Case No: 2001/3927/WI

Neutral Citation No. [2003] EWCA Crim 2167
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CROYDON

Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 24th July 2003

Before :

LORD JUSTICE KENNEDY
MR JUSTICE CRESSWELL
and 
MR JUSTICE BENNETT 

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	R v ABIODUN		

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Mr Starmer Q.C. and Ms Strange for the Appellant
Mr Agbamu for the Crown

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Judgment
Mr JUSTICE BENNETT :    

1.	On 11 to 14 June 2001 the appellant stood her trial at the Crown Court at Croydon before H.H.J. Stow QC and a jury on two counts, namely fraudulent evasion of the prohibition on the importation of cocaine, and the fraudulent evasion of prohibition on the importation of heroin. Prior to the trial getting under way the appellant applied for a stay of proceedings on the grounds that the absence of two witnesses for the defence from Nigeria constituted a breach of the appellant’s right to a fair trial. The judge, having heard submissions on behalf of the appellant and the Crown, rejected the application. The trial then proceeded. The appellant gave evidence. Statements from the two witnesses, who were unable to be present, were read to the jury. The judge summed up and the jury retired. On 14 June the appellant was convicted of both offences by a majority (10:2). She was sentenced to eleven and a half years imprisonment on each count concurrent. 
2.	Leave to appeal against conviction was refused by the single judge. However it was granted by the Full Court. We have heard her appeal against conviction. We have to decide whether the judge was right to refuse a stay of proceedings and related grounds of appeal.
3.	The facts of this case are as follows. On 24 July 2000 the appellant, who is a Nigerian national, arrived at Gatwick airport from Lagos in Nigeria. Having collected her luggage, the appellant proceeded through the green channel of  Customs’ control, where she was stopped by John Clarke, a Customs Officer of some 22 years experience. Mr Clarke said that he asked her where she had come from and how long she was in the U.K. for. The appellant replied that she was here on business for a week and would be staying at a hotel in Victoria, which she named. Her luggage, consisted of a brown handbag and a large blue holdall. In answer to Mr Clarke she said that the brown handbag and the large blue holdall were her own luggage. She had packed the bags herself and no one had given her anything to bring in to the U.K. 
4.	The blue holdall was unlocked. Immediately inside, at the top, was a small black suitcase. Underneath that little suitcase there was a USA Twelve Shuttle New Trendy wheelie bag. Mr Clarke asked her how long she had had the wheelie bag. She replied that it was new and she had got it a week ago. Mr Clarke then picked up the wheelie bag and to him it felt heavy. 
5.	Mr Clarke put the wheelie bag through the x-ray machine but the image was inconclusive. Mr Clarke asked a colleague to make an incision with a knife into the base of the bag. When his colleague withdrew the knife, powder could be seen on the blade. The appellant was then arrested and cautioned. 
6.	At a later time the wheelie bag was examined again and it was found to contain a false bottom. Inside were three packages of heroin and cocaine. 
7.	When the appellant was interviewed by Customs’ officers, including Mr Clarke, in the presence of her solicitor, the appellant protested her innocence. She explained that she had got the wheelie bag from a lady in Nigeria and she was bringing it over as a favour. She had no idea there were any drugs in it. She also disputed Mr Clarke’s assertion that, after the wheelie bag was produced from the holdall, she had not told Mr Clarke that somebody else had given it to her. According to her, she had told him that somebody else had given her the bag. 
8.	When he was cross-examined, Mr Clarke said that it had been a completely random stop. He had asked the appellant a series of standard questions. His notes of what he says the appellant said were written up after she had been arrested. He had to reconstruct the conversation as best he could, but he finished the note at approximately 7.20am which was not long after the time when he first stopped the appellant at 6.45am. He denied that the appellant had told him that she had got the bag from another person last week. He told the jury that, if she had said that, he would have recorded it. He accepted there were a number of receipts in her luggage relating to her business. When enquiries were made into her bank accounts all the transactions in them related to her business.
9.	The total value, he said, of the heroin (677 grammes at 100% purity) was £123,840. The total value of 542 grammes of cocaine at 100% purity was £56,822.      
