Jisl, R. v

A conviction is not unsafe merely because cross-examination was lengthy or contained isolated improprieties. The appellate court must assess their real and cumulative effect on trial fairness and on the safety of the verdict.

A judge may structure a lengthy summing up by issues rather than witness order, provided the applicable law and each defence case are fairly presented. Under sections 23 and 26 of the Criminal Justice Act 1988, impracticability of obtaining a witness does not compel admission of that witness’s statement. The interests of justice may require exclusion where a crucial assertion cannot be tested. A guilty plea which substantially shortens a retrial can merit a substantial sentencing reduction.

Following a retrial at the Central Criminal Court before HHJ Dunn QC and a jury, Jan Jisl and Gungor Tekin were convicted of fraudulent evasion of a prohibition on the importation of goods. The offence concerned 139 packages containing diamorphine. Yucel Konakli pleaded guilty on re-arraignment.

Jisl and Tekin appealed their convictions. They challenged, among other matters, the fairness of Tekin’s cross-examination, the exclusion of a Turkish witness’s statement, and aspects of the summing up. Konakli appealed his 15-year sentence. The central question was whether any alleged errors rendered the convictions unsafe and whether Konakli had received sufficient credit for his plea.

1. The conviction appeals were dismissed. The court found no basis for concluding that either conviction was unsafe. Konakli’s appeal against sentence succeeded, and his sentence was reduced from 15 to 13 years’ imprisonment.

2. The length of Tekin’s cross-examination did not itself establish unfairness. The transcript showed that he was able to understand the case, challenge the questions and give the answers he wished. Although some individual questions were inappropriate or unduly strongly expressed, and one line of questioning improperly used a co-defendant’s interview record, those matters were promptly contained, caused no material prejudice and did not cumulatively undermine the trial.

3. The judge properly excluded Aktolun’s statement under sections 23 and 26 of the Criminal Justice Act 1988. It was impracticable to secure Aktolun’s attendance, but admission remained discretionary. The absence of cross-examination was significant because the statement gave only a superficial account of telephone calls central to the Crown case, and the witness could reasonably have been regarded as a conspirator.

4. The summing up was long but fairly structured. A judge may organise evidence by the critical issues rather than recount it in witness order. The jury received adequate directions on disputed statements read without cross-examination, observation evidence, inferences and lies. Minor inaccuracies in summarising evidence were immaterial.

5. Konakli’s plea, although late, materially shortened the retrial. Given the earlier quashing of his conviction, the reduction from the notional 16-year sentence to 15 years gave insufficient credit for that plea. A 13-year sentence was appropriate.

6. The court also reaffirmed the obiter case-management guidance in R v Chaaban [2003] EWCA Crim 1012. Trial judges must actively manage time and focus parties on the real issues, while preserving fairness to all participants. That guidance did not affect the safety of these convictions.

• Court of Appeal (Criminal Division) — in [2004] EWCA Crim 696, dismissed Jisl’s and Tekin’s appeals against conviction; allowed Konakli’s appeal against sentence and reduced his sentence to 13 years’ imprisonment.
• Central Criminal Court — following a retrial before HHJ Dunn QC and a jury, convicted Jisl and Tekin on 5 October 2001 of fraudulent evasion of a prohibition on importation. Konakli pleaded guilty on re-arraignment and received 15 years’ imprisonment.