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Cite as: [2000] EWCA Crim 18
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RIGOT and CAROLE SLAUGHTER, R v. [2000] EWCA Crim 18 (18th February, 2000)
Case No: CAO9902892Y4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROYDON CROWN COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 18 February 2000
LORD JUSTICE MANCE
MR JUSTICE PENRY-DAVEY
and
THE RECORDER OF BIRMINGHAM
(sitting as a Judge of the Court of Appeal)
R |
Claimant/ | |
-v- |
||
MARVIN RIGOT |
Defendant/ | |
CAROLE SLAUGHTER |
Co-defendant |
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)
- - - - - - - - - - -- - - - - - - - - -
Mr David Ross (instructed by the Crown Prosecution Service) appeared for the Claimant |
Mr Benjamin Aina (instructed by Noel Starke & Co.) appeared for the Defendant |
The Co-defendant did not appear and was not represented |
Judgment
As Approved by the Court
Crown Copyright ©
1. On 9th April 1999 in the Crown Court at Croydon before His Honour Judge Pratt, the appellant, Marvin Rigot, was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class "A" drug, and on 16th April 1999 he was sentenced to 16 years' imprisonment. His co-defendant, Carole Slaughter, with whom he was at the time in a relationship, was acquitted of the same offence. He appeals against his conviction with leave of the single judge.
2. The Crown case was that both the appellant and Mrs Slaughter had been involved in the importation of a large quantity of cocaine, brought into the country in suitcases carried by Mrs Slaughter on her return from a one-week visit to St. Lucia lasting from 14th to 21st June 1998. The reservation at for the Glencastle Resort where Mrs Slaughter stayed with her son was made by the appellant on 12th June 1998, originally for a Miss J. Young and a Mr. A. Dunville. At the same time the appellant purchased two non-refundable, non-transferable air tickets. On 13th June 1998 the appellant contacted the travel agency, informed them that Miss Young and Mr Durville could not travel, purchased fresh tickets for Mrs Slaughter and her son, and arranged for the resort reservation to be transferred to them. The total costs of the booking and re-arranged booking exceeded £1,600.
3. On 14th June the appellant took Mrs Slaughter and her son to Gatwick airport. Before she flew out, a customs officer inspected her two suitcases covertly, noted that they contained false compartments and marked them with an ultra-violet pen. On 22nd June Mrs Slaughter and her son returned to Gatwick, where customs officers identified the suitcases by their markings. In the station foyer Mrs Slaughter and her son were met by the appellant, and shortly afterwards they were arrested as they boarded a London train. The suitcases on being dismantled were found to contain in the false compartments a total of 6.92 kilos of cocaine of 80% purity. Later, on the same morning, a search of Mrs Slaughter's home revealed a note on the microwave in the kitchen reading: "Marvin, I'm so sorry, get me my ticket to ride & I'll go to make up for it. Love you lots, Carole".
4. During the trial, the Crown called evidence from the manager of the travel agents, who specialised in Caribbean travel. The appellant had on a number of other recent occasions booked and paid in cash for travel for various other named people.
5. Mrs Slaughter's evidence was that she had no knowledge or suspicion of any drugs in her suitcases. She had obtained her first passport on 10th June 1998. She knew nothing of any prior trips arranged by the appellant for anyone else and said that he had suggested that they go on holiday together to St. Lucia to get married. They had argued about whether her son should come, but had made this up whereupon she left him the note found on the microwave, in which the "ticket to ride" referred to her passport. The day before all three of them were due to go, he had told her that he would have to join her later, because his passport had expired. In fact, he never did come out. He had on 10th or 11th June given her two suitcases to take out with her. When in St. Lucia someone who said he was a friend of the appellant visited her hotel and collected the suitcases, which were only returned on the evening before her departure. When she mentioned their collection to the appellant by telephone he confirmed that this was in order. After the suitcases were returned, she noticed no increase in their weight. While she was in St. Lucia, the appellant also arranged to send her some money through Western Union in St. Lucia, as he did in the name of James Watt. On the day of her departure, she found that she was expected to pay the resort bill, and had no money to do so. The appellant happened to telephone at that moment, and said that he would sort the matter out. Shortly afterwards the man who had taken and returned the suitcases arrived and paid the bill. She had no idea at any stage that the suitcases which she brought back to London contained any drugs.
