England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

Strand

London W2A 2LL

Friday 11th July 1997

B e f o r e

LORD JUSTICE JUDGE

MR JUSTICE LONGMORE

MR JUSTICE BRIAN SMEDLEY

R E G I N A

v.

ANDREW DAVID JACKSON

MICHAEL WAYNE BRADY

THOMAS JAMES PACKER

DAVID POWELL

PATRICK JOSEPH KEARNS

(Computer Aided Transcription of the Stenograph Notes of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 831 3183

Official Shorthand Writers to the Court)

MR JC PRICE appeared on behalf of the Appellant Jackson.

MISS S CRANE appeared on behalf of the Appellant Brady

MR N WEBB appeared on behalf of the Appellant Packer

MR A WESTERN appeared on behalf of the Appellant Powell

MR W HARRIS appeared on behalf of the Appellant Kearns

MR S BRAND appeared on behalf of the Crown.

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE JUDGE: On 13 May 1997 we rejected the single ground of appeal advanced on behalf of all five appellants in this case, including, Powell and Kearns, that the indictment was a nullity.

We can now turn to the remaining grounds of appeal against convictions advanced on behalf of Jackson, Brady and Packer after a full day's hearing on 13 May and a very short further argument advanced by Mr Webb on behalf of Jackson this morning. These appellants were convicted on 1 April 1996 in the Crown Court at Birmingham, before His Honour Judge Farrer QC and a jury, of conspiracy to rob on a day unknown between 12 August 1994 and 13 September 1994, and possessing a prohibited weapon between the same dates, the weapon being identified as a self-loading, smooth bore gun which was not chambered for .22 rim fire cartridge and had a barrel less than 24 inches in length.

Following the death of a pedestrian on the road on 9 September 1994 it emerged that the car involved in the accident was owned by Kearns, who was the driver at the material time. Brady was a passenger. Kearns had escaped from custody on 2 August 1994. He was therefore unlawfully at large. The results of their enquiries led police officers to raid a 5th floor flat at 22 Brookpiece House, Druid's Heath, Birmingham in the morning of 12 September 1994. Brady was not present at the flat at that time although he visited it on a fairly regular basis. The other four appellants were found there. The police arrested Packer, who was dressed in boxer shorts, in the corridor, Jackson and Kearns, who were both in the second bedroom, and Powell, who was in an armchair in the living room next to the balcony door. The Crown's case was that this flat was used as a communal home by the appellants and as a safe house for their criminal activities. The tenancy was in the name of Richard Packer, a brother of the appellant Packer, who was the de facto occupier. Jackson told the police that he had been living at the flat for two and a half to three months.

During the course of the police raid a civilian witness saw a holdall fall from an upper floor into some bushes. When the police eventually recovered it, it was found to contain a distinctive sawn-off shot gun. During the course of the search of the flat the police found a variety of items of stolen property. These included two separate sums of £500 and £140 in cash which were found under and in the bed in which Packer had been sleeping. More specifically £500 was found in a plastic roll between the edge of the base of the bed and the mattress, and £140 was discovered on the mattress beneath the under-blanket and sheet. Each of these two bundles of notes included one £20 note with more specific markings on them, which demonstrated that both had come from a robbery committed on 5 September. Some of the other articles could be traced to vehicles which had been stolen and used in the course of armed robbery. This evidence linked the appellants with a number of crimes.

A total of six robberies were committed during the period between 13 August and 5 September. In the course of each of these robberies the criminals wore scarves and balaclavas to avoid detection.

On 13 August 1994 a "newsmarket" at Druid's Heath was robbed. One of the robbers had a scar above his lip. It was suggested that this robber was Kearns. £600 was stolen. Two days later a green Rover 620 car was stolen in Shirley. Three days afterwards, on 18 August, another robbery took place of a newsagency in Yardley Wood. Approximately £400 in cash together with the till were stolen. The green Rover stolen on 15 August was used by those responsible. On the following day another robbery of a post office in Northfield occurred. Again the green Rover was used at the scene. It was observed driving away from the area of the robbery and after it had been dumped a witness saw four youths run from the car to a waiting white transit van containing two people. Approximately £19,000 in cash and notes were stolen.

