A criminal trial was conducted fairly notwithstanding the fact that foreign witnesses had been refused entry to the United Kingdom.Appeal against conviction. In June 2001 the appellant stood trial two counts, of the importation of cocaine and heroin. Prior to the trial the appellant applied for a stay of proceedings on the ground that the absence of two witnesses for the defence from Nigeria constituted a breach of her right to a fair trial. The judge rejected the application and statements from both witnesses were read to the jury. The appellant was convicted of both offences and sentenced to eleven and a half years on each count concurrently. The appellant was randomly stopped at Gatwick and her bags searched, she stated she had packed her bags herself and no one had given her anything to bring in to the country. When the drugs were found she later said that she had been given the bag containing, in a secret compartment, the drugs, by someone else to give to another person in the United Kingdom and that she had no knowledge of any drugs in the bag. She saw that the bag was physically empty and was not suspicious. It was accepted by the Crown that the witnesses had been unable to come to the United Kingdom. to give evidence for genuine reasons. The jury were deliberately not told that the 'reasons' were that visas had been refused. If they had been, everyone at the trial recognised that adverse inferences could be drawn by the jury against the witnesses. The appellant submitted that: (i) s.2 Criminal Procedure Act 1865 provided that a defendant was entitled to call such witnesses as he may think fit; (ii) Art.6(3)(d) European Convention on Human Rights provided that in the determination of any criminal charge an accused had the right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (iii) the State as a whole had a responsibility for ensuring the right was respected, that in the instant case the state had failed in that and that failure had resulted in unfairness; (iv) that if the right vested in the defence to call relevant witnesses was not absolute, any restriction on it had to be the least restrictive of the available options and, that the least restrictive option available was for the statements to be read pursuant to s.9 Criminal Justice Act 1967 (The Crown had refused to agree to the statements being read under this section). To read the witness statements under s.23 Criminal Justice Act 1988 did not correct the restrictions on the right of the appellant either under English domestic law or under Art.6.HELD: (1) The Court of Appeal agreed with the trial judge that at the time of his ruling the evidence given by the witnesses appeared to be relevant and material to the appellant's defence. With the benefit of hindsight it was possible for this court to say that the relevance of this evidence became somewhat diminished as a result of the Crown's stance on the defendant's case. The issue for the jury was: "had the Crown made them sure that at the time of importation the appellant knew that she was carrying prohibited drugs?" The evidence of the witnesses did not carry the appellant's case very much further. (2) If the appellant was knowingly carrying prohibited drugs then there was always the likelihood that she would lie to any customs officer who stopped her. It was implicit in the jury's verdict that they accepted the evidence of the Customs officer and rejected that of the appellant. (3) The court did not express any opinion on the argument that the State was indivisible. The trial judge, correctly, looked at the situation as it was at the date of trial and asked himself whether in the circumstances a fair trial was possible. (4) The Crown was asked to agree to s.9, the Crown refused, that left s.23 as the only appropriate method. The disadvantage of s.23, was that the judge was bound by R v John McCoy (1999) LTL 10/12/99 to direct the jury in the terms that he did. The direction the judge in fact gave was mild. (5) This court concluded that the appellant had fair trial.Appeal dismissed

[2003] EWCA Crim 2167