6. Mrs Slaughter also adduced evidence from a Mr. J. Gorezney, a special agent with the American Drugs Enforcement Agency (the "DEA"), who confirmed receipt in January 1999 from the appellant of a letter, and produced part in an edited form agreed between counsel. It read as follows:
"Dear John,
I hope when receiving this letter you and your love's one are enjoying of a good health and spirit. I heard from my father that you've been phoning and asking for me. Last time we spoke with each other was approximately a year ago. I was telling you I was trying to infiltrate this group of Colombians who are based in Venezuela. This group was sending stuff through Saint Lucia to the United States. They were also working on England. In order to earn my respect (props) they stationed me in England and I had to find them mules and send them to Saint Lucia were they loaded them up and send them back to the UK.
Unfortunately I've been arrested by UK Customs and Excise in an importation of 7 kilo of cocaine and am detained since 23 June 1998 facing a sentence of 14 years of more. John although I understand that this was not a "controlled" importation done by U.S. Customs but more on my own initiative, I am asking you if you can contact UK Customs and Excise.
Marvin"
7. In evidence adduced by questions put in cross-examination on behalf of the appellant, Mr Gorezney confirmed that between April 1994 and November 1995 the appellant had assisted the DEA in ongoing investigations into drugs rings from Puerto Rico and that in June 1998 the DEA was in the process of signing him up as an official informant.
8. The appellant's evidence was that he had no knowledge or suspicion of any drugs in the suitcases carried by Mrs Slaughter. He had not given the suitcases to Mrs Slaughter, and did not know from where they came. He had not arranged for them to be collected from her and returned to her by anyone in St. Lucia. He had not arranged for her hotel bill to be paid by anyone in St. Lucia. He said that he knew no-one there. Further, although he had hoped to join Mrs Slaughter in St. Lucia, he had never said that he would marry her, and, although, he had sent her some money, he had not used the name James Watt, but his own name. The judge allowed counsel for Mrs Slaughter to put to the appellant in cross-examination the fact that he had a conviction for conspiracy to import into the United States of America some 800kg of cocaine.
9. When the letter produced by Mr Gorezney was put to the appellant by counsel for Mrs Slaughter, the appellant admitted writing it, but said that he had been in prison since 23rd June 1998, unable to obtain bail and was desperate to get out of the situation in which he was in. Its contents were all false. He wrote them hoping that Mr Gorezney, an old friend, might contact HM Customs and help bail him out.
10. The grounds of appeal, which have been ably advanced by Mr Aina in clear oral submissions, challenge rulings made by the judge during the trial on the scope of cross-examination, on the admission of evidence and on severance as well as raising points on his summing up to the jury. We start with the judge's rulings made on the scope of cross-examination and the admission of evidence.
11. The prior conviction
Mr Aina submits that the judge erred in allowing the appellant's prior conviction for conspiracy to import cocaine into the United States to be put in cross-examination on behalf of Mrs Slaughter and adduced before the jury. While he did not put this point at the forefront of his oral submissions, his contention was that the appellant had not "given evidence against any other person [Mrs Slaughter] charged in the same proceedings" and, accordingly, that the judge had no power under s.1 Proviso (f)(iii) of the Criminal Evidence Act 1898 to permit such cross-examination or evidence. The attack, he suggested, came all one way, from Mrs Slaughter on the appellant.
12. In any event, he submitted, any denials by the appellant must be such as must lead to the conclusion that Mrs Slaughter was guilty before he could be said to have given evidence against her. Here any denials by the appellant did not go directly to the issue of Mrs Slaughter's knowledge, or mean necessarily that she was knowingly involved in the importation of drugs.
13. The test is not, however, whether the appellant's evidence must if accepted have led to the conclusion that Mrs Slaughter was guilty. As the Lord Chief Justice said in R. v. Crawford (1998) 1 CAR 338, the essential question is whether a defendant's evidence damages in a significant way the co-defendant's case. Counsel relied on the fifth proposition in R.v. Varley 75 CAR 241, which reads:
"Mere denial of participation in a joint venture is not of itself sufficient to rank as evidence against a co-defendant. For the proviso to s.1(f)(iii) to apply, such denial must lead to the conclusion that if the witness did not participate then it must have been the other who did."
14. The substance of this paragraph is still quoted in Archbold 2000 at para. 8.208, with the addition at the start of its second sentence of the phrase "Where there are only two candidates", which is said to represent the effect of Crawford. In Crawford, the appellant and a co-defendant, Anderson, were charged with robbery committed in lavatories in McDonald's, Leicester Square. The victim's case was that she had been robbed by three black women. The appellant's case was that she had been outside the toilets when any robbery occurred and that she saw the alleged victim emerge followed by a third black person Lisa and then by Anderson. Anderson's case (as put to the victim) was that Anderson had been in the lavatories but had witnessed as a purely innocent bystander a robbery committed by Lisa and Crawford. The recorder allowed cross-examination as to Crawford's character, on the bases inter alia that (a) her evidence that she was not, but two other black women were, in the toilets, made it more likely that the jury would convict Anderson and (b) her evidence that she was not even in the toilet must jeopardise the credibility of Anderson. On appeal, counsel for Crawford submitted that the fifth proposition in Varley did not apply:
"He submits that this is not a case where it was either A or B who committed the offence, and that therefore if it was not A it must have been B. It is not, Mr House submits, enough that it may have been B, or may have inclined the jury to accept that it was B. He points out that the word used is "must" and that that is a condition which on the facts here was not satisfied."