On 22 August Packer and Jackson paid £428 to take a holiday in Majorca and they left England on 23 August. They did not return until 7 September. Accordingly neither of them could have played any active part in the next three robberies.

On 24 August Powell paid £3,100 in cash for a red Peugeot 205 car. Two days later, on 26 August, another robbery occurred at a post office in Maypole. A silver Maestro was used in this robbery. This vehicle had been stolen on 26 August itself. The robbery was partly videoed as it took place and from still photographs taken from the video the distinctive Browning sawn-off shotgun could clearly be identified.

On 2 September 1994 an attempt was made to rob the post office at Hall Green. In fact the robbery was thwarted and nothing was stolen. The postmaster in the post office heard a "click" from the gun carried by one of the robbers but it was not discharged. A maroon Sierra was used in the course of this robbery and like the silver Maestro used on 26 August it had been stolen on the same day as the robbery. There was a positive identification of Brady at the scene of this crime. The identifying witness said that she saw two men standing by the side of the road before they went into this post office, saw them enter and observed one of them come out. She noticed that the man she identified as Brady was carrying a toolbag and wearing a jacket. She was later to describe how she thought that she recognised the toolbag, exhibit 74, and that the jacket, exhibit 208, was "very similar" to the jacket worn by the man who came out of the post office. It was the only such identification at any of the robberies. Criticism is directed at the way the judge dealt with this aspect of the case.

On 5 September 1994 the post office in Wythal was robbed. £3,830 was stolen. The money stolen included two £20 notes with figures written on each note. This meant that they could be positively identified. These were the notes later found by the police in and under the bed used by Packer. A grey Fiesta was used in the course of this robbery and it too had been stolen on the same day. Before the robbery took place this vehicle had been seen in Station Road, Wythal, with a red Peugeot 205 in the immediate vicinity. After the robbery the grey Fiesta was dumped there and some tyre tracks were photographed. These proved to be tyre tracks consistent with having been left by a Peugeot 205 car.

On 9 September, as indicated earlier, Kearns was driving his car when there was a collision in which a young pedestrians was killed. Brady was his passenger at the time.

Apart from the gun thrown out of an upper floor and the money found under and in Packer's bed, searches by the police at 22 Brookpiece House revealed the green bag (exhibit 74), and also the Peugeot 205 which Powell had purchased on 24 August. Inside that car a jacket connected with the grey Fiesta used in the Wythal post office robbery was found. Scientific evidence linked the tyre tracks found beside the dumped grey Fiesta on 5 September with the type of tyres fitted to Powell's Peugeot. The following items were found: documents relating to the car owned and driven by Kearns in the fatal road traffic accident, in the Peugeot; documents relating to the Peugeot itself, in the bedroom used by Packer; two sets of keys to it, in the kitchen; a pair of gloves taken from the Fiesta, in the bedroom used by Jackson; cards and documents relating to the green Rover, in the kitchen; and in Jackson's bedroom a newspaper cutting relating to the Northfield robbery.

Brady was arrested in the early hours of 13 September at 28 Coleville Road, Balsall Heath. The original occupier of these premises was a man called Jason Storer. The police found a sock which contained nine live shotgun cartridges. They also found the jacket (exhibit 208). At one stage it was reported that Brady said that the jacket was his jacket but he was later to deny that it was. Brady gave a false name, Hallam. Scientific evidence linked three of the cartridges found in the sock with the Browning gun: the evidence suggested that they had been loaded in it. Kearns had been living at the same address while "on the run". He had tried to assume Storer's identity. His efforts included a forged birth certificate in Storer's name with Kearns' date of birth recorded on it. A further link between these two houses was that bills relating to Storer were found in Jackson's bedroom at 22 Brookpiece House. Kearns was later to give evidence that he himself was responsible for placing the cartridges into the sock. The circumstances in which he, and Powell, came to give evidence at trial provide a major feature of this appeal.

