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Cite as: [2000] EWCA Crim 16

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BLOK, LIDDON and RICAULT, R v. [2000] EWCA Crim 16 (18th February, 2000)

Case Nos: 99/2245/Z2; 99/2327/Z2; 99/2389/Z2; 99/4343/Z2.

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 18th February 2000

B e f o r e :
LORD JUSTICE KENNEDY
MR JUSTICE BLOFELD
and
MR JUSTICE GOLDRING

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	R
	- v -
	BLOK, LIDDON & RICAULT

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Anthony Glass QC and Lydia Barnfather(for the Crown)
David Lederman QC (for the appellant Blok)
Stephen Batten QC (for the appellant Liddon)
Annette Henry (for the appellant Ricault)
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE KENNEDY:
1. On 2nd March 1999 in the Crown Court at Kingston upon Thames the appellant Blok pleaded guilty on re-arraignment to being knowingly concerned with harbouring cannabis resin with intent to evade the prohibition on its importation.
On 17th March 1999, in the same court, all three appellants were convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of cocaine, and received substantial sentences of imprisonment. Confiscation orders were also made against Blok and Liddon. Blok and Liddon appealed against conviction, and Ricault against sentence by leave of the single judge. Blok and Liddon renewed their applications for leave to appeal against sentence, and Liddon renewed his application for leave to appeal against his confiscation order after refusal by the single judge. On 11th February 2000 we allowed Ricault's appeal against sentence, and dismissed all other applications and appeals. We indicated that in relation to the conviction appeals we would give our reasons later, hence this judgment. So far as the other matters were concerned we gave our reasons at the time of our decision.
2. Grounds of Appeal.
There were before us two related grounds of appeal against conviction, both concerning a prosecution witness named Steven Marcham who did not attend at the trial. Section 23 of the Criminal Justice Act 1988 provides that in certain circumstances a statement of such a witness can be read, and in this case the judge heard evidence as to the steps taken to produce the witness, and as to the statement which it was proposed should be read. He also heard submissions from counsel, and he then ruled that, save for one sentence, there should be read the statement which the prosecution wanted to read, that is to say the statement served with the papers in the case. The principal ground of appeal on behalf of both appellants is that the trial judge was wrong to rule as he did. It is also contended, on behalf of Liddon, that even if the statement was properly admitted the judge failed to give adequate directions to the jury as to its use both in his summing-up and in response to a question which the jury posed.
3. Background.
In order to understand the relevance of Marcham's statement it is necessary to say something about the cocaine importation offence of which all three men were convicted, and the background to that offence.
Liddon was the owner of the Glenhaven Industrial Estate, a block of industrial units at Stanwell Moor, Middlesex. One of the units was occupied by S & M Motors. Liddon was also a long standing friend and associate of Blok who, although of Dutch origin, had been in England for many years. They had travelled to the continent together in 1997, and had both made short visits abroad prior to the drugs importation which undoubtedly took place during the night of 10th July, 1998.
On 9th July Liddon and Blok made 13 telephone calls to each other by means of mobile telephones, Blok made three telephone calls to Holland, and he then called Liddon late at night. It was the prosecution case that the telephone activity was related to the huge consignment of drugs which were soon to cross the English Channel in Ricault's car.
On 10th July Blok drove many miles to visit Liddon's home for 15 minutes. The prosecution contended that this also was part of the preparation.
At 2.30 am on Saturday 11th July Ricault, a French national, normally resident in a suburb of Paris, arrived at Newhaven from Dieppe in a Renault Twingo motor car. Ricault understood some English, and Blok can speak some French, but in neither case are they fluent. At 9 am that morning Blok left his girlfriend's address, leaving £6860 in cash in a bedside table. At 10.53 am he and Liddon met for 7 minutes in the car park of the Myelett Arms public house off the A40 road in West London. At 12.17 pm Blok was at the Dome Cafe in Selfridges store where he was joined by Ricault. They then went to the Marriott Hotel near Heathrow where they were joined by Liddon. Liddon left first at 2.07 pm. The prosecution contended that he was arranging the garage to receive Ricault's car. At 2.48 pm Blok received a telephone call during the course of which he said "we will be there in 15 minutes". Blok then drove his Mercedes motor car to the Glenhaven Industrial Estate with Ricault following in the Renault Twingo. Between 2.51 pm and 3.07 pm Blok made three telephone calls to Liddon and Liddon made one telephone call to Blok. On arrival at the Industrial Estate the Renault was driven into the premises of S & M Motors, and the door of the unit was closed, with Blok and Ricault inside. Blok's Mercedes was parked outside.
