R v Schlesinger; R v Dunk; R v Atlantic Commercial Ltd (United Kingdom)
R v Schlesinger; R v Dunk; R v Atlantic Commercial Ltd
COURT OF APPEAL (CRIMINAL DIVISION)
 Crim LR 137, (Transcript: John Larking)
HEARING-DATES: 28 July 1994
28 July 1994
G Carey QC, R O’Sullivan and M Evans for the Appellants; A Arlidge QC and D Day for the Crown
PANEL: LORD TAYLOR CJ, OGNALL, GAGE JJ
JUDGMENTBY-1: LORD TAYLOR CJ
LORD TAYLOR CJ (reading the judgment of the Court): On 4 November 1985, at the Central Criminal Court, these three appellants were arraigned on an indictment charging two offences of exporting arms to Iraq illegally. Count 1 charged Dunk and the appellant Company together with others with being knowingly concerned in the exportation of arms with the intent to evade the prohibition thereon imposed by the Export of Goods (Control) Order 1978. Both Dunk and the Company pleaded guilty.
Count 2 charged all three appellants together with others with being knowingly concerned in the attempted exportation of arms with intent to evade the prohibition thereon imposed by the Export of Goods (Control) Order 1981. All three appellants pleaded guilty to that offence. They were sentenced as follows: Schlesinger was fined #3,000 on count 2. Dunk was fined #2,500 on count 1 and #10,000 on count 2. He was also ordered to pay #5,000 towards the prosecution costs. The company was fined #2,500 on count 1 and #5,000 on count 2. It too, was ordered to pay #5,000 towards the prosecution costs.
The appellant Dunk is a director of the defendant Company, Atlantic Commercial (UK) Limited, whose business is described as Defence Consultants. The appellant Schlesinger described himself as a consultant. The first count concerned a small consignment of arms manufactured by the Sterling Armament Company Limited, said to be samples, which were exported from the UK in 1982 under arrangements made by the appellant Dunk and the appellant Company. The consignment had been ordered and paid for by the Government of Iraq. Export of arms to Iraq was prohibited at the relevant time by the Export of Goods (Control) Order 1978. Despite the Iraqi order and payment, the goods were said to be destined for the Sudan. An End User Certificate (EUC) to that effect was provided to the Authorities. In fact, the transport of these samples from the United Kingdom was by a chequered route. They were sent on 24 April from the UK to Lisbon. On 23 May they went from Lisbon to Amsterdam. On 19 July, they went from Amsterdam back to Lisbon. Finally, on 27 July, they were transported from Lisbon to Iraq. The appellant Dunk admitted in interview that he went to Lisbon in May and was responsible for the samples going eventually to Iraq. On 14 June 1982, the appellant Dunk wrote a letter to one Bianco, the sales director of Sterling (who was also convicted of an offence) which began as follows:
“Referring to the order that you sent to Heathrow of samples for Khartoum (!), we believe they may arrive this week at their final destination”.
The second count related to a later consignment of 200 Sterling 9mm. machine guns plus ammunition and ancillaries. They were awaiting shipment from Greenwich to Aquaba when they were seized by Customs and Excise on or about 18 February 1983. Again, these armaments had been ordered by Iraq and were paid for by Iraq. This time, it was said that the destination was Jordan and the EUC so stated. As to this, the appellant Dunk, on 14 June 1982, wrote to Sterling as follows:
“Because of the difficulty in obtaining an export licence for Iraq, the Jordanian Embassy agreed to purchase the goods on their behalf, but there has been apparently some trouble about the size of the reward to be paid by Iraq for the issue by Jordan of an EUC and this has delayed matters”.
Later in the same letter, the appellant Dunk said he would be sending the appellant Schlesinger to Sterling to deal with the terms.
Following the seizure of the consignment of 200 machine guns, the Customs authorities visited the homes and office of the appellants. Both Mr Dunk and Mr Schlesinger were interviewed. Mr Dunk admitted that the samples had gone directly to Iraq, that he knew this at the time and that he had been involved in the transport. He had hoped to receive a subsequent order for 2,000 weapons as a result of the shipment.
In the course of his interview, Schlesinger was asked about the count concerning him. The following exchange occurred:
“Customs Officer:Are you saying that Major Dunk did not discuss the 200 mark V’s with you?
Schlesinger:Yes, only as a Jordanian transaction.
Customs Officer:Did you ever discuss it as an Iraqi deal?
Schlesinger:Not really. We joke about these things. My reaction was, yes, a Jordanian transaction but only as a smoke screen. We know everything that goes to Jordan ends in Iraq. Who are we to judge?”
