R v Latif (R v Shahzad)

Entrapment is not a defence in English law. The court may nevertheless stay a prosecution where official misconduct makes a fair trial impossible or, after balancing the competing public interests, makes the prosecution an affront to the public conscience.

An actual evasion of an import prohibition requires an importation. A person who intends the full offence and performs acts beyond mere preparation may instead commit attempted evasion. A free, deliberate and informed intervention by another person acting independently may break the causal chain for the completed offence.

Where evasion and attempted evasion are alternative ways of committing one statutory offence, an indictment's misdescription may be disregarded if the accused's guilt of the alternative is undeniable and no prejudice has arisen.

The appellants were convicted of knowingly participating in the fraudulent evasion of the prohibition on importing diamorphine, contrary to section 170(2) of the Customs and Excise Management Act 1979. An informer and customs officers had facilitated the proposed transaction. A customs officer knowingly imported the drugs without a licence, and the appellants later attempted to collect substitute packages in London.

The trial judge refused to stay the proceedings for abuse of process, declined to exclude the prosecution evidence under section 78(1) of the Police and Criminal Evidence Act 1984, and rejected a submission of no case to answer. The Court of Appeal dismissed both appeals.

The conjoined appeals concerned whether the official conduct required a stay or exclusion of evidence and whether the facts established an actual or attempted evasion under section 170(2).

1. The appeals were dismissed unanimously. Lord Steyn delivered the leading speech. Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Mustill and Lord Hoffmann agreed with his reasons.

2. Per Lord Steyn, entrapment is not a defence under English law. A court may nevertheless stay proceedings even where a fair trial remains possible. The judge must balance the public interest in trying grave crime against the public interest in preserving the integrity of the criminal justice system. A stay is required where the official misconduct makes continuation an affront to the public conscience, consistently with R v Horseferry Road Magistrates' Court, Ex parte Bennett [1994] 1 AC 42.

   The trial judge had conducted the required balancing exercise. Shahzad was a willing organiser who initiated the proposed importation. The informer merely afforded him an opportunity, and Shahzad entered the jurisdiction voluntarily. Any criminality by the customs officer was venial by comparison and was not so unworthy or shameful that the prosecution affronted the public conscience.

3. Per Lord Steyn, the section 78(1) challenge also failed. The judge found that admission of the evidence caused no prejudice to the presentation of the defence. Once the abuse-of-process argument failed, counsel accepted that exclusion under section 78(1) could not be justified.

4. Per Lord Steyn, an actual evasion under section 170(2) of the Customs and Excise Management Act 1979 necessarily involves an importation. The Court of Appeal therefore went too far in treating any conduct directed and intended to lead to covert importation as a completed evasion. Its reasoning also failed to recognise that a completed offence may be committed through an innocent agent.

5. The customs officer imported the drugs deliberately, with full knowledge, for his own purposes and without acting in concert with Shahzad. His free, deliberate and informed intervention broke the causal chain. Shahzad was therefore not responsible for a completed evasion on that basis.

6. Shahzad was nevertheless plainly guilty of attempted evasion under section 170(2). He intended the completed offence and performed acts going beyond mere preparation, both by delivering the drugs in Pakistan for export and by trying to collect them in England. English courts had jurisdiction because the overseas attempt was directed at the United Kingdom, applying DPP v Stonehouse [1978] A.C. 55.

7. Section 170(2) created one offence capable of commission by evasion or attempted evasion. The indictment's description of an actual evasion could be disregarded because the same evidence and defence applied, the attempted evasion was undeniable, and no prejudice arose. Latif's participation in attempting to obtain the drugs for distribution was sufficient. Both convictions therefore stood.

1. House of Lords: The conjoined appeals were dismissed unanimously, and the Court of Appeal's orders were affirmed.
2. Court of Appeal (Criminal Division): On 10 March 1994, the court dismissed both appeals against conviction. It upheld the trial judge's rulings on abuse of process, exclusion under section 78(1) of the Police and Criminal Evidence Act 1984, and the submission of no case to answer. It refused leave to appeal but certified questions of law of public importance.
3. Crown Court at Southwark: The jury convicted both appellants under section 170(2) of the Customs and Excise Management Act 1979. The judge sentenced Latif to 16 years' imprisonment and Shahzad to 20 years' imprisonment.