Save for the interview with Thomas Packer, it is unnecessary to relate the results of the interviews between the police investigating these offences and each of the appellants in detail. However, Packer was to say that he knew nothing about any of the robberies, nor about the gun, that he had gone away on holiday in August with some money from the sale of cars, savings and spending money from his mother, and that the money found in and under his bed was not his money and he had no knowledge of how it happened to be there. He said he wished the money was his but that it was not. He also said that he could not tell the police who owned the Peugeot 205 and asserted that he was scared "to death" of Powell. He did not tell the police that Powell had come into his room and woken him up on the morning of 12 September and he suggested that the money must have belonged to whoever was sleeping in his bed while he was away on holiday. He said that his brother John had a set of keys to the flat, so had his mother, so had his brother Richard and there was another set floating about. That made four sets of keys, and he had none. He subsequently said there were three sets - his set, Jackson's, and his mother and Richard had one set between them. He did not say that Powell had a set. As to Kearns, he said that Kearns had never stayed at the flat with him. These assertions and denials become relevant when the evidence given by Packer to the jury at trial is considered.

The case was committed for trial on 14 February 1995. On 16 February an information report was made by the police. This recorded that the police had received information from Brady that he believed that Alan Powell, brother of the appellant Powell, had kept the shotgun used in these crimes and that it had been taken from a flat occupied by a man called Darren Morgan and Jason Storer. Both Alan Powell and Storer were prosecution witnesses. Storer's witness statement was read at trial. Alan Powell was neither called nor was his statement read. The contents of this report were not disclosed to counsel for the Crown until the trial began.

On 5 May 1995, as already narrated in the earlier judgment, the case was listed for directions at Birmingham Crown Court before Judge Alton. It was suggested that Packer might be willing to tender a plea to the handling offence and indeed thereafter to give evidence for the Crown. The prosecution therefore agreed that the terms of his conditions of bail could be varied to enable him to report to a different police station and at a different time to his co-accused. Another aspect of some of the comings and goings which were to be a feature of this case was that Kearns arranged for his solicitors to forward a letter of complaint by him to Packer about the pressure Packer was allegedly putting him under in relation to the forthcoming trial.

In January 1996, while on bail, Kearns committed an armed robbery at a post office in King's Heath.

On 6 March His Honour Judge Farrer gave his rulings in relation to the fresh three count indictment. As already recorded in the judgment given on 13 May 1997 two indictments were prepared, one containing two counts and the second containing one count. Powell immediately pleaded guilty to both counts in the first of these indictments. Counsel for the Crown opened his case on 7 March. On 11 March Kearns pleaded guilty to both counts. He asked for the January robbery to be taken into consideration. Unlike Powell's plea, this plea took place in the presence of the jury. Thereafter the jury was informed that, like Kearns, Powell had pleaded guilty. At this early stage of the trial the Crown considered the possibility of calling both Powell and Kearns as witnesses. Mr Brand for the Crown was given to understand by counsel acting for each of them that neither had any intention of giving evidence for the prosecution. The judge however had agreed that counsel for Powell and Kearns could continue to attend the trial to protect their interests and from time to time to give them advice about the progress of the case.

On 12 March the judge rejected an application on behalf of Packer that the Crown should be required to call his brother Richard as a witness. His decision is criticised on behalf of Packer, although without any great enthusiasm and on the clear understanding that, if this point stood alone, it would not be sufficient to persuade the court to set aside this conviction. In the meantime Mr Brand had been given either copies of or the information contained in the police report dated 16 February. He immediately made an application to the trial judge for a public interest immunity order. The judge agreed that it was not necessary for Mr Brand to disclose this material. However, Mr Brand was concerned that, although this information had been provided for the police by Brady in the presence of his then solicitor, his own counsel, Mr Morris, might be ignorant of it. He decided that he should begin by disclosing the information to Brady's counsel. Thereafter, and the precise sequence of events is now unclear, he disclosed the same information to all counsel at the trial. This late disclosure is also a matter of criticism.