10.	Mr Clarke further told the jury that in November 2000, at Gatwick airport, in the presence of the appellant’s legal representative, he weighed the wheelie bag and found that it weighed just over two and a half kilos. If the weight of the wooden base (480 grammes), the drugs wrapping (about 80 grammes), and the drugs themselves (weighing 1,674 grammes) were taken into account, then the total weight of the bag was 4,700 grammes, i.e. somewhat more than an extra two kilos. 
11.	The appellant gave evidence. She said that she lived in Ibadan in Nigeria. She had a shop in Baji market in Ibadan and had a ladies’ hair salon. She bought textiles and shoes from the U.K. and sold them at a profit margin of 100% in Nigeria. When she came to the U.K. she would stay at the Grapevine Hotel and the Earls Court Hotel. The purpose of her trip in July 2000 was to buy textiles, shoes and bags. She intended to stay for a week or less. The £1,000 she had with her was part of the money she needed to make those purchases. She had arranged for someone to pay a further £6,000 into her account in the U.K. The blue holdall bag was hers and so was the black bag.
12.	She told the jury that the wheelie bag had been given to her by Mama Chardy in Nigeria. Mama Chardy was a friend to a sister (not a blood sister) called Funky. She knew that Mama Chardy lived and had a shop in Lagos, but she did not know in which street she lived in or in which street the shop was. She never had any suspicion of any drug dealing by Mama Chardy. 
13.	She further told the jury that she had met Mama Chardy for the first time about a year before her arrest and then twice more at Funky’s house. Mama Chardy struck the appellant as a responsible person. Mama Chardy apparently knew that she made trips to the U.K. About four or five days before Mama Chardy came to the appellant’s house she received a telephone call. Mama Chardy asked her to do her a favour. Mama Chardy wanted a bag returned to its owner in the U.K. The appellant told the jury that she was reluctant because she felt she would not have time to cope with all this. She explained that to Mama Chardy. Nevertheless reluctantly she did agree to take the bag to the U.K. 
14.	On a Sunday shortly before the appellant travelled to the U.K. in July 2000, she was at home with a friend Mr Adedeji. He was a business partner and would buy goods from her. She in turn would buy goods from him. When on  that Sunday Mama Chardy came to the appellant’s house there were present apart from Mama Chardy, Mama Chardy’s sister, Mr Adedeji, and Mr Akerele. Mama Chardy had the wheelie bag with her and explained to the appellant that it was the bag she wanted the appellant to bring to the U.K. The appellant said she did not have time to look for anybody in the U.K. and she was reluctant to do what she was being asked, because of her lack of time. An arrangement was made that the appellant would telephone her children in Nigeria to let them know where she was staying. Mama Chardy would then telephone the children to find out where the appellant was staying, would communicate with somebody in London, who would then go round and pick up the bag. 
15.	The appellant said she just picked up the wheelie bag once, or possibly twice, and put it in her blue holdall. She did not handle it apart from that, so she had very little opportunity of assessing its weight. It did not seem odd to her to be asked to do this favour, because that was the sort of thing which was undertaken in her community. 
16.	The appellant said that she had absolutely no knowledge of any drug in the bag. She saw that the bag was physically empty and she was not at all suspicious of it. 
17.	As to the conversation which Mr Clarke and she had had at Gatwick airport, she told the jury that she was not even thinking about the bag when Mr Clarke was asking her questions. When he took the wheelie bag out and asked her about it, she said that she had told Mr Clarke that she had had it in the previous week, and thereby she meant it had come into her possession a week ago. She was adamant that she did tell him that someone had given her the bag. She went on to say that she had never been in trouble in Nigeria, and that all that she had said was the truth. 
18.	When cross-examined, she agreed that she had never carried anything for anyone before. She did not know Mama Chardy’s business address or phone number either for her work or her home. She intended to call her children from a pay phone at Victoria after making her hotel booking. She accepted it might be that the chain of communication could break down, but in that case she would have taken the bag back to Nigeria. She was adamant that she did not know there were drugs in the wheelie bag. It was not intentional that the black bag happened to be on top of the wheelie bag. So far as the conversation with Mr Clarke was concerned, she was not claiming ownership of the wheelie bag. She would not have known of the weight of the wheelie bag. She thought she was handling an empty bag. She traded in ladies fashion bags which were quite different from wheelie bags. 
