Sami v R,

A conviction is not unsafe merely because a forensic decision carried risk. The question is whether counsel’s decision fell outside the range reasonably open to competent advocates and, if so, whether it undermined the safety of the conviction. A defendant who has given changing instructions cannot rely on an earlier proof to contend that an omitted fact was consistently advanced. Where a defence statement omits a material fact despite consistent instructions, the prosecution should be informed and the statement amended. Tactical decisions to disclose previous convictions or call a potentially damaging witness may remain competent where they follow a reasoned assessment of the evidence and the defence case.

The appellant was convicted at the Crown Court at Luton of conspiracies to import and supply diamorphine, arising from the attempted recovery of 230 kilograms of heroin concealed in a car imported from Pakistan. He received concurrent sentences of 19 years’ imprisonment.

He appealed against conviction on the basis that his trial counsel had acted incompetently by disclosing his previous convictions, failing to prevent an adverse inference based on his defence statement, and calling a co-defendant, Safder, as a witness. He also renewed an out-of-time application for permission to appeal against sentence. The central issues were whether the conduct of counsel rendered the convictions unsafe and whether the sentence properly reflected his role.

1. The appeal against conviction was dismissed. The prosecution case was strong. It included the appellant’s contacts with a conspirator, the arrangements for a low loader, the proposed delivery to premises connected with him, and the absence of a credible innocent explanation.
2. The correct question was whether the challenged decisions fell outside the range reasonably open to competent counsel and, if they did, whether they rendered the convictions unsafe. The decision to disclose the appellant’s old convictions was a legitimate tactical choice. It could demonstrate candour and emphasise that the present allegations were far more serious and different in character.
3. The adverse-inference direction based on the defence statement was proper. CPIA, section 6A required the defence to identify the factual matters on which it intended to rely. A fact omitted through error despite consistent instructions should be raised with the prosecution and the statement amended. The court found, however, that the appellant’s instructions about the telephone conversations had changed. Counsel could not properly represent his evidence about a non-runner as having been consistently advanced.
4. The decision to call Safder was finely balanced but competent. His evidence was needed to support the innocent explanation for the low-loader call. Counsel had assessed both the substantial prosecution evidence and the risks arising from Safder’s earlier evidence. Safder gave evidence supporting the appellant at the trial.
5. The court granted leave to appeal against sentence and allowed that appeal. Although the quantity of heroin required a substantial sentence, the appellant’s role was materially below that of the organiser who arranged the vehicle’s movement from its arrival in the United Kingdom. His lack of recent offending and substantial family responsibilities also mattered. Concurrent sentences of 19 years were manifestly excessive and were reduced to 14 years’ imprisonment on each count, concurrently.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed. Leave to appeal against sentence granted out of time, and the sentence appeal allowed by reducing the concurrent terms from 19 to 14 years’ imprisonment.
• Crown Court at Luton: The appellant was convicted of conspiracies to contravene section 170 of the Customs and Excise Management Act 1979 and to supply a class A controlled drug. He was sentenced to 19 years’ imprisonment on each count, concurrently.