Mohammed Azim Aslam [2019] EWCA Crim 1352

In Mohammed Azim Aslam [2019] EWCA Crim 1352 the Court of Appeal (Lord Justice Holroyde and Mr Justice Swift) refused renewed applications for an extension of time to appeal against conviction (of approximately three years and eleven months) and for disclosure orders.

Mr Aslam had been convicted on 2 October 2013 after trial in the Crown Court at Birmingham before His Honour Judge Rafferty QC and a jury of conspiracy to fraudulently evade the prohibition on the importation of a class A controlled drug (diamorphine) and conspiracy to supply that drug. The conspiracies were alleged to have run from 1 June 2010 to 16 June 2012. He was sentenced on 18 December 2013 to concurrent terms of 12 years’ imprisonment on each count. No appeal was brought at the time, his trial lawyers having advised that there were no arguable grounds. The applicant later instructed fresh representatives. His applications were refused by the single judge and he renewed them to the full court, also applying for disclosure orders.

The prosecution case was that the conspiracies operated on a large scale to import heroin from Afghanistan via Pakistan and to supply it to dealers. A dealer’s list found at one searched premises appeared to show that more than one million pounds had been received in one week from drug dealers. The Crown alleged that Zaheer Hussain headed the conspiracies and that Mr Aslam was a trusted lieutenant who arranged transport and accommodation for Hussain and was directly involved in at least one importation. Hussain was also convicted and his own application for leave to appeal had been refused by the full court. Mr Aslam had denied any involvement in either conspiracy.

The prosecution relied on circumstantial evidence. A mobile phone (ending 595) was associated with Hussain and had only ever been in contact with three Pakistani numbers, one of which (ending 717) belonged to Babar Qayyum. A flat at The Hive in Birmingham City Centre was used as a “money house”; when raided the police found £146,000 in cash and the dealer’s list. Mr Aslam visited the flat on 28 March 2012 for some three and a half hours with Haroon Ali at a time when a large sum of money was inferably present, and on two other occasions he was alone there for periods exceeding one hour. The prosecution relied on the fact and duration of those visits as indicating that Mr Aslam was a trusted co‑conspirator. On dates in May 2012 Mr Aslam attended The Belfry Hotel, drove Hussain to and from it, and used his credit card to pay for hotel rooms which the evidence (including fingerprints) showed were used by Hussain. CCTV footage showed Mr Aslam arriving and leaving in an Audi and a Toyota and making bookings at reception. On 16 May 2012 two crates containing 2.82 kilograms of heroin arrived in the United Kingdom. They were addressed to 122 The Broadway, Southall and the contact number for delivery was a mobile ending 596. The crates and their contents were intercepted. The phone 596 had been active only from 22 April to 16 May 2012. It was an important part of the prosecution case to attribute that phone to Mr Aslam. Cell site evidence showed that the movement of 596 on 10, 11, 12 and 13 May was consistent with Mr Aslam’s movements by car (as tracked by ANPR cameras) to and from The Belfry Hotel. A similar combination of cell site evidence and CCTV footage in relation to a shop called Simply Fresh was relied upon as consistent with Mr Aslam’s visits to that shop and possession or use of the 596 phone. Babar Qayyum was arrested and interviewed by police in July 2012 having been stopped at an airport as he was about to leave the country. His 717 phone contained text messages connecting him to the importation of heroin which arrived on 16 May 2012. One message texted to him contained the address “M Aslam, Middlesex Knitwear, 122 The Broadway, Southall” and the relevant postcode. Qayyum told the interviewing officers that he was an informant cooperating with law enforcement authorities in Pakistan. He was released on bail following interview, promptly left the country and so far as is known has not subsequently returned to the United Kingdom. When police went to arrest Mr Aslam’s brother, they found Mr Aslam in possession of keys for the Audi which had been used to transport Hussain to The Belfry. In the boot were empty sports bags of a kind similar to bags recovered from a car driven by Ali at the time of his arrest; the bags found in Ali’s possession contained £160,000 in cash and Ali later pleaded guilty to money laundering. At one of the premises searched the police found an identity document relating to Mr Aslam together with a substantial sum in excess of £1,000 in cash. In interview Mr Aslam gave what the prosecution alleged was a lying account about his booking of rooms at The Belfry, which he said he had done on behalf of a friend whom he did not wish to name.