19.	The statement of Mr Adedeji was read to the jury. He said that he had known the appellant for over ten years. She had been a close friend of his and he could say that in all his dealings with her, she had always acted honestly and with dignity. He remembered being present when he saw a woman known to him as Mama Chardy, in the company of Mr Akerele and Funky, bring an empty bag to the appellant and ask her to deliver the bag to a friend of hers in the U.K. Mama Chardy handed the bag to the appellant. She informed the appellant that she had borrowed the bag when she had been in London herself and wanted it returned to the owner. The appellant said that she would not be able to seek out the owner of the bag as she would be busy with her business and wouldn’t have time. The appellant was not able to tell Mama Chardy at which hotel she was going to stay at because she had not by then booked it. It was arranged between the appellant and Mama Chardy that the latter would telephone the appellant’s children in order to ascertain her place of residence in London. The appellant would have telephoned her children from London to find out about their welfare and give the address at which she was staying. Mr Adedeji saw the bag and it was empty. 
20.	Mr Adedeji said he could not speak highly enough of the appellant as a businesswoman and as a mother. She was honest and straightforward, religious, and as far as he was aware she had never been in any trouble at all. He did not know Mama Chardy. The only time he had met her was at the appellant’s house and it was only by chance that he was at her house on that day. 
21.	The statement of Mr Akerele was also read. He said that he had been in a relationship with Funky for eight years. Funky was a very close friend of the appellant; indeed they called each other sisters. The appellant had been known to him for eight years through Funky. 
22.	Mr Akerele remembered that on Sunday, 16 July 2000 he went to visit Funky at her home in Ibadan. Mama Chardy was present. They all then took a taxi to the appellant’s home. The appellant and Mr Adedeji were there. He heard a discussion take place between Mama Chardy and the appellant. Mama Chardy said she wanted the appellant to deliver a bag to a friend of hers in London. The appellant was reluctant. She said she would not have the time to locate or look for anybody, as she would be busy with her business. It was nevertheless agreed that the appellant would telephone her children and give them the address where she was staying, so that Mama Chardy could telephone her friend in London to enable him to go round and pick up the bag from the appellant.
23.	He said that in all the time he had known the appellant, she had always been a very honest and straightforward person. He had never known her ever to be involved in anything illegal or dishonest. 
24.	There were various admissions made, one of which is important for the purposes of this appeal. It was accepted by the Crown that Mr Adedeji and Mr Akerele had been unable to come to the U.K. to give evidence for genuine reasons. There was no elaboration on that; indeed 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 Mr Adedeji and/or Mr Akerele. The jury were also told that the appellant’s solicitor had travelled to Nigeria in January 2001. Whilst there he took a number of statements including those read to the jury of Mr Akerele and Mr Adedeji. 
25.	The issues which the jury had to decide were set out in the very clear summing up of the judge. The judge made clear to the jury that it was for the Crown to prove, so that the jury were sure, all the ingredients of the offences, before they could convict. At page 5 he said to the jury:-
“While there is no doubt, you may think, that someone was involved here in the fraudulent evasion of a prohibition on the importation of these Class A drugs, because somebody went to enormous lengths to conceal these drugs in the base of this empty bag, but the issue is whether or not the prosecution have proved the defendant was knowingly concerned in the fraudulent evasion. In effect, the prosecution have to prove in respect of each count that the defendant knew she was importing prohibited drugs and that she was knowingly involved in fraudulently evading a prohibition on importing them by trying to smuggle them through Customs.
The prosecution do not have to prove that she knew what type of prohibited drugs they were. Although there are, as you know, two separate counts, there is no dispute in this case that she did import both the cocaine and the heroin and, therefore, in each case the question is whether the prosecution have proved that she knew she was importing prohibited drugs. In practice, therefore, the prosecution have either proved both counts or neither of them.
…the real issue at the end of the day, members of the jury, is whether or not the prosecution have proved that she knew that she had prohibited drugs in her luggage, in that wheelie bag. That is the issue for you to decide.”  
26.	The judge gave the standard direction as to good character, both as to credibility and propensity. 
27.	He also directed the jury about the alleged lies told by the appellant to Mr Clarke. The lies were identified by the judge as follows:- 
1. She told Mr Clarke that everything inside the blue holdall belonged to her. The Crown alleged that her account to the jury was that the wheelie bag did not belong to her and thus what she had told Mr Clarke, was a lie.