At 3.23 pm Customs Officers entered S & M Motors, and found 16.9 kilos of cocaine of a very high level of purity with a street value of about £2 million. It had been concealed behind the faschia board of the Renault but by the time the officers arrived it had been taken out and placed in a cupboard. Blok and Ricault were arrested. Blok's home was subsequently searched and the 228 kilograms of cannabis resin to which we have already referred was found there. Liddon was arrested near to the Industrial Estate at the Five Bells public house. When interviewed neither Blok nor Liddon made any comment.
4. Marcham's Statement.
Two days later, on 13th July, 1998, Marcham signed a statement, written out in manuscript by a customs officer, in which he said that -
"(1) He was the proprietor of S & M Motors, a panel beating/vehicle spraying company.
(2) Liddon was his landlord, and Blok, who he knew as Marc, was a regular visitor, both alone and with Liddon.
(3) On the afternoon of Saturday 11th July, 1998 he was drinking in the Five Bells public house at Stanwell. "Robert Liddon approached me and asked if Marc, the Dutchman, could use the unit premises. I agreed to this and arranged with Liddon that I would go and open the garage shortly. Liddon then contacted Marc on his mobile phone and arranged for Marc to come to the unit in 15 minutes."
(4) Marcham then went to the unit and opened the shutter doors.
(5) Marc then arrived in his Mercedes which Marcham recognised. A second car arrived at the same time. "Marc parked his Mercedes opposite the unit and gesticulated to the driver of the other car to drive into the garage - which he then did. I went over to Marc and gave him the keys of the garage and told him to give the keys to the men in D & J Motors (an adjacent unit) when they were finished. I recall that as I walked away Marc or the driver of the other car closed the shutter doors with the car inside the unit."
(6) Marcham knew nothing of the drugs, or of a mobile phone later found in the unit.
5. The Application to Read: Evidence.
When the case was listed for trial Marcham did not attend, and Mr Glass, Q.C., for the prosecution, sought to read Marcham's statement pursuant to Section 23 of the 1980 Act. That section, so far as material provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if -
"all reasonable steps have been taken to find the person who made the statement but .... he cannot be found."
In order to prove that all reasonable steps had been taken Mr Glass, in the absence of the jury, called as a witness Mrs Doreen Sparks, the mother of Marcham. She had been present at S & M Motors on 13th July 1998 when Marcham made his statement to a Customs Officer, Mr Wemyss, and she said that soon after that her son went to Australia for a time. It had been agreed that he could be reached through her, but by the time of trial she had lost touch with him. That was really all the evidence that the prosecution required of her, but it emerged in cross-examination that two or three weeks before the trial Mrs Sparks was contacted by the solicitors acting for Liddon and made a statement to them. Under cross-examination she said that she was concerned about what had happened on 13th July, 1998, because her son had marital problems and was worried by the fact that the drugs had been found on his premises, and although it was early in the day he was adversely affected by drink. She accepted that after the statement had been written out by Mr Wemyss in long hand it was read back to her son, and then given to him to read, but she said that he was dyslexic and passed it to her. He then signed it. Later she got a typed copy which she passed to him. After his return from Australia he gave her back that copy. He had marked it, and she produced his marked version. Some parts were bracketed, some words and phrases were encircled, and a few words, including at one point the words "not said" had been added. According to Mrs Sparks her son was not wholly happy with the statement. In some places it was not how he would express himself - for example he would not describe himself as the "proprietor" of a business, and he normally referred to Liddon as "Bob" not "Robert Liddon". Other marking Mrs Sparks could not readily explain.
The prosecution had called Mr Wemyss and another Customs Officer to deal with the taking of the statement on 13th July 1998, and in cross-examination Mr Wemyss said that when Marcham gave the statement "he said that he believed the statement would not sit well with some people but that he would be able to handle it".
