UK: Armand Atlan
01 November 2008
A miscarriage of justice allegedly involving lies and deception by corrupt police officers and Customs staff on a European-wide scale is to be re-examined by the Criminal Cases Review Commission.
On 5 July 1991, at the Crown Court at Isleworth, Middlesex, Armand and Thierry Atlan and another man, Jean-Pierre Terrasson, were convicted of illegally importing 18 kilograms of cocaine (with a street value of £2-3 million) into Heathrow Airport, London, on 3 November 1990. At the trial, which started in May 1991, the prosecution case was that Armand had organised the importation, using Mr Smolny as the courier from Brazil to Copenhagen and London, and that he had instructed Mr Terrasson, with Thierry as “minder”, to collect Mr Smolny’s suitcase at Heathrow as if in mistake for his own. There was no forensic, photographic or video evidence to substantiate the prosecution case, which relied to a large extent on the accounts given by customs officers of what they had observed.
All four defendants pleaded not guilty and gave evidence. The applicants maintained that Armand worked principally as a jewel trader, but that he did not keep written records because he systematically avoided paying taxes and duties in Brazil. The applicants’ defence centred around a dispute between Armand and a rival jewel trader based in Brazil called Rudi Steiner. They stated that Armand had paid Mr Steiner US$ 200,000 in advance for diamonds, which Mr Steiner had failed to deliver to the applicants as agreed in Copenhagen on three occasions: 28 August, 29 September and 3 November 1990. On this last occasion, since, as before, Mr Steiner did not appear, Thierry and Mr Terrasson, who had gone together to collect the diamonds, returned immediately to Heathrow, where Thierry removed Mr Terrasson’s, not Mr Smolny’s, suitcase from the carousel. The applicants contended that Mr Steiner was an informer for Customs and Excise. They claimed that, in order to avoid repaying his debt and for fear that the applicants would discredit him amongst other Brazilian traders following the non-delivery of the diamonds, he had arranged falsely to implicate them in the importation of cocaine.
Under cross-examination the customs officers involved in the case refused either to confirm or deny whether or not they had used an informer. No evidence relating to an informer or to Rudi Steiner was served on the defence or put before the judge.
The trial judge dismissed the defence relating to Steiner in a manner which left the jury little scope to grant it any credence:
Just consider in your mind what it would be like to try and induce the British Customs Service, even as an English subject, to co-operate with you in such a way. ...[I]t is worth just looking at the costs to Mr Steiner if Mr Atlan’s story is right ... to see what was in it for Mr Steiner.
His costs: he provided initially some samples [of diamonds] worth seven or eight thousand ... US dollars. ... He lost the cost of sending [his representative] diagonally across the world and back [with the sample] with a bit of time in a hotel. ...
He lost the cost of Mr Smolny’s fare in the Euro-class Sao Paolo/Copenhagen/London return, and he lost the cost of Mr Smolny’s London hotel ... .
[T]he case is that he lost all those things and whatever is the cost of 18 kilograms of 90 plus percent pure cocaine in Brazil. No doubt that cost is very, very much less than it would be in London, but ... you may think that 18 kilograms of high quality cocaine like that would cost a substantial sum, albeit nowhere near three million pounds, in the providing country. I put those bits and pieces of information together because it is not altogether obvious when one just runs through the story that that is what the information amounts to, but you may think it does, and it may be relevant to considering the likelihood of somebody behaving in the way Mr Steiner is said to have done.
On 5 July 1991 the jury, by a majority of ten to one, convicted the applicants and Mr Terrasson of importing the cocaine. Mr Smolny was acquitted. On 12 October 1991, after an inquiry by the judge under the Drug Trafficking Proceedings Act 1986, Armand was sentenced to eighteen years’ imprisonment and a confiscation order of £1,918,489.60 with a further ten years’ imprisonment to be served in default of payment. Thierry and Mr Terrasson both received sentences of thirteen years’ imprisonment and Thierry was also ordered to pay a confiscation order of £6,140.66 or serve a further six months in prison.