15. The Lord Chief Justice rejected the submission. Referring to the recorder's concern about the use in the fifth proposition of the word "must", he said:
"Plainly he felt that the word "may" would have been more appropriate. We agree with him and to the extent that proposition (5) is put in mandatory terms, we consider that it went too far."
In R. v. Ward (C.A. Crim. Div., 8th November 1999) this court repeated and applied what was said in this respect in Crawford. In so far as Archbold suggests that the word "must" remains intact in the fifth proposition in any case where it can be said that the only choice lies between two candidates, we disagree. The alteration of this word to "may" goes as much to the force of the evidence against the co-defendant as to the possibility that some entirely different third person may have committed the offence.
16. Here, it is clear that the appellants' evidence, if accepted, would have completely undermined Mrs Slaughter's account and very significantly damaged her prospects of being acquitted, whilst exonerating the appellant. S.1 Proviso (f)(iii) was accordingly applicable. We also have no doubt that the judge was right in the circumstances to allow the appellant's prior conviction to be put to the appellant and proved.
17. The confession
The main burden of Mr Aina's submissions on the confession was directed to
the issue of severance, which we deal with below. In his oral submissions,
though not we think in his grounds of appeal, he took a point on the judge's
decision to admit the confession, without holding a voire dire to
establish, as he put it, its reliability. The judge rejected submissions (not
renewed before us) that there had been an abuse of process in respect of the
letter. He decided on 30th March 1999 that, edited of extraneous and
immaterial matter, the letter could be adduced as an exception to the hearsay
rule under the principle in R. v. Myers [1998] AC 124, whereas, if
severance was ordered, "Mrs Slaughter would be deprived of this evidence,
clearly relevant to her defence". The letter was, he added, "not inadmissible
under s.76 of the Police and Criminal Evidence Act, whatever the arguments
under s.78 may be".
18. Mr Aina conceded during the course of his submissions before us that the
judge was right to say that there was no question here of s.76 of the Police
and Criminal Evidence Act applying. There is no suggestion of any "oppression".
Nothing was "said or done" by anyone which was likely to render it unreliable.
He submitted however that the House of Lords had in R v. Myers left open
the potential relevance of s.78 to the admission of any confession by a
co-defendant.
19. Myers establishes that a defendant has the right to put a statement
relevant to the defendant's defence and made voluntarily by a co-defendant to a
witness to whom it was made, although it incriminated the co-defendant as its
maker and had not been used by the Crown. The approach of their Lordships to
the question whether there was any residual discretion to exclude a
co-defendant's confession in circumstances outside s.76 was not perhaps
entirely identical. Lord Slynn, with whose speech Lords Steyn and Hutton
agreed, referred to the rule excluding confessions by a third party (on the
ground that if they were admitted it would be too easy for fabricated
confessions to produce unjustified acquittals) and went on:
"Accepting Lord Bridge's view in Reg. v. Blastland [1986] AC 41 that
statements by third persons are not admissible there is a long line of
authority showing that a defendant must be allowed to cross-examine a
co-defendant as to a previous inconsistent confession so long as the material
is relevant to the defendant's own defence. In my opinion a defendant should
also be allowed to put a co-defendant's confession to witnesses to whom the
confession was made so long as the confession is relevant to the defendant's
defence and so long as it appears that the confession was not obtained in a
manner which would have made it inadmissible at the instance of the Crown under
s.76(2) of the [Police and Criminal Evidence] Act of 1984. There may be doubt
as to whether the co-defendant will be called (so that it may not be possible
to put the confession to the co-defendant directly) and not to allow the
defendant to introduce it by way of cross-examination of prosecution witnesses
could lead to great confusion."
Lord Hope, with whose speech Lord Mustill agreed, agreed at p.146B-C that the
judge did not err in admitting the evidence. He went on:
"Indeed it would perhaps be more accurate to say that he had no discretion
to do otherwise, as this was relevant evidence on which the co-defendant wished
to rely as part of his case, and there were no grounds for taking the view that
it was evidence on which no reasonable jury could rely because it was worthless
evidence. I would not wish to be taken as being of the view that a request by a
co-defendant to be allowed to bring out evidence of a confession which had been
obtained in breach of the Code of Practice should be acceded to in all
circumstances. But this is a point on which we did not hear argument, and it is
not necessary to reach a view upon it in order to reach a decision in this
case."