Having heard the evidence the judge was satisfied that all reasonable steps had been taken to find Marcham, and there is not challenge to that finding in this court.
6. Section 26: Interests of Justice.
However, even where reasonable steps have been taken to produce a witness section 26 of the Act provides that a statement such as that which the prosecution sought to read in this case cannot be read without the leave of the court, and the court -
"....shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard -
(i) to the contents of the statement;
(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them ; and
(iii) to any other circumstances that appear to the court to be relevant."
Supplementary provisions in relation to Part II of the Act (which includes sections 23 to 28) are to be found in Schedule 2 which so far as material, reads -
"1. Where a statement is admitted as evidence in criminal proceedings by virtue of Part II of this Act -
(c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself.
5.(1) In Part II of this Act -
"document" means anything in which information of any description is recorded;
.....
"statement" means any representation of fact, however made."
7. Submissions and Ruling.
Before the trial judge Mr Batten, Q.C., for Liddon submitted that in the light of the evidence of Mrs Sparks it would not be in the interests of justice for the statement of Marcham to be admitted in its original form because that was no longer what Marcham, if called as a witness, would have said. So far as Liddon was concerned most of the statement was not controversial, but the first three sentences which we have quoted verbatim when dealing with the statement earlier in this judgment were contentious, because it was Liddon's case that in the Five Bells public house "he handed over his own mobile phone to Marcham who did not have one, and the conversation was between Marcham and Blok. Were it not for that" said Mr Batten "I would not have been objecting to this being read."
Mr Lederman, Q.C. for Blok submitted that the statement produced by Mrs Sparks was really a second statement, and having drawn attention to paragraph 1(c) of Schedule 2, he submitted that "both these statements are admissible", but as the annotations on the second statement are not really intelligible in the interests of justice both statements should be excluded. Blok did not quarrel with most of what was said in the original statement, but he did not accept the second passage which we have quoted verbatim above, and which, like the other passage, appears subsequently to have been bracketed.
As was pointed out by Mr Glass, the substance of that second passage had already been formally admitted, and the prosecution wanted the statement to be read unedited, both to complete the narrative and to meet in advance any suggestion that Marcham was knowingly involved with the importation of drugs. Neither Blok nor Liddon had challenged his evidence in their defence statements, and both could if they wished deal themselves in evidence with those parts of Marcham's statement to which they objected. They could also, if they wished, pursuant to paragraph 1(c) of Schedule 2, call Mrs Sparks to give evidence of her son's misgivings about what he had said.
The judge gave a careful ruling in which, with reference to the numbered paragraphs in section 26, he noted the relevance of the contents of the statement, and the ability of the defence to contravert it, as well as the other circumstances of the case. He found the testimony of Mrs Sparks to have been not at all clear. In relaying her son's misgivings she had not said that the contents of the original statement were false. Chiefly the problems were "stylistic", and it did not appear with regard to other annotations that she really knew what her son was getting at, although he was unhappy in some way. The judge noted the comment made by Marcham to Mr Wemyss when the statement was taken on 13th July, and, considering the passages highlighted by defence counsel, the judge agreed to exclude one sentence, namely "Liddon then contacted Marc on his mobile phone and arranged for Marc to come to the Unit in 15 minutes." Mr Glass had suggested that if there was to be any editing that sentence might go, so the statement was read without it.
8. In this Court.
Before us Mr Lederman submitted that once it was accepted that Marcham had amended his statement by marking the typed version which his mother produced it was only that statement which if comprehensible could be read pursuant to section 23. It was, he submitted, misleading to read the original version knowing of the amendments. There was, he submitted, no room for the exercise of judicial discretion.
Mr Batten submitted that the effect of section 26 is that where there is an identifiable risk that the evidence if read will in a significant respect not be the evidence of which the party seeking to call it has been deprived it will rarely if ever be appropriate for the court to find that the statement ought to be admitted in the interests of justice. He pointed out that in this case the decision to admit the statement may well have been of considerable importance because, before convicting Blok and Ricault, the jury asked for Marcham's statement to be re-read and then, having returned verdicts in relation to Blok and Ricault and heard the statement read, they convicted Liddon. Mr Batten further submitted that by removing one sentence from the original statement the trial judge may have acted to the detriment of Liddon. It may have led the jury to reject the oral evidence of Blok, and of the witnesses from the Five Bells public house called on behalf of Liddon, who all said that Liddon passed his mobile phone to Marcham and later got it back again.