2. She told Mr Clarke that nobody had given her anything to bring to the United Kingdom. The Crown said that that was a lie.
3. Mr Clarke asked her what was in the blue holdall bag, and according to Mr Clarke she replied “empty bags for my shopping”. The Crown said that she was implying that all the bags were hers for her own purpose. The Crown submitted that that was a lie.
4. It was alleged that she told Mr Clarke that she had got the bag new last week. No mention was made, according to Mr Clarke, that the wheelie bag had been given to her by a lady the previous week to bring into the country as a favour. 
28.	The judge then gave the standard lies direction. He was careful to point out what the appellant’s explanation was for saying that which Mr Clarke said she said. He was careful to point out where the differences in the evidence lay between the evidence of Mr Clarke and of the appellant. 
29.	The judge then summarised the evidence on behalf of the Crown and on behalf of the appellant as we have set out above. The statements of Mr Adedeji and Mr Akerele were admitted into evidence pursuant to Section 23 of the Criminal Justice Act 1988. The judge correctly directed the jury as follows:-
“Then the statements of Mr Adedeji and Mr Akerele were read. I should explain, Members of the Jury, that there is a statutory procedure under which where witnesses are abroad and cannot come to this country, their statements can be read, so their evidence goes in in statement form. Obviously from your point of view, when it comes to assessing what weight to give to their evidence, the disadvantage is, of course, that you have not had the benefit of seeing them give evidence and seeing them cross-examined so you don’t know, at the end of the day, how well or badly they would have fared, particularly in cross-examination, to what extent they would have impressed you, if at all. That is, of course, denied to you, but nevertheless, their statements are in evidence before you perfectly properly and have been read to you.”
The judge, as we have said, then reminded the jury of the contents of both statements.   
30.	It is now necessary to recount the facts placed before HHJ Stow QC to support the appellant’s application for the trial to be stayed.  
31.	On 20 December 2000 Mr Symeou, a partner in the firm of R.J. Fellowes and Son, the appellant’s solicitors, wrote to Customs and Excise asking for their assistance in obtaining visas. The reply was that they were unable to assist. In January 2001 Mr Symeou went to Nigeria for the purposes of tracking down witnesses who might be able to support the appellant’s case. He took statements from Mr Adedeji and Mr Akerele which complied with the requirements of Section 9 of the Criminal Justice Act, 1967. Whilst in Nigeria Mr Symeou visited the Deputy High Commission in Lagos and liased with immigration officers, in order to try and assist for those two witnesses to be granted visas to attend the trial. The Deputy High Commission agreed to process the applications quickly. Mr Adedeji and Mr Akerele applied for visas. On the 1 February 2001 the applications were refused, on the grounds that the witnesses had submitted insufficient details of their financial means, and that given that situation and that both had families to support, the immigration authorities were not satisfied that either witness would return to Nigeria after they had given their evidence. 
32.	The trial of the appellant had been fixed for 5 February 2001 and was adjourned to 20 February. It was then adjourned until 11 June 2001. The judge indicated that there would be no further adjournments. In February Mr Symeou wrote to the Foreign Office but it said it could not assist.
33.	Fresh visa applications were put in to the Deputy High Commission in Lagos. On 17 April 2000 Mr Adedeji and Mr Akerele attended their visa appointments and were seen together. Unfortunately there appears to have been some misunderstanding, in that the immigration officer determined only the application of Mr Adedeji although Mr Akerele was present. The immigration officer was not satisfied that the purpose of the trip was as stated by the applicants or that Mr Adedeji would return to Nigeria after the trial. Apparently in further correspondence the immigration officer invited Mr Akerele to attend for a further appointment but by then he was travelling in the north of Nigeria and was unable to do so.
34.	On 25 May 2001 the appellant’s solicitors wrote to Customs and Excise stating that applications by Mr Adedeji and Mr Akerele for visas had been refused and seeking their assistance to procure the attendance of those two witnesses. The Customs and Excise replied that they were not refusing to assist but they had no weight or influence over immigration matters.
35.	On 7 June 2001 Customs and Excise wrote to Mr Alex McCann, the Second Secretary at the British Deputy High Commission in Lagos, setting out the history of the attempts to obtain visas and concluded their letter by saying:-
“…We have been asked to use our best endeavours in order to assist the defence in getting the above individuals to the U.K. to give evidence. 
