By Panos Koupparis
Demuni Raja DeSilva is a Singhalese national being held at HMP Pentonville pending deportation since Monday 28 October 1991. Prior to that he was serving a long prison sentence. He was convicted of attempting to import two kilos of heroin. That conviction was quashed by the Court of Appeal while, behind the scenes, it orchestrated a determined cover-up of the truth. DeSilva's deportation has been contrived to avoid yet another legal scandal. He has been the victim of a miscarriage of justice which exposes questionable Customs and Excise practices, their possible collusion with drug smugglers and the fabrication of forensic evidence. BackgroundArrestDeSilva is a seamen whose ship docked at Felixstowe in 1989. The ship was boarded by under-cover Customs officers who asked for him by name and indicated that they had come to collect something. They were acting on information received but its source and nature still remain undisclosed.False PositiveDeSilva located four small packages in the ship's hold and gave them to the officers. They arrested DeSilva, just before his ship sailed, and carried out a drugs field test on one of the four packages. They claimed a positive indication for heroin.PACEDeSilva was in a state of distress. He spoke no English. A Tamil interpreter and duty solicitor were provided and he was interviewed. He protested his innocence and pleaded ignorance as to the contents of the packages. He was charged with importing heroin. Almost every provision of the Police and Criminal Evidence Act was violated during those interviews. His arrest as a heroin smuggler "£190,000 Heroin Seized" was front page news in the Sri Lankan press. |
AnalysisA forensic analysis latter showed that there was no heroin in any of the packages! Bail was granted. He stayed with his uncle who was a diplomat at the Sri Lanka High Commission in London. (He was posted abroad shortly after the trial.) At the committal the charge was amended to an attempted importation of heroin and an alternative count was added to the indictment, namely, actual importation of class B drugs. A very small quantity of barbiturates was allegedly found by the forensic analysis ie; 10% Phenobarbitone and 2% Methaqualone.AlternativesThe prosecution's case was that DeSilva was a courier who had been "duped" into a "rip-off" and must have believed that the packages actually contained heroin. There was no evidence to support this hypothesis. An alternative count was added in case the first one failed. It was to the effect that he actually imported the "drugs" which the forensic scientists claimed were in the four packages. For this to succeed they had to prove that he knew each package contained a controlled drug although, again, there was no direct evidence of this. The Customs conceded that the contents of the packages were "useless and valueless."The case was complicated by the issue of duress which was raised primarily against count 1. Simply stated; DeSilva had claimed that the unidentified person who had placed the packets in the hold in Karachi had threatened him with dire consequences unless he kept quiet and co-operated by showing someone named "Tony" where they were on arrival in Europe. This issue could not be proved or disproved by either side during the trial. DeSilva should probably have received the benefit of the doubt. By convicting him the jury rejected duress as a defence, or so the legal argument goes. In fact their actual verdict shows that they did not understand the case at all. TrialThe First TrialDeSilva was tried before Mr Recorder Colin Woodford at Ipswich Crown Court in March 1990. His Counsel was Mathew Farmer. The Judge rejected submissions of no case to answer against count 1 and the inadmissibility of the pre-arrest, interview and translation evidence even when it was clearly established that the Tamil interpreter could not translate words crucial to the defence. At the end of the first trial, which lasted eight days, a juror asked to see the exhibits. The trial was abandoned by the Judge when Customs claimed that the "drugs" were locked in a safe and the key holder was not immediately available.The Re-TrialA second trial was held before the same Judge a month later. It lasted four days. The Tamil interpreter now knew every contentious word. The exhibits were produced, according to Farmer, in their original four packages for the jury to examine. The Judge failed to instruct the jury in relation to "alternative" counts and they convicted DeSilva on count 1 and 2! He was sentenced to six years on count 1 and one year concurrently on count 2. A deportation order was also imposed.LanguagesThe fact that he was provided with a Tamil interpreter is grounds in itself for challenging the admissibility of the statements although they fall foul of PACE for other reasons. Tamils are Hindu separatist waging a fanatical terrorist war with the Singhalese Government of Sri Lanka. DeSilva is a Buddhist Singhalese with a brother in the National Army and an uncle in the Diplomatic Service. Tamil and Singhalese are quite different languages, a fact lost on Recorder Colin Woodford. The Law requires that official legal interpreters and translators must be independent, politically unbiased and neutral!Appeal AdviceFarmer prepared grounds and a detailed advice on the merits of an Appeal against both convictions. The Single Judge, Justice Macpherson, rejected them and refused Leave to Appeal. Farmer then prepared a second advice urging DeSilva to pursue the Appeal to the Full