The defence evidence began on 14 March. Brady gave evidence. On 18 March Jackson gave evidence. Before he was cross-examined Mr Brand sought leave to ask him questions about the criminal convictions of Powell and Kearns and, leave having been granted, he did so on the basis that Jackson was denying any knowledge of their criminal activities although they were his close associates. Jackson was also asked whether the jury would be likely to hear Powell and Kearns give evidence to support his denial of involvement. The way in which he was cross-examined by Mr Brand is the subject of criticism. Finally on 19 and 20 March Packer gave evidence. The memorandum of 16 February was then disclosed to his counsel. An application was made for the jury to be discharged, which the judge rejected. He was also cross-examined about the letter sent to him by Kearns. Perhaps more significant, the effect of Packer's evidence was to lead the Crown to make an application to call Kearns and Powell to give evidence in rebuttal.

The significant features of Packer's evidence at trial which led to this application can be briefly summarised. He maintained his innocence. He said that the first that he knew of the police at the flat was when Powell had woken him up. He did not know when or how Kearns had ever entered the flat. He presumed that Powell had let him in. Powell had put the money between the duvet cover and the mattress in the bed when he had woken him up. He did not know when or how Kearns came into possession of the gun but the gun was his. This information had come to him when he had discussed the case with Powell and Kearns while they were on remand when they admitted they were responsible for the robberies and Powell had arranged for a set of keys to be cut which gave him access to the flat. He said that he was scared of both Powell and Kearns who had threatened him while on remand and he asserted that they had tried to set him up by going "Queen's evidence" while telling other lads that he (Packer) was going to be a "grass". He was accordingly cross-examined about the letter of complaint received direct from Kearns.

After Packer had given this evidence, and Powell and Kearns had been notified of it by their counsel, an indication was received by Mr Brand that both of them would be willing to give evidence to refute the allegations made against them by Packer. Statements were prepared and served on the defence as notice of further evidence. The question was raised with Judge Farrer. From the transcript it appears that counsel for Packer conceded that the application for the admission of Powell's evidence was justified as his client had "gratuitously opened up" a number of significant matters during the course of his evidence. He also conceded at least in part that precisely the same applied, certainly in relation to the evidence given by Packer linking Kearns and the gun. Before us Mr Webb suggested that the judge had misinterpreted or misunderstood the extent of the concessions he had made and that he had argued that any evidence that Packer was a physical participant in any robbery should be excluded.

Mr Price for Jackson made no submissions about the admissibility of this evidence, as it had no direct impact on Jackson. However, he joined with Mr Webb in an argument that as a matter of discretion the evidence should be excluded because its prejudicial effect both on Jackson as well as Packer outweighed its probative value in the case against Packer.

The judge concluded that Packer had "opened up a number of issues which had not been the subject of any comment from Packer before he came into the witness box". The material included his relationship both with Powell and with Kearns, the evidence relating to the cutting of keys to the flat, the issue of threats to him, that his knowledge of the robbery came about as a result of admissions by Powell to him, and that the money found under Packer's bed had been placed there by Powell on 12 September. In relation to Kearns he concluded that evidence relating to Packer's assertions that he was frightened of Kearns and that his visits to Winson Green Prison had been made at Kearns's instigation, but most important, an issue going to the "very heart of this case", Kearns and any contact he might have with the gun, were all receivable evidence. Finally he decided that the probative effect of the evidence exceeded any improper prejudice to either Packer or Jackson.

The evidence in rebuttal of Packer's claimed lack of knowledge until the revelations made after arrest by Powell and Kearns led to evidence directly implicating him as an active participant in more than one of the first three robberies. One consequence was that the nature of the Crown's case against Packer changed to encompass this new evidence. The effect of the evidence in the case against Brady was that, if accepted by the jury, it served to undermine the positive identification of Brady at the Wythal post office because Powell asserted, in answer to a question by the judge, that he and Kearns alone had driven away in the getaway car. So far as Jackson was concerned, the evidence was in a strict sense neutral, but complaint is made that the effect of admitting the evidence was improperly damaging to him.