We have spoken to Messrs. R.J. Fellowes and Sons Solicitors and they provided us with your details by way of a direct contact. We have made several attempts to telephone you today in Nigeria but to no avail. In light of the forthcoming trial on 11 June 2001 we have been asked to contact you to ascertain whether or not would consider granting a fast track visa application to the above named individuals for a limited period to enable them to give evidence at the trial. ”  
36.	This letter followed a hearing in front of HHJ Joseph on 5 June. He was unimpressed at the attitude of Customs and Excise. He directed Customs and Excise to use their best endeavours to assist the appellant to obtain the necessary visas. Hence the letter of the 7 June. 
37.	At the court’s direction Mr Zefferman, Head of the Central Case Unit of Customs and Excise, attended the Croydon Crown Court and gave evidence as follows:-
1. He had no knowledge of the case prior to 5 June 2001.
2. He was unaware of any formal procedure whereby Customs and Excise could secure the presence of Nigerian witnesses for trial.
3. He agreed that an official from Customs and Excise might have more weight than a defence solicitor when liasing with an immigration officer with power to grant visas.
4. He had no direct experience or, responsibility for securing witnesses for trial to give evidence for the Crown.
5. He believed that customs officers had on occasions travelled abroad to assist prosecution witnesses in making applications for visas and to liaise as necessary.
6. He was aware of circumstances where Customs and Excise had liaised with immigration on behalf of the defence and that on occasions that had yielded result.
7. He stressed that the Home Office was a separate department from Customs and Excise and would not wish to appear swayed by the activities of another department. 
38.	Two submissions were made on behalf of the appellant in an endeavour to halt the trial as an abuse of the process. First, it was submitted that Customs and Excise had not done enough to assist the defence. Their conduct and lack of cooperation was relevant to the issue of fairness. It was unfair that the defendant was unable to call the two witnesses so there was a breach of Article 6 of the European Convention on Human Rights. Second, and alternatively, it was submitted that if Customs and Excise had done all that they could, the proceedings were still unfair. The State was indivisible. No distinction could be made between the Entry Clearance Officer in Nigeria on the one hand and the Customs and Excise on the other. It was the Government which was prosecuting the appellant, and at the same time refusing the applications for visas in respect of the two witnesses.
39.	As to the first submission the judge held:-
“It may well be that Customs and Excise could have moved more quickly and more vigorously at an early stage, but that is a very far cry from any suggestion that they have done anything whatsoever to obstruct the defence, and there was force in the observations of Mr Zefferman, who admittedly only came on the scene recently, to the effect that this was not a case where Customs and Excise could have provided some information which the defendant’s own solicitor who visited Nigeria could not and had not already provided to Mr McCann, and he said the bold statement by Mrs Manjea “please note we are unable to assist you in obtaining a visa”, was in fact correct because Customs and Excise cannot in effect put pressure on an Entry Clearance Officer to change his decision, and cannot do anything, for instance, to assist a particular witness to jump the queue in the order of applications for visas, and he points out what strikes me as perfectly sensible and reasonable, that immigration officials and Entry Clearance Officers are anxious to ensure decisions are not influenced as a result of pressure from other Government departments.
I don’t consider that merely because Customs and Excise have not been more vigorous to assist at an early stage and only wrote their letter of 6 June after intervention by Judge Joseph on the last hearing amounts to conduct which in any way infringes the defendant’s right to a fair trial or would justify a finding of impropriety or improper interference on their part. I emphasise that there is no suggestion here that they have done anything to hinder the defence’s attempts to obtain the visas. ” 
40.	As to the second and alternative submission the judge said:-
“As regard Miss Strange’s alternative submission… I have come to the conclusion that none of the authorities quoted, for the reasons which I have explained, assist Miss Strange with the proposition of law to the effect that Customs and Excise must in effect take a responsibility for the decision of Mr McCann because they are both organs of a indivisible Government. To my mind it is perfectly proper and in fact it is the position that as regards the particular functions that the Court is concerned within this case, namely the prosecuting functions of Customs and Excise on the one hand and the function of the Entry Clearance Officer in deciding whether or not to grant visa applications on the other, are and should be kept totally separate. There is absolutely nothing to suggest that Mr McCann’s decision was in any way in bad faith and I don’t think it is for me to decide whether at the end of the day his decision was a good one or a bad one. And I would emphasise that I have not heard any suggestion from any quarter to the effect that he was acting in any other than a completely bona fide manner.” 