Mr Aslam did not give evidence at trial. One point emphasised on his behalf by trial counsel related to evidence concerning a visit to The Belfry Hotel on the afternoon of 10 May 2012. According to the timing displayed on the hotel’s CCTV system, Mr Aslam entered at 14.49 and was at the reception desk for five minutes. At 14.55 the CCTV footage showed him holding a phone to his ear. The call data records for 596 did not however show any incoming or outgoing call at that time. Mr Aslam could be seen to return to the reception desk at 14.58 no longer holding a phone. At 14.58.40 the call data records showed that 596 either made or received a call lasting 58 seconds. Counsel made the point that Mr Aslam on that evidence could not have been using the 596 phone at that time. In summing up the judge pointed out that although the prosecution had called Mr Matthew Davies, the senior security supervisor at The Belfry Hotel, no one had asked him whether the timings on the CCTV system were accurate. The judge, having referred to the point made by counsel, said that there was no evidence that The Belfry CCTV timings were accurate either with one another or otherwise; if they were accurate or might have been accurate then the point made was powerful, but if they were not then the point had little value; how the jury approached that issue was entirely a matter for them.

The ground of appeal was that the convictions were unsafe because evidence obtained since conviction amounted to fresh evidence which cast doubt on their safety. Application was made to rely upon fresh evidence of three witnesses. An explanation was put forward for the long delay in lodging the notice of appeal. The court postponed consideration of that application until after it had considered the merits of the ground of appeal. The court reminded itself of section 23 of the Criminal Appeal Act 1968.

The applicant sought first to rely on further evidence from Mr Davies, who made a statement dated 27 October 2016 indicating that he did not recall being asked about the accuracy of the timing shown on footage from The Belfry’s CCTV system at the time when he made his original witness statement or at the time when he was giving evidence at trial. He said that there was no regular check made of the accuracy of the times shown on the footage. There were six separate hard drives involved in the system. When any particular incident that required subsequent investigation occurred, an enquiry would be made of the CCTV system at the time of viewing the incident as to whether timings on the cameras compared accurately with real time, including a comparison of the CCTV system against GMT and camera against camera. He did not recall being asked at any time whether the CCTV times were accurate when compared against GMT. Had there been any issues he would have expected this to be raised, and to the best of his recollection no such issue ever arose. Mr Schofield submitted that this evidence showed a very high degree of probability that the times shown on the CCTV footage were reliable, from which it must follow that the point made by trial counsel was indeed a powerful one.

Secondly, the applicant sought to adduce in evidence a report dated 3 June 2016 by a forensic investigator Mr Ross Colwell. This was relied upon for the proposition that cell siting survey measurements and call data record analysis were inconsistent with the prosecution evidence that the use of the 596 phone was consistent with the user being connected to a particular address in Birmingham (60 Selston Road) which was linked to Mr Aslam. Mr Colwell based his report on a network survey of the relevant area which he carried out on 9 May 2016. He indicated that in preparing his report he made a number of assumptions: first, that the mobile telephone networks were functioning correctly at the time of the survey; secondly, that the configuration of the networks was the same at the time of the survey as it was at the time of the relevant events in 2012; thirdly, that the majority of the call data record entries were located at the home location and that there was a typical quiet period when the user of a phone was at his home and asleep. Mr Colwell stated that the call data records showed seven cell identifications in entries either side of the presumed quiet periods; in his survey none of those cell sites provided service at the Selston Road address. Noting that his results therefore differed from those given in unchallenged evidence by the prosecution’s expert witness at trial, Mr Colwell suggested that the relevant network provider (Vodafone) be asked whether any network configuration changes had been made during the intervening years which might explain the differing results. The court was told that Vodafone would be willing to provide the information sought but only if required to do so by a court order. Accordingly, one of the applications made to the court was for such an order against Vodafone.