Following the seizure and the interview, there was considerable activity which it is unnecessary to set out in detail, involving correspondence and meetings between the appellant Dunk, his solicitor and the Embassies of both Jordan and Iraq. It is sufficient to say that there emerged a story that although Iraq had ordered and was paying for the two consignments of armaments, they were doing so in order to make gifts to Sudan and Jordan respectively. This, so the story ran, was nothing out of the ordinary. The gifts were being made, to quote one of Mr Dunk’s letters, as a “little present as a token of their continuing friendship etc”. Sir Basil Rhodes, Mr Dunk’s solicitor was assured by the Iraqi Embassy that the first consignment was a present for the Sudan and was assured by both the Iraqi and the Jordanian Embassies that the second consignment was similarly a present to the Jordanian army. Further assurances were given in January/February, July and October 1985 that witnesses would be made available from both Embassies to confirm this story in Court.
The appellants’ trial was fixed for 4 November 1985. It was only when Sir Basil Rhodes sought to take statements from the promised witnesses that he found a change of attitude at the Embassies. This culminated in his being told that authority to provide the witnesses had been withdrawn.
The appellants had, at a pre-trial review on 30 September 1985, clearly indicated that they would be contesting the case, the basis on which they would be doing so and that they intended to rely on witnesses from the two Embassies.
On the day of the trial, the appellants, who were represented by very experienced leading counsel, found themselves faced with a formidable prosecution case as summarised above, and bereft of the witnesses upon whom they had intended to rely. It seems that an indication was given to them that whether they pleaded guilty or were convicted there would be no custodial sentence. In those circumstances, the appellants pleaded guilty and were fined the amounts specified above.
The defence were aware before the trial that Customs and Excise officers had visited the Embassies on 18 February 1983. Inquiries as to what transpired on that occasion were ultimately answered by Customs and Excise who admitted that on 21 February 1983, following the visit, the Iranian Embassy told their officers that the 200 machine guns were a gift to Jordan. However, it was only as a result of evidence to the Scott Inquiry on 15 June 1993, eight years after the trial, that it emerged there had been further contact with the Embassies shortly before the trial on the initiative of both Customs and Excise and the Foreign and Commonwealth Office (FCO).
The documents before this Court which were not disclosed at the time of trial, include the following. On 25 February 1983, Mr M F Knox, Assistant Chief Investigation Officer of H M Customs and Excise wrote to Mr Wogan of the Middle East Department of the FCO. The letter began:
“You asked for a copy of my officers reports concerning their visits to the Iraqi and Jordanian Embassies. These are enclosed.
You will see that, given time, the two Embassies have put their heads together and produced a united front with a story which is neither credible nor supported by the documentary and oral evidence we now possess.
My only concern is the possible effect this story may have in future criminal proceedings should the defence lawyers decide to obtain the agreement of Embassy personnel to appear as witnesses. It may be prudent for us to confront the Ambassadors with the contradictory evidence in our possession before such an eventuality becomes fact in the hope that this will deter them from taking a potentially embarrassing course of action”.
There is an internal minute dated 1 October 1985 from Mr G H Boyce of the Middle East Department of the FCO to Mr Harding (now deceased) referring to information from a Mr Cassey of Customs & Excise. Paragraph 2 of the minute reads:
“Customs & Excise said that the evidence so far presented by the Embassy personnel was conflicting. If they waive their immunity and were prepared to stand as witnesses, then they would have to withstand cross-examination as well. Given H M Customs & Excise belief that the result of this cross-examination could be potentially embarrassing to both Embassies, it was Mr Cassey’s view that the interests of the Embassies would not be served by members of the Embassy staff agreeing to appear for the defence”.
A copy of that minute was sent to Mr Pigott of the Near East and North Africa Department of the FCO (NENAD) who annotated it with a minute in his own hand, addressed to Mr Nixon, also of NENAD. It began:
“MED are contemplating having an informal word with the Iraqi Ambassador to point out the possible pitfalls of waiving immunity”.
Next, there was another minute from Mr Pigott in his own hand to Mr Nixon dated 2 October. The relevant part reads as follows:
“MED have had an informal word with the Iraqi Ambassador to say (a) this is none of the FCO’s business, but (b) it would perhaps be best if the Ambassador did not agree to waive immunity.
I am not sure that we need to make the same noises to the Jordanians….but if you think it appropriate I could have a word with counsellor Kadi.”
Mr Nixon’s response to that is appended in his handwriting and reads:
I confess to innocent reluctance to connive at impeding the course of justice! But you might gently enquire when talking to Kadi on other business”.
The document is further annotated with a comment, apparently in Mr Pigott’s writing:
“Spoke to Mr Kadi who was grateful and agreed with C and E’s advice”.