41.	Specifically as to Article 6 of the European Convention on Human Rights, the judge said that if the defence had been prevented from producing any evidence of the two witnesses by refusal to grant visas then it was possible that the submission of unfairness might have had some force. He continued:-
“But there is the procedure under Section 23 to which I have already referred and the statements can be put in evidence and can be considered by the jury. I fully take on board the submission made by Miss Strange that the Court would have to give a warning as to the weight to be attached to the statements in accordance with the guidance given in McCoy and I take Miss Strange’s point to the effect that the jury might think ill of the witnesses if they had learned that their applications for visas had been refused. But the bald fact remains that the defence would have an opportunity of putting before the jury the statements of those witnesses and it would probably be the case, although I don’t attach a great deal of importance to this, that some formula could be found whereby the Crown could agree for the purposes of Section 10 that the witnesses had genuine reasons for not being able to come to this country. I appreciate that it is not as satisfactory as if the witnesses attended the court, gave evidence, were assessed by the jury and were cross-examined by the prosecution, but despite the disadvantages of that procedure I don’t consider that the situation which I have just outlined comes anywhere near to a breach of Article 6 of the European Convention on Human Rights.”    
42.	Accordingly the submissions on behalf of the appellant were rejected. The appellant now submits that the judge was wrong and should have stopped the trial as an abuse of the process.    
43.	Mr Starmer Q.C. and Ms Strange submitted a detailed skeleton argument. At the hearing before us Mr Starmer distilled their submissions into eight propositions. First, Section 2 of the Criminal Procedure Act 1865 provides inter alia that a defendant shall be entitled to call such witnesses as he may think fit. Article 6(3)(d) of the European Convention on Human Rights provides that in the determination of any criminal charge an accused shall have the right to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Second, the proposed witnesses must be able to give relevant evidence and be willing to testify. Mr Starmer rightly conceded that an accused does not have the right to call any witness but only those witnesses whose evidence is relevant. 
44.	Third, the State as a whole has a responsibility for ensuring that this right is respected. It is unfair for one arm of the State to abdicate responsibility for what another arm is doing. He referred us to a decision of the High Court of New Zealand, Samleung International Trading Co. Ltd. V Collector of Customs [1994] 3 NZLR 285. In that case the applicants asked for an order that a request be issued to the High Court of Hong Kong for the taking of oral evidence on their behalf in connection with criminal proceedings in New Zealand pursuant to Section 11 of the Mutual Assistance in Criminal Matters Act, 1992. At page 290, Blanchard J. said:- 
“The Act does not expressly say that the Attorney-General is obliged or authorised upon being satisfied in accordance with subs (1), to make a request on behalf of the defendant to any criminal proceedings, either where the defendant alone seeks that assistance or where, as in the present case, both prosecution and defence wish to have evidence taken abroad. But I can find nothing in the Act saying that the Attorney-General is to use his powers on behalf of the prosecution only. The long title and s.4 setting out the object of the Act, are in this respect neutral. 
Construction consistent with Bill of Rights
       The Act must in accordance with s 6 of the New Zealand Bill of Rights Act 1990 be given a meaning consistent with the rights and freedoms contained in the Bill of Rights. Section 25 of the Bill of Rights, which proclaims the “minimum rights” of persons charged with an offence, in relation to the determination of the charge, includes:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.
It would plainly contravene this minimum standard if the Collector of Customs could obtain evidence against the present applicants in Hong Kong by means of the making of a request under Part 11 of the Mutual Assistance in Criminal Matters Act and if that facility were not also available to Samleung and Mr Kwok.”    
45.	Fourth, in the instant case the state had failed in that responsibility in three respects, namely:-
“(a) the decision of the Deputy High Commission not to issue visas was a breach of Article 6.
  (b) the Foreign Office had failed to offer any effective assistance, and 
   (c) the initial refusal of the Customs and Excise to assist and then its belated intervention in June 2001.”  
