R v Latif

The House dismissed the conjoined appeals against conviction. The court held that entrapment is not a standalone defence under English law but that a judge has a discretion to stay proceedings where conduct by law enforcement would affront the public conscience or make a fair trial impossible. The judge had not erred in refusing a stay: the defendants had taken the initiative in the criminal scheme and the conduct of the customs officers, though deceptive and arguably criminal, did not reach the threshold of an affront to public conscience.

The court also upheld the judge's ruling that evidence obtained by subterfuge was admissible under section 78 of the Police and Criminal Evidence Act 1984 because the judge found no prejudice to the defendant's ability to conduct a defence. Finally, the conviction under section 170(2) of the Customs and Excise Management Act 1979 was sustainable on the basis that the defendants were guilty of an attempted evasion of the prohibition on importation: where the indictment described evasion the attempt can be treated as falling within the single offence created by section 170(2).

Background and parties: The appellants, Latif and Shahzad, were convicted at the Crown Court at Southwark for being knowingly concerned in the fraudulent evasion of the prohibition on importation of a controlled drug contrary to section 170(2) of the Customs and Excise Management Act 1979. The Crown case involved an informer and Customs and Excise officers who, by subterfuge, facilitated the arrival in the United Kingdom of packages said to contain heroin. The defendants maintained they believed they were dealing in gold.

Procedural posture: After conviction (Latif sentenced to 16 years, Shahzad to 20 years) the defendants appealed. They challenged three trial rulings: (1) refusal to stay proceedings as an abuse of process arising from entrapment and the conduct of the informer and customs officers, (2) refusal to exclude evidence under section 78 of PACE, and (3) refusal of a submission of no case to answer on count 1. The Court of Appeal dismissed the appeals and the House of Lords (Appellate Committee) heard conjoined appeals.

Relief sought: The appellants sought reversal of convictions, a stay of proceedings for abuse of process, exclusion of evidence under section 78 PACE, and a finding of no case to answer.

Issues framed by the court: (i) Whether the conduct of the informer and customs officers amounted to entrapment or abuse of process requiring a stay; (ii) whether evidence obtained by subterfuge should be excluded under section 78 PACE; (iii) whether, on the prosecution evidence, the appellants were properly convicted under section 170(2) CEMA or at least of an attempted evasion.

Court's reasoning: The court reiterated that entrapment is not a defence but that the courts have a discretion to stay for abuse where necessary to protect the integrity of the criminal justice system, balancing the public interest in prosecuting serious crime against the need not to condone unacceptable state conduct. The judge had properly exercised that discretion: the defendants had been organisers in the heroin trade and had taken the initiative; any criminality by the customs officer was not so grave as to require a stay. On section 78 the judge found no prejudice to the defence and exclusion was not required. On the statutory offence, the House held that section 170(2) covers being knowingly concerned in either an evasion or an attempt at evasion; the facts plainly supported conviction for an attempted evasion, and no prejudice arose from the form of the indictment. The appeals were therefore dismissed.

Appeals dismissed. The House affirmed that entrapment is not a separate defence but that courts have a discretion to stay proceedings for abuse of process; the trial judge did not err in refusing a stay because defendants had taken the initiative and any misconduct by officers did not amount to an affront to public conscience. Evidence obtained by subterfuge was properly admitted under section 78 PACE (no unfairness to the defence). The conviction under section 170(2) CEMA was sustainable as the defendants at least committed an attempted evasion; any misdescription in the indictment did not prejudice the defendants and could be ignored.

Convictions at the Crown Court at Southwark (trial: February–March 1991). Appeal to the Court of Appeal (Criminal Division) — orders of 10 March 1994 — appeal dismissed. The Court of Appeal refused leave to appeal to the House but certified questions of law of public importance. The Appellate Committee of the House of Lords granted leave and dismissed the appeals on 18 January 1996.