9. Conclusion re Admissibility.
In our judgment the judge's approach to the question of admissibility was correct, and Mr Lederman's submission to us, which was not the same as his submission in the court below, cannot be accepted. Once it was shown that reasonable steps had been taken to find Marcham but that he could not be found then, subject to section 26, section 23 rendered the original statement admissible. There was no room for the exercise of discretion at that stage, but as it was a statement of the type envisaged by section 26 (i.e. prepared for the purposes of criminal proceedings, or a criminal investigation) it could not be admitted without the leave of the court, and the court was required not to give leave unless it was of the opinion that the statement ought be admitted in the interests of justice. In making that decision the court was required to have regard to the contents of the statement, the risk of unfairness to an accused (bearing in mind the possibility of controverting the statement) and any other relevant circumstances. The judge went through the exercise stage by stage, and rightly bore in mind the obvious ways in which those parts of Marcham's statement which were said to be in issue could be challenged by those acting on behalf of Blok and Liddon, namely by calling their clients and by calling Mrs Sparks in the presence of the jury to give such evidence as she could give in accordance with paragraph 1(c) of Schedule 2. As Mr Glass pointed out, if Mr Batten preferred to have the whole statement read rather than to have it edited as the judge ordered no one would have objected to that course. The reality is that at the time when the decision in relation to admissibility was made the editing was considered, and understandably considered, to be a useful concession as far as Liddon was concerned. It probably never ceased to be so, but even if it did a decision as to admissibility of evidence which was impeccable at the time it was made cannot be successfully challenged because defence counsel, after the verdict, comes to the conclusion that it would have been better if the jury had had before them a scrap of evidence which at the time when it could have been adduced he was only too happy to exclude.
It is perhaps worth commenting that if Mr Lederman's submissions were right much of what Parliament sought to achieve by Part II of the 1988 Act would be rendered impossible, because after a potential witness has made a statement he could be terrorised into making a second statement to a solicitor or someone else, and then spirited away, thus rendering his original statement impossible to use. The structure of the Act is plainly such as to avoid that consequence, and yet to avoid misleading a jury where, for example, a witness who cannot give evidence has made other statements indicating that in the statement relied on he was misrepresented or misunderstood.
10. Directions re Marcham's Evidence.
When he came to deal with Marcham's evidence in his summing-up the judge reminded the jury of what he had said to them before the statement was read, namely that it was not agreed evidence, but was read because the witness not available -
"the defence saying that, had he been available, they would have wanted to put questions to him so, it is for you to judge to what extent you can rely upon the evidence read to you from a statement that he made on 13th July. So, two days after the event. A point at which you might think he would be quite likely to be able to remember events though, of course, it is for you to judge whether he is to be relied upon, both as to his memory and, as to the question of truthfulness."
When the jury asked for the statement to be re-read Mr Batten asked if the judge "would mind repeating once again that it stands in a special category" and the judge agreed to do so. He said -
"I remind you that this was a statement which was read to you, not as agreed evidence but, as evidence which was read to you because the witness was not available to attend court. Had he been, counsel would have wanted to put questions to him."
Mr Batten did not ask for anything more, but now he submits that in the light of the voir dire and the problems of interpretation the judge should, when dealing with the evidence of Marcham -
"(a) have collated all of the evidence about the telephone call:
(b) pointed out that Marcham was in a difficult position because he was the tenant of the premises where the cocaine was found, and -
(c) pointed out that the statement would not have been in Marcham's own words, but the product of a conversation between him and the Customs Officer who was taking the statement."
In our judgment the judge gave the essential direction to the jury. He told them that the statement was not agreed, and that because the witness was not present the defence had no opportunity to test his evidence by cross-examination. That necessarily deprived the jury of the opportunity of assessing the honesty and accuracy of the witness in the usual way. No more needed to be said. How the evidence as to the telephone call was presented was a matter for the judge, and the other points now made are obvious comments which no doubt formed part of counsel's final address to the jury.
11. Conclusion.
For those reasons the appeals against conviction were dismissed.