After the evidence in rebuttal had been concluded, further defence evidence including that of Packer himself was called before the jury. During the course of his address to the jury Mr Brand commented on the fact that Mr Price for Jackson had asked no questions of Kearns and Powell which might have led to either witness exonerating Jackson. Objection was taken to this comment and complaint is made about it before us. The summing up began on 28 March. The single ground of appeal based on criticism of the summing up is advanced on behalf of Brady. No other criticism has been, or indeed could have been, advanced against this summing up which contained accurate directions about the relevant law, and a meticulously fair analysis of the relevant evidence, with the exception of a point taken this morning, without previous notice, by Mr Webb about the absence of a direction of the true effect of the evidence given about the character of Powell and Kearns.

We can now summarise the main grounds of appeal against convictions by Jackson, Packer and Brady. Brady's main ground of appeal is that the summing up omitted an appropriate direction in an eyewitness identification case. The other ground is that after Powell had exonerated Brady the judge should have concluded that the case against Brady should have been stopped. We can deal briefly with this second ground. The narrative of the evidence demonstrates that the judge was right to leave the case for the jury's consideration and this point is without merit.

Jackson and Packer direct criticism at the decision of the judge to permit the Crown to call Powell and Kearns as witnesses after the conclusion of the defence evidence. Packer also relies on the fact that the jury was informed of the convictions of Powell and Kearns before they gave evidence and before he had to make his own decision whether to give evidence in his own defence. He also relies on the refusal of the judge to discharge the jury following the late disclosure of the memorandum of 16 February and his further refusal to direct the Crown to call the evidence of Packer's brother, Richard. Jackson complains about the adverse effect on him of the decision to permit the Crown to call Powell and Kearns. He also suggests that the way in which he was cross-examined about why he would not be calling Kearns and Powell to exonerate him, and the adverse comment made by counsel for the Crown on his counsel's failure to cross-examine Kearns and Powell when they were called in order to give support to his case that he was not involved in any robbery, undermine the safety of his conviction.

The submission on behalf of Brady is that the appropriate warnings about the dangers of convicting on the basis of eyewitness identification in the circumstances which obtained in this case were inadequate, in the sense that the judge failed to direct the jury that a mistaken witness could be a convincing witness.

We have therefore examined the extensive directions given by Judge Farrer. He began by telling the jury that he agreed with everything said by counsel for Brady about the dangers of relying upon identification evidence. He then explained the reason for the warning, the miscarriages of justice that had flowed from honest but mistaken identifications, with a particular example. He then said that a further difficulty was that:

"the witness who gives [the identification] evidence is not lying. Nobody has suggested that [the witness] was telling anything but what she believed to be the truth, and the existence of that fact makes cross-examination very difficult, because you will not expose her as a liar because she is not lying, and the longer you cross-examine her the more will it appear that she is right and that she was honest and telling you the truth. So there really is no way that a cross-examiner can [explain] the falsity of a witness who appears to be clear, precise and honest."

He explained the ease with which mistakes could be made and that the jury should look to see whether there was any evidence tending to support the identification. He reminded the jury of the possible weaknesses in the evidence, including that the witness accepted that she was "not very good at distances", probably wrong about the precise time when Brady was in her view, and of the descriptions she had given at the time. We cannot find any of the directions necessary to "eyewitness" identifications which the judge omitted, and the entire thrust of the passage quoted earlier in this judgment was directed to alerting the jury to the danger that a convincing witness might nevertheless be mistaken.

We therefore reject the criticisms of the direction given by Judge Farrer in relation to the case against Brady. We have reconsidered the identification in the light of the circumstances accepted or admitted by the identifying witness, and the supporting evidence which, although the judge did not remind the jury of it, included the coincidence that the robber she identified was carrying a holdall similar to exhibit 74 and wearing a jacket "very similar" to exhibit 208, together with the odd feature (if the identification was mistaken) that of a very large number of people on the different identification parades that were held during the course of this investigation, the identifying witness should happen to have picked out someone who was an undoubted associate of Powell and Kearns who admitted that they were participants in the robbery. Finally, we have reflected on the evidence of Powell which, by inference, purported to exonerate Brady. In the result nothing in the material before us has led us to the conclusion that Brady's conviction was "unsafe".

The circumstances in which the evidence in rebuttal was put before the jury has been outlined in the course of this judgment. It is unnecessary to review the authorities or to attempt any restatement of the relevant and well-known principles.