46.	We were referred to a decision of Turner J., R v An Immigration Officer ex parte John Quaquah, 15 December 1999, unreported. The applicant applied for judicial review, namely an order of certiorari to quash the decision of the Chief Immigration Officer whereby he refused to set aside removal directions set for the applicant’s removal to Ghana. The applicant said that his presence in the U.K. was reasonably required for the purpose of instructing his solicitors acting for him in civil proceedings for malicious prosecution against the Home Office and Group 4. At page 10 of the transcript Turner J. held that the decision of the officer was flawed because there was no indication that he had recognised or taken into account the “minimum” right of the applicant to have adequate time and facilities to prepare his case.   
47.	Thus Mr Starmer submitted that the Deputy High Commission should have had Article 6 in mind when making its decisions on the applications of the two witnesses for visas. The mere fact that an immigration officer may make an unimpeachable decision within the framework of immigration law does not render the decision immune from attack under Article 6 in criminal proceedings. If the decision does interfere with Article 6 rights, then there must be pressing reasons for Article 6 to be overridden. 
48.	Fifth, the failure of the State to discharge its responsibility has resulted in unfairness in that the appellant was unable to call Mr Adedeji and Mr Akerele.
49.	Sixth, if the right vested in the defence to call relevant witnesses is not absolute, any restriction on it must be the least restrictive of the available options- see generally, Van Mechelen and Others v Netherlands [1997] 25 EHRR 647.  
50.	Seventh, if a defence witness cannot attend, the least restrictive option available was for the statements of Mr Abedeji and Mr Akerele to be read pursuant to Section 9 of the Criminal Justice Act, 1967. For a statement to be admissible in evidence pursuant to S. 9, one of the requirements is that no party, upon whom the relevant witness statement is served, objects to it being tendered in evidence under this section (see Section 9(2)(d)). The Crown refused to agree to the statements being read under this section and thus the Court itself had no power to permit them to be read pursuant to this section.
51.	Eighth, to read the witness statements under Section 23 of the Criminal Justice Act, 1988 did not correct the restrictions on the right of the appellant either under English domestic law or under Article 6 of the European Convention. There might well have been a different outcome, i.e. an acquittal, had the witnesses given oral evidence.
52.	Mr Agbamu, who appeared for the Crown in front of us and at trial, submitted a skeleton argument which he expanded in his oral submissions. Broadly speaking, his submissions were as set out in paragraphs 53 to 60 below.
53.	The Crown never objected to the admission into evidence of the statements of Mr Adedeji and Mr Akerele.
54.	It was impossible for the Crown to say whether or not the evidence in those statements was true or false; thus the Crown could not agree to their admission under Section 9.
55.	The appropriate vehicle for their admission was Section 23 and the statements were so admitted with the agreement of the Crown.
56.	Customs and Excise could not do anything to assist with obtaining visas, particularly in the light of the visas being refused due to the failure of the witnesses to satisfy the Deputy High Commission of their finances and thus that they would not stay in the U.K. after the trial.  
57.	The appellant did not challenge the decisions of the Deputy High Commission by way of judicial review or any other means.
58.	The Crown did not seek, before the jury, to cast doubt on the evidence given in the statements. The Crown’s challenge to the defence case focused on the inherent absurdity of taking an unremarkable, everyday item of luggage to the U.K. on behalf of someone she hardly knew and whose address and telephone number she did not know, together with the extraordinarily complicated chain of communication when in England. The Crown also challenged the appellant on her perception of the weight of the wheelie bag and on her evidence re Mr Clarke.
59.	The authorities prayed in aid by the appellant did not assist or were far removed from the factual matrix of the instant case. The authorities on the admission of evidence under Section 23 all dealt with the situation where the Crown sought to have evidence admitted thereby and the defence objected. 
60.	Mr Agbamu put before us an authority which we think helpful namely R v D [2002] EWCA Crim. 990. In that case the defendant was charged with two serious sexual offences on a lady of 81 years old. When the complainant was in hospital the police interviewed her, which was recorded on video. It was common ground that she was not fit to give evidence then or at the trial. The Crown sought to have the video admitted in evidence pursuant to S. 23. The judge ruled it was admissible and rejected a counter application for its exclusion under S. 78 of Police and Criminal Evidence Act 1984. He further ruled its admission did not breach Article 6. The Court of Appeal upheld the judge. At paragraph 34 of the judgment Waller L.J. said:- 
“The judge adopted the right approach in considering ss. 23 and 26 first. He was right in taking the view that it was unlikely there would be a breach of Article 6(3)(d) if in balancing the interests of justice as between victim and defendant the conclusion was that it was in the interests of justice to admit the video in evidence.”