By agreement there has been put before us written evidence from the authors of some of the minutes quoted above. Mr Pigott, in answer to a question from the Inquiry: “Do you accept that, in so doing you are conniving at impeding the course of justice?” Reply:
“I accept that this would be a reasonable construction to place on my action, if, by so doing, I would be frustrating the intention of the prosecuting authority to bring a prosecution or secure a conviction. That, however, was not my intention”.
(Exactly so! we would interpolate).
“I repeat that, in passing on that message at the time, I was acting in good faith. After all, I was acting at the behest of the prosecuting authority who, I might reasonably have concluded, had cleared their lines from the legal standpoint. There is no question of my seeking to impede the course of justice”.
Again, with agreement, we have before us the evidence of Sir Stephen Egerton given to the Scott Inquiry on 15 June 1993. Sir Stephen was at the relevant time Under Secretary for the Middle East. After the minutes summarised above had been drawn to his attention, Lord Justice Scott put it to Sir Stephen that what happened was disgraceful and asked “Do you find anything to object to in that adjective?” Sir Stephen replied: “I would say it was a bad show”.
We prefer the plain adjective used by Lord Justice Scott. What was happening was that senior officers in the FCO at the behest of the prosecuting authority, Customs and Excise, were urging the foreign embassies to claim diplomatic immunity and thereby deprive the defendants in a criminal trial of witnesses they wished to call and had been promised would be available. It is clear that their efforts were successful resulting in the defendants being deprived of witnesses they wished to call.
In our view, it is nothing to the point that the story which the Embassies had been prepared to support would take a lot of swallowing. That was a matter for the jury. Had witnesses been available to support that story, it may well be that cross-examination would have discredited them and sunk the defence without trace. But we have no doubt that by seeking to put those witnesses in baulk and succeeding in doing so, those involved were improperly interfering with the course of justice. In addition, the failure to disclose what had taken place kept the defence in ignorance of the impropriety and thus prevented them from raising the matter with the trial judge.
Mr Arlidge QC, on behalf of the Crown has, as one would expect, adopted a frank and realistic approach. He concedes that the conduct of the prosecuting authority and the FCO were capable of being an abuse of the process of the Court. He said: “It is not my role to defend the indefensible”. He further concedes that had counsel for the Crown known of the approach by the FCO to the Embassies at the time of the trial, they would have disclosed that material to the defence. Nevertheless, he seeks to resist this appeal.
Mr Carey submits that there was here, an abuse of process arising from two separate and serious improprieties on the part of the prosecuting authorities. First, he submits that Customs and Excise through the FCO deliberately interfered with potential defence witnesses or manipulated affairs through the foreign embassies so as to prevent defence witnesses, who would otherwise have given evidence in the appellants favour, from being allowed to come to Court at all. They thereby deliberately prevented the appellants from having a fair trial.
Quite separately, the approaches which were made to the embassies and the documents which have been summarised above were not disclosed to the defence so that those acting for the appellants were wholly unaware at the time of the trial and for eight years afterwards why the witnesses, upon whom they had intended to rely, were not available. Had the defence known what had in fact happened at the time of trial they could have drawn the matter to the judge’s attention. It is submitted that the conduct of the prosecution had been such that the judge would in all probability have stayed the proceedings before arraignment as an abuse of process.
It was common ground in the argument before us, that in regard to abuse of process, the Court has recognised two different categories. First, the Court may stop a prosecution for abuse of process if there has been prejudice to the defendant or a fair trial cannot be held. Thus, in R v Derby Crown Court ex parte Brooks 80 Cr App Rep 164, at page 168, Sir Roger Ormrod said:
“The power to stop a prosecution arises only when it is an abuse of process of the Court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the Court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability, the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable … the ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and to the prosecution….”
Secondly, however, there are cases where the conduct of the prosecution has been such as to justify a stay of proceedings for abuse of process regardless of whether a fair trial might still be possible. Thus in R v Horseferry Road Magistrates Court ex parte Bennett  1 AC 42,  3 All ER 138 Lord Griffiths, after referring to ex parte Brooks (supra) and other cases, went on at page 61 H of the former report to say:
“Your Lordships are now invited to extend the concept of abuse of process a stage further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures. If the Court is to have the power to interfere with the prosecution in the present circumstances, it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.
My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law……if it comes to the attention of the Court that there has been a serious abuse of power, it should, in my view, express its disapproval by refusing to act upon it.”
That was a case in which the Authorities had brought the appellant back to this country to face trial in defiance of the laws of the State where he was found, in breach of international law and in disregard of available extradition processes.
We should cite two further passages from ex parte Bennett. At page 62 F, Lord Griffiths said:
“The Courts, of course, have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution”.