Lastly, the applicant sought to adduce in evidence a statement recorded in Pakistan from Babar Qayyum. The statement was apparently taken on 2 December 2016 by an investigator who was instructed by the lawyers now representing the applicant to go to Pakistan for the purpose of making enquiries of Mr Qayyum. Mr Qayyum’s statement said that he had not spoken to or met Mohammed Azim Aslam; it was not a name that was familiar to him; he did not believe he had had any contact with him whatsoever. He did not recall the police officers asking him about Mohammed Azim Aslam or the 596 number in the context of the importation of drugs into the United Kingdom or in any other context. He did not believe that he had spoken to him or been in contact with him regarding any other number. It was apparent that before making his statement to the investigator, Mr Qayyum had been provided with and given time to read a transcript of his police interview. Mr Qayyum’s statement went on to refer to the fact that heroin was to be delivered to the address in Southall which was mentioned in a text message stored in his own mobile phone and which message included the name M Aslam. As to this, he said that he was asked by someone in Pakistan (whom he did not wish to name) to check up on a parcel that was being delivered to that address. He went to the address, looked around and could find no suggestion that there was any police activity. He had no involvement in this package and simply reported back that he could not see what had happened to it. It was submitted on behalf of the applicant that this statement could be admissible pursuant to section 116 of the Criminal Justice Act 2003 and it was said that the statement provided support for Mr Aslam’s case that he was not involved in either of the conspiracies of which he had been convicted.

In connection with Mr Qayyum, application was made for disclosure relating to his police interview. A transcript of his interview was prepared and was available to all parties as part of the evidence at trial. In that transcript certain passages had been visibly redacted to delete particular names referred to by Qayyum as being his contacts. Some use was made of this interview transcript at trial. The prosecution called a detective constable who had been involved in the arrest of Qayyum simply to give evidence about the text messages found on the 717 phone when it was seized from him. Counsel for the co‑accused Zaheer Hussain then cross‑examined the constable (not Qayyum himself), effectively to put before the jury the substance of the account given by Qayyum, and subsequently sought to rely on that account. There was understandably no cross‑examination on behalf of Mr Aslam. In re‑examination by Mr Duck QC (then as now acting for the prosecution), reference was made to the fact that Qayyum had told the police that in his role as informant he had been making contact with persons involved in the importation and supply of class A controlled drugs.

It was submitted that there were deeply suspicious features of the transcript. The point was made that the duration of the interview was recorded as being one hour thirty minutes, and indeed the start and finish times of the interview were stated by the interviewing officer for the record as being 12.30 and 14.00 respectively; however, the tape counter times which appeared within the record only went up to 67:05. Mr Schofield argued that there was on the face of it a 23‑minute discrepancy between the stated duration of the interview and the tape counter times shown on the transcript. In addition, when enquiries had been made at the urgings of those now representing the applicant, it had emerged that the master recording of this interview was in a package on which the seal had been broken, and Mr Duck had not been able to assist the court with when or in what circumstances the seal was broken. Mr Schofield argued that there was reason to believe that the transcript had been improperly edited so as to exclude important content. He submitted that it was the applicant’s case, “supported by Qayyum’s account and the real possibility that his interview under caution has been improperly edited”, that both the 595 and 596 phones were being used by members of the Zeb Khan family and were nothing to do with either the applicant or Zaheer Hussain. Mr Schofield submitted that he was not able properly to present his application for leave to appeal against conviction until the prosecution had been required, by an order of the court, to cause an analysis to be made on a bit for bit basis of the original master recording to see whether the transcript was accurate and to see whether anything had been omitted. Mr Duck told the court that the master recording had recently been listened to by the officer in charge of the case and by a representative of the CPS and found to tally accurately with the transcript; but Mr Schofield submitted that that did not answer the point that there may have been interference with the disk so as to make it match the improperly circumscribed transcript.

All these matters were relied on by way of fresh evidence. In the alternative, although no criticism at all was made of trial counsel, it was submitted that if all or any of the evidence could reasonably have been obtained at trial it should have been obtained and the failure to obtain it cast doubt on the safety of the convictions.