In spring 1994 the applicants learned from the French press (
Libération) that a Swiss undercover police officer, Commissioner Cattaneo, had written a report, called “the Mato Grosso Report”, concerning his 1991 investigation into drug trafficking between Brazil and Europe. In early 1995 the Atlans’ solicitor obtained a copy of the report. It mentioned Rudi Steiner, describing him as one of three regular informers of the Brazilian, Danish and French police. He was said to have an interest in stolen jewels and a long-term involvement in the traffic from Brazil to Europe of large quantities of cocaine, which he was able freely to obtain from the Brazilian police. In a letter dated 4 December 1995, the Swiss Federal Police Office informed the applicants’ solicitors that the report was the property of the Tessin cantonal police and that in 1991 a meeting was held at Federal Police headquarters in Bern concerning the Mato Grosso investigation but that it was not possible to provide any further information in this connection. The applicants provided a copy of the report to the prosecution, which declined to confirm or deny its authenticity or the truth of its contents, and repeated that there was no undisclosed material relevant to the issues at trial.
The applicants pursued leave to appeal. They maintained that the Mato Grosso Report substantiated their suggestion at trial that Mr Steiner had access both to stolen jewels and cocaine and that he had an established relationship with law enforcement agencies in Europe. In their submission, the fact that the jury had not had before it evidence relating to these matters, and the fact that the judge, ignorant of the true facts, had characterised Mr Steiner in his summing up as an unknown Brazilian businessman, rendered their convictions unsafe.
On or about 19 October 1995 the prosecution informed the defence that, contrary to earlier statements, unserved unused material did in fact exist, which the prosecution wished to place before the Court of Appeal in the absence of the applicants or their lawyers. The prosecution then applied
ex parte to the Court of Appeal for a ruling whether it was entitled, on grounds of public interest immunity, not to disclose this material. The applicants objected to the holding of an
ex parte hearing, in writing on 27 November 1995 and orally before the Court of Appeal on 7 December 1995, submitting
inter alia that the court was a tribunal of both fact and law and could be adversely influenced by material which was wrong or inaccurate.
The Court of Appeal dismissed the objections and heard the prosecution’s
ex parte application. It decided not to rule on the application unless or until such time that, having considered the applicants’ application to introduce new evidence, it became necessary to do so. The hearing of the applications for leave to appeal against conviction and to bring new evidence commenced on 18 December 1995. The Court of Appeal indicated its view that the Mato Grosso Report would not be admissible in evidence because,
inter alia, its author could not be found to vouch for its accuracy and be cross-examined on its contents.
At the applicants’ request the hearing was adjourned on 19 December 1995 and legal aid was granted to enable their solicitor to travel to Italy where, it was believed, Rudi Steiner was in custody awaiting trial on a charge of smuggling cocaine. However, the Italian authorities were unwilling to assist the applicants without the backing of a formal letter of request from a competent authority. The applicants therefore applied to the Court of Appeal for a letter requesting the Italian authorities to give their solicitor access to the criminal proceedings there. On 10 June 1996 a different constitution of the Court of Appeal ruled that in principle it had jurisdiction to issue such a letter of request. On 19 July 1996, however, the originally constituted court decided that the applicants’ proposed request to the Italian authorities was too wide-ranging and, even if more restrictively drawn, unlikely to elicit information which would be either admissible or of assistance in the appeal. It therefore decided that it was not in the public interest to issue a letter of request, and adjourned the case until after the conclusion of Mr Steiner’s trial in Italy in the Autumn of 1996. In the event, however, Mr Steiner was released on bail and his whereabouts were unknown at the time of the applicants’ appeal hearing in February 1997.The Atlans’ solicitor was able to obtain a number of documents relating to the Italian proceedings, including transcripts of interviews with Mr Steiner, arrest warrants and a list of his previous convictions. He was also able to obtain a statement from Commissioner Cattaneo, the Swiss police officer who had prepared the Mato Grosso Report. In his statement the Commissioner confirmed the authenticity of the report. He stated that he had been introduced to Mr Steiner by a Danish police officer and had become Mr Steiner’s “handler”, passing information to the British authorities during the investigation into the applicants. According to the Commissioner’s statement, his British “contact” had been a customs officer named Martin Crago, whom he had contacted at the British Embassy in Brasilia. He believed that Mr Steiner had spoken to Mr Crago several times and had sought payment for information he had given him. The Commissioner concluded by indicating that he would be willing to appear as a witness in the Court of Appeal. On 10 January 1997 the applicants added a further ground of appeal, alleging that the prosecution had failed to make full disclosure of the evidence in its possession concerning Mr Steiner, and that the lack of full disclosure rendered their convictions unsafe.