Lord Lowry, at page 74 G said:
“I consider that a Court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the Court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a Court to try a person who is charged before it with an offence which the Court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the Court’s disapproval of official conduct. Accordingly, if the prosecuting authorities had been guilty of culpable delay but the prospect of a fair trial has not been prejudiced, the Court ought not to stay the proceedings merely ‘pour encourager les autres’.”
Again, in R v Croydon Justices ex parte Dean  QB 769, 98 Cr App Rep 76, the Divisional Court quashed a committal for trial where the defendant had been given to understand he would not be prosecuted but would be used as a prosecution witness. After assisting the police for some five weeks, he was in fact prosecuted. Although it might have been possible to hold a fair trial by excluding any admissions he had made during the five-week period, the Court decided the committal should be quashed. Staughton LJ said at page 84 of the latter report:
“In my judgment, particularly having regard to the fact that Dean was only 17 at the time (although not, as he has since admitted, a stranger to crime), it was clearly an abuse of process for him to be prosecuted subsequently. The impression created was not dispelled for over five weeks, during which period he gave repeated assistance to the police. This case can, I think, be regarded as quite exceptional. The Justices were bound to treat it as one of abuse of process”.
Mr Carey submits that in the present case, the conduct of the prosecution was such that the Court would have stayed the proceedings without more, had it known of what had occurred. The proceedings were not stayed, he submits, because of the further impropriety that the prosecution did not disclose to the defence that which would have enabled them to make the application. Therefore the convictions should be quashed without consideration of prejudice.
Secondly, Mr Carey submits that the conduct of the prosecution did in fact prejudice the appellants, so that if that had been a necessary ingredient here, the appellants can establish it. The prejudice lies first, as already indicated, in the inability of the appellants advisers to make an application to stay the proceedings because of the non-disclosure by the prosecution of what had occurred. Secondly, although it is true that the appellants pleaded guilty, it is clear that they had intended to contest the case, that they only decided to plead guilty when the evidence they were to rely upon failed to materialise and when it had been indicated to them that there would be no custodial sentence. Mr Carey submits that they were prejudiced in that they were deprived of the opportunity to consider their pleas in full knowledge and appreciation of the whole of the facts. It may well be that, deprived of the expected evidence from the embassies, the prospects of a successful defence were so diminished that, balancing the cost of contesting the case unsuccessfully against the probable fines to be imposed, the decision was made to plead guilty which would otherwise not have been made.
Mr Arlidge submitted that the class of case in which the court would grant a stay for abuse of process without prejudice being shown or where a fair trial could still take place, is very small and specifically confined. He said it consisted only of cases in which the defendant could not have been brought before the Court at all had not the prosecution been guilty of impropriety. Thus, in Bennett  1 AC 42,  3 All ER 138, the defendant would not have been brought before an English Court had he not been kidnapped improperly in South Africa. In ex parte Dean  QB 769, 98 Cr App Rep 76, the defendant would not have been brought before the Court had not the prosecution reneged on their promise to him. However, although those two specific cases can be brought under the small umbrella erected by Mr Arlidge, we do not consider the class can be so confined. The dicta we have cited from Bennett are couched in wide terms of principle which do not justify Mr Arlidge’s narrow test.
Mr Arlidge also reminded us of the warning given by Lord Lane CJ in Attorney General’s Reference (No.1 of 1990)  1 QB 630,  3 All ER 169 at page 643 G of the former report:
“Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust”.
However, in our judgment the machinations in this case to prevent witnesses for the defence being available coupled with the non-disclosure of what had been done, constituted such an interference with the justice process as to amount to an abuse of it. We have little doubt that if the trial judge had been told witnesses for the defence had been prevented from coming to Court at the initiative of the prosecuting authority, it is highly likely that he would have stayed the proceedings unless there was any possible way of enabling those witnesses to attend after all. Even if the story the witnesses would have supported was one the jury would have been likely to reject, it was the appellants’ right to put it forward if they wished. It was for the Court and in particular a jury, not an assistant Chief Investigation Officer of Customs and Excise to decide whether the story was (in his words) “neither credible nor supported by the documentary and oral evidence we now possess”.
If we are wrong in regarding this case as one which involved an abuse of process regardless of whether a fair trial could still take place, we consider Mr Carey’s second argument is sound. There was prejudice here. Whilst the Court is usually slow to set aside pleas of guilty which have been made unequivocally, where they have been made in ignorance of malpractice having operated to the defendants’ disadvantage, different considerations may apply. We consider Mr Carey’s exposition of the prejudice in the present case is well founded. Accordingly on that ground, if necessary, we would again hold that there was an abuse of process.
For these reasons, we came to the conclusion that the appeals of each of the appellants must be allowed and we quashed the convictions.
Appeals allowed, convictions quashed.