Rafiq & Anor v R.

A conviction expressly dependent on a co-defendant’s guilt cannot stand once the prerequisite conviction is quashed, where the Crown case and jury directions made that dependency necessary.

A conspiracy conviction is unsafe where undisclosed material and fresh evidence could reasonably support the conclusion that the supposed supplier did not genuinely agree to a fraudulent importation. There may then have been no agreement to commit the charged crime.

Under section 3 of the Criminal Appeal Act 1968, substitution of an alternative conviction requires the statutory conditions to be met and remains discretionary. An offence is not impliedly included in a conspiracy merely because conspirators commonly commit it as a matter of fact.

Mohammed Rafiq was convicted at Birmingham Crown Court in 1994 of conspiracy to evade the prohibition on importing heroin. His co-defendant’s conviction had subsequently been quashed for material non-disclosure: [2007] EWCA Crim 307. The trial judge had directed the jury to consider the co-defendant’s case first and to consider Rafiq’s guilt only if sure of that co-defendant’s guilt.

Altaf Hussain was convicted at Isleworth Crown Court in 1988 of complicity in an offence under section 170(2) of the Customs and Excise Management Act 1979. His appeal followed a reference by the Criminal Cases Review Commission. Fresh evidence and undisclosed material concerning the participating informant and the alleged Pakistani supplier called into question whether there had been a genuine plan to import heroin unlawfully.

The court also considered the Crown’s request to substitute convictions for attempted evasion or conspiracy to supply heroin.

1. Both appeals were allowed and the convictions were quashed. Rafiq’s conviction could not stand. The Crown case and the jury directions made the guilt of his co-defendant a necessary preliminary to any finding against him. Once that co-defendant’s conviction was quashed because of non-disclosure, Rafiq’s conviction necessarily had to be quashed.
2. Hussain’s conviction was unsafe. The trial had been left to the jury on the basis that conviction required a genuine plan to import heroin unlawfully. The undisclosed material and fresh evidence could have supported a finding that the alleged supplier, Shenwari, knew that the drugs would be brought into England in a controlled delivery and was therefore not a genuine supplier. A jury might consequently have found that Shenwari had not agreed to a fraudulent evasion and might have accepted Hussain’s account that he was the victim of a set-up.
3. The court distinguished Yip Chiu-Chung v The Queen (1994) 99 Cr. App. R. 406 (PC), whose statutory offence required only export without a licence. It expressed doubts about the assumption discussed in R. v. Latif and Shahzad [1996] 1WLR 104 (HL) that an officer participating in a controlled operation committed an offence under section 170(2), but did not decide that issue. The respondent correctly conceded that a supplier who knew the delivery would occur under official control could not be knowingly concerned in a fraudulent evasion merely because intended purchasers might seek drugs.
4. The court refused substitution under section 3 of the Criminal Appeal Act 1968. The jury could not be said necessarily to have rejected Hussain’s account that, after learning of the drugs, he was play acting rather than intending to evade the prohibition or make an onward supply. In any event, substitution was discretionary and would have been unfair after material non-disclosure where the proposed prosecution case differed fundamentally from the case tried.
5. The court added, although it was not necessary to decide the point, that the first stage of section 3 concerns the indictment rather than the evidence. A substantive offence is not impliedly included in a conspiracy solely because the substantive offence will commonly be committed in fact. The court therefore inclined against treating attempted evasion or conspiracy to supply as included offences on this indictment.

• Court of Appeal (Criminal Division) Allowed both appeals. Rafiq was granted an extension of time to renew his application for leave to appeal, and his conviction was quashed. Hussain’s appeal, following a Criminal Cases Review Commission reference, was allowed and his conviction was quashed without substitution.
• Crown Court at Birmingham Rafiq was convicted on 26 September 1994 of conspiracy to evade the prohibition on the importation of heroin.
• Crown Court at Isleworth Hussain was convicted on 3 June 1988 of complicity in contravening section 170(2) of the Customs and Excise Management Act 1979.