A trial judge would stay criminal proceedings if, weighing countervailing considerations of policy and justice, he concluded in the exercise of his discretion a fair trial was not possible or there had been an abuse of process which amounted to an affront to the public conscience.
The House of Lords unanimously dismissed appeals by the appellants against their convictions of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to section 170(2) of the Customs and Excise Management Act 1979.
The appellant Shahzad approached H, a shopkeeper in Lahore, Pakistan who was a paid informer employed by the United States Drugs Enforcement Agency, and proposed an export of 20 kilograms of heroin valued at pounds 3.2m to the United Kingdom. They agreed that H would arrange a courier to carry it here, H would take delivery of it here and Shahzad would collect it and distribute it.
H gave the drugs he received from Shahzad in Lahore to a customs officer who brought them from Pakistan to England. H came to England and stayed in a hotel room under surveillance. When Shahzad arrived in England they discussed details of the delivery of the heroin and payment. The appellant Latif joined them. A man pretending to have possession of the heroin arrived. The appellants were arrested.
The appellants appealed against their convictions on the grounds that it was an abuse of process to institute criminal proceedings against them and that on the evidence they were not guilty of the offence under section 170(2).
David Robson QC and Mohammed Latif (Mian & Co) for Latif; Charles Bloom QC and Andrew Sharpe (Hird Killeen & Co, Birmingham) for Shahzad; Alan Moses QC and Seddon Cripps (Customs & Excise Solicitor) for the Crown.
Lord Steyn said that the starting-point when considering the issue of abuse of process was that entrapment was not a defence under English law. However Shahzad would probably not have committed the particular offence but for the conduct of H and the customs officer, which included criminal conduct.
This posed the perennial dilemma. If the courts always refused to stay such proceedings, the perception would be that the court condoned criminal conduct and malpractice by law enforcement agencies. That would undermine public confidence in the criminal justice system and bring it into disrepute. On the other hand, if the courts were always to stay such proceedings, it would incur the reproach that it was failing to protect the public from serious crime.
The weaknesses of both extreme positions left only one principled solution. The court had a discretion: it had to perform a balancing exercise. If it concluded that a fair trial was not possible, it would stay the proceedings.
In this case the issue was whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on the broader considerations of integrity of the criminal justice system. The law was settled.
Proceedings might be stayed not only where a fair trial was impossible but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. In a case such as the present, the judge must weigh in the balance the public interest in ensuring that those charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court would adopt that approach that the end justified the means.
In the present case the judge did not err in refusing to stay the proceedings.
It was argued there was no case to answer under section 170(2) since the importation was carried out by the customs officer who did not act in concert with Shahzad. However Shahzad was guilty of an attempt at evasion under section 170(2). There was one offence under section 170(2) which could be committed by evasion or an attempt at evasion. Shahzad had correctly been found guilty under section 170(2). The appellant Latif's role was also sufficient to constitute an offence under section 170(2). The appeals were dismissed.