The day before the hearing of the appeal, Commissioner Catteneo informed the defence lawyers that his superiors in the Swiss Police Force had refused him authorisation to attend. The applicants’ counsel suggested to the Court of Appeal that this decision might have resulted from communication between British Customs and Excise and the Swiss authorities. Mr Crago was called by the defence to give evidence. He denied that he had been Commissioner Cattaneo’s contact and declined to answer any question about Mr Steiner. On 16 February 1997, after hearing the applicants’ application to admit new evidence and holding an
ex parte hearing in the absence of the defence lawyers, the Court of Appeal ruled that justice did not require disclosure by the Crown of the public interest immunity evidence. The applicants and their lawyers were not permitted to be present when the court delivered its judgment on disclosure.
Arman and Thierry Atlan subsequently made an application to the European Court of Human Rights on the basis that they were deprived of a fair trial, in breach of Article 6 §§ 1 and 3 (d), which state:
1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal; ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...
The European Court concurred, and upheld the application in the strongest terms:
The applicants’ defence at trial was that they had been falsely implicated in the importation of cocaine by a man known to them as Rudi Steiner, whom they believed to be a Customs and Excise informer. No evidence relating to an informer or to Mr Steiner was served on the defence or put before the judge and under cross-examination the customs officers involved in the case refused either to confirm or deny whether or not they had used an informer or heard of Mr Steiner. Before and during the trial the prosecution had asserted that there was no further unused material evidence in their possession which had not been served on the defence (see paragraphs 14 and 17 above)…. However, over four years after the applicants’ conviction and prior to the hearing of their appeal following discovery by the defence of new evidence about Mr Steiner’s activities, the prosecution informed them that, contrary to earlier statements, unserved, unused material did in fact exist. Following an ex parte hearing, the Court of Appeal decided that it was not necessary to disclose this evidence to the applicants (see paragraphs 23-24 and 30-31 above)... It is clear to the Court, and the Government do not seek to dispute, that the repeated denials by the prosecution at first instance of the existence of further undisclosed relevant material, and their failure to inform the trial judge of the true position, were not consistent with the requirements of Article 6 § 1 (see also R. v. Davis, Johnson and Rowe ([1993] vol. 1 Weekly Law Reports p. 613 § 63)…. The issue before the Court is whether the ex parte procedure before the Court of Appeal was sufficient to remedy this unfairness at first instance. Although the nature of the undisclosed evidence has never been revealed, the sequence of events raises a strong suspicion that it concerned Mr Steiner, his relationship with British Customs and Excise, and his role in the investigation and arrest of the applicants. It is true that the applicants did not have the Mato Grosso Report at the time of their trial in the Crown Court. However, their allegations concerning Mr Steiner were central to their defence, and they expressly asked the prosecution if they had any undisclosed, unused material relevant to this issue. For the reasons set out in the above-mentioned Rowe and Davis judgment, the Court considers that the trial judge is best placed to decide whether or not the non-disclosure of public interest immunity evidence would be unfairly prejudicial to the defence (ibid., § 65). Moreover, in this case, had the trial judge seen the evidence he might have chosen a very different form of words for his summing up to the jury…. In conclusion, therefore, the prosecution’s failure to lay the evidence in question before the trial judge and to permit him to rule on the question of disclosure deprived the applicants of a fair trial. It follows that there has been a violation of Article 6 § 1 of the Convention."
It is on the basis of the European Court ruling that Armand Atlan has asked the CCRC to reconsider his case and has commenced proceedings for misfeasance in public office. Armand lost most of his wealth and many years of his life in English jails. He also lost his son. Thierry died in jail.
European readers who have any further information re Rudi Steiner are asked to forward any such information to Community Law Project at clp106@hotmail.com
Source: CASE OF ATLAN v. THE UNITED KINGDOM (ECHR Application no. 36533/97)