Practice and Procedure


PUBLISHED October 9, 2003

Where there had been a breach of the Dutch Criminal Code by the Dutch authorities in relation to a search of hotel premises, the evidence found was admissible in English proceedings as there was no breach of Art.8 European Convention on Human Rights and, even if there had been, there was no resultant unfairness to the defendant.Appeals with leave of the single judge and renewed applications for leave to appeal convictions for conspiracy to evade prohibition on the importation of cocaine contrary to s.170(2)(b) Customs and Excise Management Act 1970. The defendants were convicted on 6 March 2001 at Manchester Crown Court before HH Judge James Hammond. The first defendant ('H') was sentenced to 25 years' imprisonment, the second defendant ('B') to 20 years and the third ('D') and fourth ('K') defendants to 14 years each. As a result of US law enforcement agents infiltrating a Colombian money-laundering business, H's activities came to the attention of the authorities leading to the involvement of UK Customs and Excise. Following an undercover operation all the defendants became subject to surveillance. There was no dispute that H was laundering money. However, the surveillance resulted in the defendants being suspected of having a large amount of drugs in a Dutch hotel room. Before the hotel premises could be searched a formal request had to be made to the Dutch authorities in accordance with the Dutch Criminal Code ('the code'). An application had to be made to an examining magistrate and, if he concluded it was a proper case to go forward, a further application then had to be made to the District Court, consisting of three judges, for the search to take place. The code provided that if the search was urgent, that second step need not take place. An application was made and the magistrate decided there was urgent necessity in the search taking place and he allowed the application. The search took place and 89 kilograms of cocaine, with a street value of over ?10 million, was discovered. The code provided that before the fruits of any search could be given to the English authorities the examining magistrate had to report to the District Court and obtain authority. No such application was made. At the trial in England an application was made to exclude the evidence of the search under s.78 Police and Criminal Evidence Act 1984 as there had been two breaches of the code: (i) it had not been a case of urgent necessity; and (ii) no application had been made for permission to hand over the drugs to the English authorities. The application was refused. H appealed against conviction on the ground that the judge should have excluded the evidence as, relying on R v Khan (1997) AC 558, there had been a breach of Art.8 European Convention on Human Rights and breach of the code which was "relevant" (per Lord Nolan) to the exercise of s.78 of the Act. It was accepted that a breach of Art.8 did not necessarily mean that Art.6 was breached: the question for the court was what was the effect of the breach on the proceedings. H further contended that the judge had erred in summing up and had failed to direct the jury correctly in relation to the acquittal of a co-accused ('X'). B appealed against conviction on the ground that the judge had failed to give adequate directions on how evidence against B should be used. B further contended that the judge, when summing up, had stated that X's defence was that everything he had done was merely preparatory whereas the actual defence had been that he had been unaware that any drug smuggling took place. H, D and K made renewed applications on grounds which had been refused by the single judge.HELD: (1) Insofar as the search evidence was concerned the starting point to how the court should have dealt with it was s.78. There was no difficulty in accepting the proposition in R v Khan (supra). However, Lord Nolan had emphasised that evidence found in breach of Art.8 or foreign law "may be relevant" when considering s.78. The critical feature was fairness in English proceedings. There was no suggestion that there was any failing in the reliability of the evidence or of H's ability to test the evidence. In fact H agreed that the bags discovered contained drugs. The correct approach for the courts was a "balancing exercise" (per Potter LJ in R v (1) X (2) Y (3) Z (2000) LTL 16/5/2000). (2) There had been no breach of Art.8. H had the right under Art.8 not to have a hotel room he occupied for a period of time invaded. However, the question was whether the room in question could properly be said to be a room properly occupied by H where it was his home. H stated in evidence that he had booked into the hotel not intending to stay there and when he had placed the drugs in the room he had no intention ever to go back. Accordingly when the search took place he was not an occupier and there could therefore be no breach of his Art.8 rights. (3) Even if that was wrong and there had been a breach of Art.8 the court would have to go on to consider whether it should lead to the exclusion of the evidence. There had been a breach of the code in respect of the examining magistrate's failure to make application for the drugs to be handed over. That failure meant H lost the opportunity to be heard as to whether the drugs should have been handed over. The failure was by the Dutch authorities, not the English or Dutch prosecuting authorities. It could not be said there was any unfairness and the judge was right not to exclude the evidence. (4) There was no merit in H's criticism of the judge's summing up and directions. (5) So far as B was concerned, again there was no merit in his criticisms of how the judge had directed the jury in relation to the evidence. There was, however, merit in the complaint regarding the judge's reference to X in summing up. During the trial the jury heard evidence of X's guilt and it was inevitable that they would conclude that, whatever the others were doing, X was a conspirator. Whilst it would have been better if the judge had worded his summing up better, nothing was revealed that made the verdict unsafe. (6) There was no merit in any of the renewed applications.Appeals dismissed. Applications refused.