	At paragraph 41 he said:-
“As regards Article 6(3)(d), if the court has concluded that it is in the interests of justice that a statement should be admitted, and if the court carries out its duty to consider the risk so far as the appellant is concerned, it is most unlikely that there will be  a breach of Article 6(3)(d). There is no absolute right that witnesses should be available for cross-examination and the essential question is whether the trial process is fair. ” 
61.	We agree with the trial judge that at the time of his ruling the evidence given by Mr Adedeji and Mr Akerele appeared to be relevant and material to her defence, in particular to the circumstances in which the wheelie bag was handed over by Mama Chardy to the appellant. With the benefit of hindsight it is possible for us to say that the relevance of this evidence became somewhat diminished as a result of the Crown’s stance on the defendant’s case. No attack was made by the Crown on the evidence of this meeting between the appellant and Mama Chardy. Further, no attack was made on the good character of the appellant. 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 Mr Adedeji and Mr Akerele, whilst it could not be said to be irrelevant to that issue, did not, it seems to us, carry the appellant’s case very much further.
62.	Furthermore, the evidence on the issue that the jury had to decide came essentially from that of Mr Clarke and of the appellant. If the appellant was knowingly carrying prohibited drugs then there was always the likelihood that she would lie to a customs officer who stopped her. In our opinion it is implicit in the jury’s verdict that they (or at least the 10 who agreed on guilty verdicts) accepted the evidence of Mr Clarke and rejected that of the appellant, where that evidence diverged.
63.	It is also implicit in their verdicts that they must have accepted the submissions of Mr Agbamu as to the inherent implausibility of the appellant’s case. 
64.	We do not think it necessary to express any opinion on the argument that the State is indivisible. Nevertheless, in our view, the judge was right not to be drawn into a position of reviewing or disapproving of the decisions of the Deputy High Commission. That was not his function. It seems to us a misplaced submission that a judge conducting a criminal trial should be called upon, in circumstances such as prevailed in this case, to pass judgment on the merits or otherwise of the decisions of the Deputy High Commission in order to assess whether or not the appellant could have a fair trial. The judge, in our view 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.
65.	In deciding whether a fair trial was possible a judge is entitled to consider all methods available for evidence to be adduced. We were told that consideration on behalf of the appellant was given to the witnesses’ evidence being given by video link, but that that was not possible due to technical difficulties in Nigeria. Next, the Crown was asked to agree to Section 9. The Crown refused, in our judgment, justifiably. The Crown could not reasonably agree to the admission of statements pursuant to S. 9 when it could not say whether or not the evidence contained in the statements was true. So that left S. 23 as the only appropriate method.
66.	The disadvantage, it is said, of admitting the statements under S. 23, was that the judge was bound by R v McCoy (John) 10 December 1999, [2000] 6 Archbold News 2 to direct the jury in the terms that he did, and that the jury would inevitably place less, perhaps much less, weight on the evidence of Mr Adedeji and Mr Akerele. Further the absence of the witnesses meant the jury could not assess their evidence properly.
67.	Even if McCoy obliged the judge to give such a direction (we note that the facts of McCoy are very different from the instant case) then in our judgment the direction the judge in fact gave was mild. In any event it did no more than remind the jury of what in any event would have been obvious to them i.e. that the witnesses had not been cross-examined and that they were under some disadvantage in assessing how well or badly they would have fared in cross-examination. Furthermore, from the appellant’s standpoint the absence of the two witnesses meant that the risk of their evidence being damaged, had they been cross-examined, was eliminated. 
68.	The essential question is whether the trial process was fair. The judge conducted the necessary balancing exercise to determine whether or not the trial could be fair. He concluded that a fair trial was possible and accordingly refused to grant a stay. Having conducted our own assessment, we unhesitatingly conclude that not only was the judge plainly right in his decision, but also with the benefit of hindsight the appellant did have a fair trial.
69.	We dismiss the appeal.