The Drug Dealer That Never Was

By Panos Koupparis We continue our on-going series of classic miscarriages of justice which have never been put under proper public scrutiny, nor have they been rectified, despite often huge testimony of innocence. Demuni Raja De Silva is a Singhalese seaman being held at Her Majesty's pleasure pending deportation since October 1991.         Prior to that he was serving a very 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. de Silva's deportation has been contrived to avoid yet another legal scandal. He has been the victim of a miscarriage of justice which exposes questionable Custom and Excise practices, their possible collusion with drug smugglers and the fabrication of forensic evidence.         When De Silva's ship docked at Felixstowe in 1989 it was boarded by under-cover Customs officers who asked for him by name and said they had come to collect something. They were acting to information received, but its source and nature still remain undisclosed.         De Silva Located four small packages in the ships hold and gave them to the officers who then arrested him just before his ship sailed, and carried out a drugs test on one of the four packages. They claimed a positive indication for heroin.         In a state of distress as 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.

Analysis A forensic analysis later showed that there was no heroin in any of the packages. When bail was granted, he stayed with his uncle who was a diplomat at the Sri Lanka High Commission in London. At the committal the charge was amended to attempted importation of heroin and an alternative count was added to the indictment, namely the actual importation of class B drugs. A very small quantity of barbiturates was allegedly found by the forensic analysis i.e. 10% Phenobarbitone and 2% Methaqualone.         The prosecution's case was that De Silva 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 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 and excise 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; De Silva had claimed that the unidentified person who had placed the packages 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. De Silva 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. The Trial De Silva was tried before Mr Recorder Colin Woodford at Ipswich Crown Court in March 1990. His Counsel was Matthew 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.         A 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 packages for the jury to examine. The Judge failed to instruct the jury in relation to "alternative" counts and they convicted De Silva on count 1 and 2. A deportation order was also imposed. Inadmissible The fact that he was provided with a Tamil interpreter is grounds in itself for challenging the admissibility of the statements. Tamils are a Moslem separatist group constantly at odds with the Singhalese Government of Sri Lanka. De Silva 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.         Farmer prepared grounds and a detailed advice on the merits of an Appeal against both convictions. Justice Macpherson rejected them and refused Leave to Appeal.         Farmer then prepared a second advice urging de Silva to pursue the Appeal to the Full Court. This was sent to Ralph Haeems and Co., the trial solicitor, on 12 July 1990 but it never reached De Silva. He did not see it until mid-October 1991.         De Silva was now at HMP Wayland in Norfolk. When the refusal notice, form SJ, was handed to De Silva 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.         By 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.         De Silva 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 solicitor also failed to make any progress. Counsel's Opinion A 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 it was free. 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 De Silva's wishes and the solicitor quit. The case was suddenly about to be heard so De Silva wrote to the Court requesting legal-aid and drawing their attention to the forensic issue against count 2. He also rejected Stevens' opinion. He did not receive a reply.         The application was heard by Lord Lane, Mr Justice Hutchinson and Mr Justice Mantell on 23 April 1991. De Silva 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 ground which they had considered. They clearly and conveniently only considered Stevens' opinion. Leave was granted on the no case to answer submission in relation to count 1 and legal-aid for the Counsel only, but no name was entered on the relevant notice.         Demuni Raja De Silva has never received Justice for his ordeal, although he has never stopped seeking it. The DeSilva Case is featured by Scandals In Justice