Court. This was sent to Ralph Haeems & Co, the trial solicitor, on 12 July 1990 but it never reached DeSilva. He did not see it until mid-October 1991.DeSilva was now at HMP Wayland in Norfolk. When the refusal notice, Form SJ, was handed to DeSilva he was asked to sign for it by the prison's legal-aid officer. Unknown to him he had been asked to sign an official appeal Abandonment Form! The Court abandoned his Appeal. RenewalBy pure chance his case papers were seen by someone with a little knowledge of scientific procedure and chemistry. It was immediately apparent that there was a serious flaw in the prosecution's forensic reports. Initially this was regarded as a simple error or oversight but recently the full implications of this have become apparent. DeSilva renewed his application for Leave to Appeal before the Full Court within time. He retained a new solicitor local to the prison on green-form legal-aid to assist him. The green-form expired by the time the Court replied that his Appeal had been abandoned! A second local solicitor also failed to make any progress.OpinionsA London solicitor undertook to obtain an opinion from Counsel regarding the fresh evidence to support his application for legal-aid but they asked Stuart Stevens to write a gratuitous opinion where he could not be held accountable because he was not doing it for money! He echoed Farmer's main grounds against count 1 but he contradicted any suggestion that count 2 might be challenged and ignored the issues raised by the forensic evidence. His opinion was served on the Court against DeSilva's wishes and the solicitor quit! The case was suddenly about to be heard so DeSilva wrote to the Court requesting legal-aid and drawing their attention to the forensic issue against count 2. He also rejected Stevens's opinion. He did not receive a reply.The Application was heard by Lord Lane, Mr Justice Hutchison and Mr Justice Mantell on 23 April 1991. DeSilva was not represented or brought to the Court. I was present. Their Lordships declared the abandonment a nullity and granted Leave to Appeal on the one grounds which they had considered. They clearly and conveniently only considered Stevens's opinion. Leave was granted on the no case to answer submission in relation to count 1 and legal-aid for Counsel only but no name was entered on the relevant notice. MistakesI informed DeSilva of the result by post the same day. A month later he was officially informed by the Court and his former solicitor that his application had been refused! After frantic enquiries by the prison staff the Court admitted that there had been a mistake. They were asked to fax a written confirmation immediately to the prison by the officers who were fearful of DeSilva's deteriorating state of mind!Another solicitor was approached to try to salvage the situation regarding count 2, Mrs Wrench of Dresdens, 42 Tavistock Street, Strand, London, WC2 7PD. The Court refused to transfer his legal-aid on the grounds that he did not have any! Further applications were made on the prescribed forms, citing the specific provisions of the relevant Acts for an extension of legal-aid. They were all refused. PromisesDeSilva was asked to confirm which of the two Counsel he wanted to represent him, Farmer or Stevens. The Court proposed Farmer and sent him written assurances, via Mrs Wrench, that the Registrar had been active behind the scenes. He was urged to trust Farmer to look after his best interests and so on. Mr Edwards, the Court's case lawyer acting for the Registrar, invited DeSilva to draft his own grounds which the Court would ensure Counsel presented by removing his discretion in the matter!The fresh grounds were matters of specialist scientific knowledge. It was unreasonable to expect DeSilva to formulate them given his language difficulties and lack of scientific training. This job was for a forensic expert, in fact, DeSilva should have had a defence report prepared for the trial. The flaw would have been detected leading to an acquittal on both counts. Farmer was responsible for that omission. He missed the most important defence point altogether. Farmer was asked to confirm that count 2 would be challenged and that he would raise the forensic issues. He did not give a reply. ExpertTwo weeks before the hearing an independent forensic expert, Dr Candy, was asked to consider the prosecution's reports. He was so concerned that he wrote a preliminary report free of charge. Copies were sent to Mrs Wrench and Farmer. It became impossible to contact anyone or obtain any reaction to the report.A few days before the hearing DeSilva arranged for the report to be formally served on the prosecuting solicitor and the Court with a further request for an extension of legal-aid, leave to call a witness and leave to adduce further grounds for Appeal against count 2. He received a standard acknowledgement slip. QuashedThe Appeal was heard on Monday 28 October 1991 in Court 7 before Lord Justice McCowan, Mr Justice Tucker and Mr Justice Ian Kennedy. They ridiculed the prosecution's case on count 1 and quashed DeSilva's conviction without reservation. Count 2 was not challenged! The false forensic evidence was not mentioned or the two grounds which arise from it. The Court and Farmer perpetrated a white-wash by simply ignoring the whole issue. It was a ruthless deception. DeSilva was sent to Pentonville to await his speedy deportation for a ludicrous conviction secured on what may well have been deliberately fabricated forensic evidence. Even the