This was not a case in which the Crown had reason to believe at the outset of the trial that Powell and Kearns might be available to them as witnesses. If so, they should have been called as part of the Crown's case. We are also satisfied that the Crown could not reasonably have anticipated that Packer would seek to cast blame directly on to Kearns and Powell to escape from the most damaging evidence implicating him in this conspiracy (the cash found in and under his bed) or of distancing himself from it (by connecting Kearns with the most damaging object, the gun), nor that he would claim to have become aware of these matters as a result of what they had said to him after arrest and remand. Once they had pleaded guilty and ceased to participate in the trial they became an easy scapegoat for him. It would therefore have been wholly artificial for the Crown to ignore the information that Powell and Kearns would be willing to give evidence to rebut the assertions made by Packer against them. If it were otherwise Packer, and any defendant in his situation, would have been able, if he wished, to lie with impunity and complete confidence that his evidence could never be contradicted by the only witnesses who would have had any reason to know that it was capable of contradiction. Packer brought on himself the consequences which flowed from the evidence which he gave.

Although Jackson's evidence had not had this effect, when the judge came to exercise his discretion he was entitled to conclude that the relevant evidence relating to Packer outweighed any possible disadvantages to Jackson.

In the result no evidence directly implicating either Jackson or Brady was given by the witnesses called in rebuttal and, as we have already noted, Brady became entitled to rely on this evidence in support of his defence.

Previous convictions of Powell and Kearns

In context cross-examination of Jackson by the Crown, which included reference to the convictions of Powell and Kearns, was legitimate. No such questions were asked of Brady, who was not one of those arrested at the flat at Druid's Heath. The cross-examination by the Crown came after cross-examination of the witness on behalf of his co-accused, and answers were given by Jackson which suggested that permission granted to Powell to stay at the flat at Druid's Heath was wholly innocent and, for example, in relation to Powell, because of concern that he was constantly being thrown out of his own house. The evidence created the general impression that he had no idea that the flat would be likely to be used as a base for criminal activities. In our judgment the Crown was entitled to ask questions with a view to undermining that impression. Its timing (that is before Packer gave evidence) was an unavoidable result of Jackson's position ahead of him on the indictment. At the time of the cross-examination it was not anticipated that either Powell or Kearns would be giving evidence, and although we recognise that this evidence was adduced before Packer decided whether or not to give evidence, once they had given evidence, it was inconceivable that they would not have been cross-examined about their convictions in any event so as to undermine any confidence the jury might have in their evidence. We also note that the judge was careful more than once to point out to the jury the dangers and to warn them against the risk of finding guilt by association. We do not consider, having looked at the directions that he gave in relation to this topic, that the absence of any further specific direction - the point raised by Mr Webb this morning - serves to undermine the safety of this conviction.

Knowledge of the relevant events is clearer now than it was at the trial. As we have already noted, one of the oddest feature of this case is that at one time or other four of the five conspirators offered to or actually provided information to the prosecution. Mr Brand was in a dilemma. Following the judge's ruling (which is not itself criticised), Mr Brand was, subject to any further developments at the trial, entitled not to disclose the memorandum to anyone. Brady, the source of the information, would have been entitled to insist that if physically available Alan Powell and Jason Storer should have been required to attend for the purposes of cross-examination. However, he might have been reluctant to reveal to anyone that he was himself giving information to the police. As Mr Brand recognised the possible difficulties of Brady's counsel about information which had originated from his client who was currently on trial with Jackson and Packer, he decided that it would not be right for Brady's counsel to remain in ignorance of the information apparently given by his client to the police and of the fact that he had given such information. Thereafter he supplied information to the other defendants.

We have no criticism for the position taken by Mr Brand about this memorandum and the way in which he arranged for disclosure.

We have considered whether the information could have assisted Packer's case if it had been disclosed earlier to his counsel. Bearing in mind that his case was that Kearns was responsible for the presence of the gun at the flat (based at least in part on what he had asserted that Kearns had told him) the value of this information, if capable of being deployed in an admissible form, would have been to enable Packer to explore the Crown's case in further detail but in a manner which would have been inconsistent with the case that he was to advance to the jury. Although we recognise that this evidence might have enabled Packer in a general sense to "distance" himself a little further from the gun, we are unable to accept that however deployed it would have served to undermine the safety of his conviction.

