality of these appeals is that this Court is not being asked to find any fresh evidence capable of belief. The fact that Yusuf Ameeji has made contradictory statements, including written statements on oath to the effect that his oral testimony at trial was untrue, is clear; but the appellants do not submit that the statements admitting to perjury are themselves true. Indeed, as Miss Radcliffe made clear in her oral submissions, it is not even contended on behalf of the Appellants that Yusuf Ameeji was telling the truth when he gave instructions to his immigration solicitors that his evidence as a prosecution witness had been obtained by a promise of indefinite leave to remain in this country. The testimony at trial of Yusuf Ameeji lasted a number of days, and was of course subjected to cross-examination before the jury, and he was accused of having various motives for lying. The appellants now seek to undermine that testimony by putting before this Court material which is
not
said to be capable of belief, even though some of it is in the form of sworn affidavits, and which is presented to this Court in a way which avoids any possibility of detailed investigation or assessment.
42.
In our judgment, and having regard to the manner in which the post-trial material relied on as discrediting Yusuf Ameeji and as supporting the appellants’ cases has been put before us, there is nothing in that material which is capable of belief. It follows that there is nothing in the material which may afford any ground for allowing any of these appeals. We do not find it either necessary or expedient in the interests of justice to receive material which, had leave been sought to call it as evidence in the usual way, could have been tested before us. We therefore decline to exercise our power under s23 of
the 1968 Act
to receive any of this material.
43.
We add this. The circumstances of criminal litigation are of course infinitely variable, and each case must and will be considered on its merits: that is why leave was properly given in this case, so that careful consideration could be given to the submission that these appellants have been the victims of unjust convictions. But this Court will always be astute to the risk of post-trial manipulation of any witness (and particularly one of significance) who may by one means or another be persuaded to assert after the event that his testimony at trial was untrue. Without impugning any individual appellant, it is important that it is generally appreciated that the Court is most unlikely to be persuaded by an appeal based upon an approach similar to that which has been adopted in this case.
44.
It follows from what we have said that the first and principal ground of appeal fails. In the circumstances it is not necessary for us to consider the alternative ways in which, if our decision on the fresh evidence point had been different, the Crown would have sought to uphold the convictions. We merely observe that the familiar authority of
R v Pendleton
[2002] 1 Cr App R 34
would have presented a substantial difficulty for at least some of the Crown’s arguments.
45.
As to the second ground of appeal, it is sufficient to say that in our judgment the summing up by the learned trial judge was correct in law and contained a sufficient warning to the jury of the need for caution when assessing the credibility and reliability of Yusuf Ameeji’s evidence. We accept Mr Herbert’s submission on behalf of the Crown that the direction was adequate in the circumstances of this case (as, when granting leave, the full Court envisaged). In any event, the jury knew that Yusuf Ameeji had himself been convicted of offences relating to his illegal entry into this country, and had admittedly told many lies to the authorities in order to come to this country and remain here; the challenges to his credibility were based on grounds which were easily understood; and the possibility that he might have interests of his own to serve was obvious. We have considered the terms of the alternative direction which Miss Radcliffe helpfully drafted to support her submission as to the inadequacy of the direction in fact given by the judge. Whilst the proposed alternative is somewhat fuller than that which was given, and in particular is explicit in mentioning a possible motive for lying of fear of prosecution as a conspirator, we are not persuaded that demonstrates that the approach of the judge was wrong in law or that it would have caused the jury to take a different view of Yusuf Ameeji. We are satisfied that the jury can have been no doubt about the need to reflect carefully before accepting all or any part of Yusuf Ameeji’s evidence. They were entitled, having done so, to accept him as a witness of truth. We are not persuaded that the terms of the judge’s direction give rise to any doubt as to the safety of these convictions. This second ground of appeal accordingly also fails.
46.
We add, simply for completeness, that not all the jury’s verdicts were returned on the same day, that not all who were convicted were directly implicated by Yusuf Ameeji, and that one defendant was acquitted. It may be thought that those facts support the view that the jury did, as one would expect, approach their task conscientiously, and weighed the totality of the evidence with care before coming to their decisions. For those reasons each of these appeals against conviction is dismissed.
47.
We turn to the applications by Asif Bhiki, Sajid Bhiki and Sikander Patel for leave to appeal against their sentences. Each of the Bhiki brothers was sentenced to 5 years’ imprisonment, which was also the sentence passed on Soyeb Patel and Asif Patel. Sikander Patel was sentenced to 3 years 6 months’ imprisonment. That was because the judge in his sentencing remarks expressly accepted, having heard all the evidence, that Sikander Patel was less involved than the other defendants, and indeed less involved than the judge had initially thought.
48.
The grounds of appeal put forward by these three Appellants differ, but they have common features. It is submitted that the learned judge wrongly assessed, and unduly elevated, the role of each applicant in the conspiracy; that he passed sentences which were manifestly excessive having regard to the true criminality of the applicant concerned; and that the sentences were excessive when compared with others, in particular when compared with the sentence of 2 years 6 months passed on Shabbir Patel, who pleaded guilty but who is said to have been more seriously involved than each of the applicants.
49.
All those convicted of the conspiracy played their parts in a sophisticated, wide-ranging and well-organised criminal operation which continued for a period of several years and resulted in a substantial number of persons illegally entering this country. They did so for financial reward. The seriousness of the case as a whole is obvious, and the trial judge was the person best placed to assess the role and criminality of individual conspirators. It must be remembered that he had presided over not only the lengthy trial of these appellants but also the previous trial of others accused of the same conspiracy. That fact presents, in our judgment, an insuperable obstacle to each of these applications. Having considered the individual grounds of appeal against sentence, we are not persuaded that any basis has been provided on which we in this Court would be entitled, still less required, to go behind the assessments made by the judge. If Shabbir Patel was fortunate in his sentence – as to which we make no comment – that good fortune may well have been a product of his having the courage to plead guilty, and it affords no basis for regarding any of these sentences as unduly severe. We are not persuaded that any of the sentences was manifestly excessive: indeed, we do not accept that they could be regarded as excessive at all. Each of the renewed applications for leave to appeal against sentence is accordingly refused.