interpreter at the Appeal hearing was another Tamil! He did not say a word to DeSilva during the entire proceedings.Their Lordships ruled that the trial Judge had been quite right to allow the disputed Tamil translator's evidence to be used. Paradoxically, DeSilva should Appeal to the House of Lords on this ruling, despite the favourable Judgement, because of the adverse effect it has on count 2. He has only 14 days in which to lodge such an Appeal. The full significance of the forensic evidence has been confirmed by the Court of Appeal's quashing of count 1 on the same arguments rejected by both the Single and trial Judge. They avoided the forensic issue entirely, ignored its impact on count 2 and precipitated DeSilva's immediate deportation. All very neat and tidy. Bail or Conditional Release from CustodyDeSilva is not an illegal immigrant. He is a seaman who was arrested on his ship. He was probably innocently set-up by a real drug smuggler working with Customs and Excise as an informer or worse. He was granted bail while facing a charge which carried a substantial prison sentence. He was wrongfully convicted. He has spent two years in prison, 18 months of which were wrongful and he has fully served the six months arising out of the one year sentence on count 2. That conviction would never stand up to a fair and proper Appeal hearing. It would be quashed as surely as count 1 was quashed!There is no justification for keeping DeSilva in one of Britain's worst jails for possibly several months while his status is resolved other than to perpetuate the cover-up and amplify the magnitude of the injustice he has suffered. Forensic FlawProsecution ReportsThe prosecution was faced with a dilemma right from the beginning. They had no evidence. They solved the problem by creating it! Mr P J Cain created the actual exhibit used to convict DeSilva by mixing the contents of the four packages into one lot before carrying out the chemical analysis! In effect he had destroyed the original evidence and falsified the exhibit. This procedure is fatally flawed in scientific and legal terms.Mr P J O'Neil was then given the new exhibit, possibly without knowing how it came about, to produce the "evidence" necessary for the "rip-off" hypothesis. All that has collapsed but we are still left with one conviction secured on Cain's fabricated exhibit! Farmer has confirmed that Customs produced four packets each filled with powder for the jury to examine. The Judge directed them to look at those exhibits to help them determine DeSilva's case. They were not told that the contents had been homogenised and then decanted back into the four packets. One wonders why the first trial collapsed the moment these exhibits were requested and why the prosecution's experts mixed the contents of the packages in the first place? Appeal against Count 2A specialist pharmacologist would confirm that dozens of individual Asian and Oriental herbal remedies, tonics and cure-alls could be formulated from the ingredients that Cain and O'Neil claim were in those packets. Different mixtures could ease coughs and constipation, steady nerves, induce sleep, cure impotence and so on. It could have been argued that these packets were simply four concentrated herbal remedies destined for immigrant populations in Europe.A chemist would confirm that barbiturates are fairly simple organic compounds which are synthesized by a process of condensation. Simply mixing the precursors precipitates them. Furthermore, there are many closely related members of the barbiturate class of compounds which are not controlled drugs. The differences are very slight and their presence could lead to false positive indications in some analysis tests or even precipitate the actual controlled substances themselves. There are some 11 million known compounds, 10 million of them are organic! It would be quite impossible for any scientist to completely rule out all the possible combinations of compounds in the original four packets which could have reacted by combination or decomposition to produce the final, fabricated mixture. And then only if one accepts without question the validity of the prosecution's analysis and their methods which actually leave quite a lot to be desired! DefenceDeSilva could demonstrate that he was not necessarily involved in the importation of any drugs and he would not normally be expected to know the precise formula of third world remedies. He could have successfully challenged the entire case against him for want of a defence forensic report, considered to be a basic legal right these days after Guildford, Birmingham and the Maguires.Notwithstanding the serious breaches in PACE which should have rendered the spoken and translated evidence inadmissible, the fact that he faced an unfounded first count of such gravity seriously prejudiced his chances of a fair trial in relation to the minor charge. The quashing of count 1 is fresh evidence against count 2 and the court should have dealt with it rather than just ignore it. JusticeFinally, if one accepts that the prosecution were right and DeSilva did knowingly import a controlled drug then we are left with the ludicrous proposition that he went to all this trouble and risk to import what they themselves called "a useless and valueless powder!" The jury plainly did not grasp the fundamentals of the entire case therefore their verdict on 10% of it cannot still be viewed as 100% right when they were 100% wrong on 90% of it!
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