Mr Webb acknowledges that this is the least important of his submissions. The Crown decided not to call Richard Packer, Packer's brother, not on the basis that he was "incapable of belief" but because Mr Brand took the view that his evidence was peripheral. His decision did not preclude any of the defendants from calling this witness. After considering the most important recent authorities the judge declined to order the prosecution to call or tender this witness. We can see no reason to interfere with his conclusion.

Jackson

We have considered whether, again in the particular context of this case, it was inappropriate for Mr Brand to cross-examine Jackson, whether Powell and Kearns would be called by him (at a time when the Crown had no idea that the witnesses would in fact be called) and the subsequent comment to the jury after they had been called.

In context, namely that Powell and Kearns were his friends and that Powell lived in and Kearns used the same accommodation at which so much property connected with this conspiracy was found, the question in cross-examination was not inappropriate. With regard to his comment to the jury, we recognise the forensic reasons why Mr Price on Jackson's behalf had not dared ask either Powell or Kearns questions intended to exonerate his client. His dilemma was acute, and we believe that in his position any sensible counsel alert to the potential risks would have declined to ask such questions. However, counsel's dilemma did not disentitle the prosecution from making a legitimate point, and one which would undoubtedly have occurred to the jury, particularly as Brady's counsel was to deploy with great force the evidence from Powell and Kearns which purported to exonerate his client. The judge understood counsel's difficulty. He took great care in the summing up to explain to the jury how they might most fairly approach the issue in the interests of both Brady and Jackson.

None of these matters leads us to question the safety of Jackson's conviction.

For all these reasons these appeals against conviction are dismissed.

We have dealt with the argument in relation to appeals against sentence by Powell and Kearns. We simply ask counsel for the remaining three appellants whether they wish to make any submissions on the topic. Mr Price? Mr Webb?

MR WEBB: No.

LORD JUSTICE JUDGE: Very well. We can deal, therefore, deal briefly with the appeals against sentence.

The sentences on each defendant on count 2 exceeded the then statutory maximum, which at the relevant date was five years. The judge passed sentences which reflected his overall view of the criminality of each appellant and ordered the sentences on count 2 to run concurrently. It is unfortunate that his attention was not drawn to the error by anyone, not least because of the cost involved in an appeal to put right what could easily have been corrected at the time, and when in any event the result of an appeal on this point could be of no practical assistance whatsoever to any of the appellants.

We shall thereafter quash all the sentences on count 2 of this indictment. We are concerned only with the total sentence in the case of each appellant. We shall therefore substitute for the sentences actually imposed, on each of them, a sentence of 5 years imprisonment. The total sentence on Powell was 11 years imprisonment, 11 years on count 1 and 11 years on count 2 concurrently, together with a six-month concurrent sentence for breach of a combination order. The sentence on Kearns was 12 years on each count to run concurrently.

The significant matter in the appeals by Powell and Kearns on sentence is that they invite us to conclude that, in the total sentence passed on each of them, insufficient credit was given for the fact that they had pleaded guilty and that each of them had given evidence in support of the Crown. The decision to give such evidence, it should be noted, did not arise from an early wish to co-operate with the authorities, but a determination that after Packer had given evidence which would have aggravated their own positions they should have the opportunity to dispute his allegations. This, therefore, is not a case of two conspirators electing to assist the authorities at an early stage. Nevertheless, although the offer of assistance came very late and was not altruistically motivated, the fact that each appellant was prepared to give evidence for the Crown, with all the potentially unpleasant consequences that involves those who are in custody and have pleaded guilty, although taken into account by Judge Farrer was in our judgment not sufficiently reflected in the sentences which were actually imposed on them. The way in which these matters should have properly been reflected without interfering with the view of the trial judge as to the overall level of responsibility between the various conspirators is to further reduce the sentence on count 1 in each of these two cases by two years. Therefore the sentence of Kearns should be reduced to ten years and the sentence on Powell to nine years in relation to count 1. The sentences will of course continue to run concurrently.