20. The speech of Lord Hope indicates at p.138G that the statements in R v.
Myers were not relied upon by the Crown because they had been obtained in
breach of the Code of Practice issued under the Police and Criminal Evidence
Act 1984. There can therefore be no general rule that inadmissibility at the
suit of the Crown precludes a co-defendant from cross-examining as to and
adducing such statements. There may still be some scope for arguments about
admissibility of confessions at the instance of a co-defendant in special
circumstances where an attempt by the Crown to adduce the statement is open to
objection under s.78. But the general rule at least is clearly that a judge has
no discretion to refuse to admit such a confession at the instance of a
co-defendant.
21. Mr Aina submits nevertheless that the judge in the present case ought to
have investigated further the possibility that the confession might be
inadmissible at the instance of the Crown under s.78 and that special
circumstances might in effect exist for refusing Mrs Slaughter permission to
use it. The judge ought to have held a voire dire, and, if he had
concluded that the confession would have been inadmissible at the instance of
the Crown under s.78, then either he could have refused to allow Mrs Slaughter
to rely on it, or, if he could not have done this, he should have ordered
separate trials of the appellant and Mrs Slaughter.
22. We leave until later the issue of severance. We do not accept the
submission that the judge should have held a voire dire, to assess
whether in the light of s.78 the Crown could have relied upon the confession,
before he decided to allow Mrs Slaughter to do so. Firstly, there is no
support in R v. Myers for any such procedure. Secondly, even assuming
that there might be exceptional circumstances in which it might become
appropriate, there was, we think, nothing in the circumstances of this case
which could call for such a procedure. S.78 involves a court assessing whether
"having regard to all the circumstances, including the circumstances in which
the evidence was obtained, the admission of the evidence would have such an
adverse impact on the fairness of the proceedings that the court ought not to
admit it". We do not have the transcripts of any submissions which counsel made
to the judge on this aspect. But there is no material before us which suggests
as a matter of fact any basis on which s.78 could have been applicable as
against the Crown. The confession was volunteered. The defendant's only
explanation in evidence for making what he said was an untrue confession was
that he was desperate to find a way out of prison. That he was desperate is
clear from the letter. But it offers no basis upon which the judge would
conceivably have ruled that the admission of the confession would have such an
adverse effect on the fairness of the proceedings that it ought not to be
admitted. It was pre-eminently a letter about the truthfulness of which it was
for the jury to make up its mind, having heard all the evidence in the case. It
follows that, even if a voire dire should (contrary to our view) have
been held, we are confident that it would have made no difference whatever to
the admission of the confession.
23. We therefore reject Mr Aina's submission that the confession letter should
not have been admitted, or not have been admitted without first holding a
voire dire.
24. The prior relationship with US Customs
Mr Aina next submits that the judge erred in allowing further details of the
appellant's relationship with US Customs to be elicited during
cross-examination of the appellant on behalf of Mrs Slaughter. The details were
that the appellant had reported to Mr Gorezney that he was working for members
of the Coastal Cartel in Puerto Ria since the early 1990s, that he had
identified persons, vessels and vehicles used to transport cocaine and houses
rented by the cartel to secure narcotics and currency, that he had reported
that he had delivered cocaine to individuals for onward transportation to New
York and New Jersey, and had stored cocaine and cash in Palman Delma and that
he had provided information leading to the recovery of $1m worth of cocaine
concealed in stereo equipment for export to JFK airport in 1994.
25. The judge refused to allow counsel for Mrs Slaughter to elicit this
information from Mr Gorezney in chief. But, after Mr Gorezney had produced the
appellant's letter, Mr Aina for the appellant asked Mr Gorezney to confirm in
cross-examination that the appellant provided assistance to US Customs between
April 1994 and November 1995 in ongoing investigations regarding the activities
of drug rings in Puerto Rico and mainland USA and that at the time of his
arrest US Customs were signing the appellant up as an official informant.
Thereafter, when the appellant came to give evidence, the judge allowed him to
be cross-examined on behalf of Mrs Slaughter to elicit the further details
mentioned. So far as objection is taken to this course on the basis that the
appellant had not "given evidence against" Mrs Slaughter, we have already
rejected that submission. So far as objection is taken on the ground of
relevance, Mr Aina conceded before us that the further details had, as he put
it, some, albeit "marginal" relevance. We consider that, having sought to
elicit a favourable picture from Mr Gorezney as to the nature of the
appellant's drug-related activities, the appellant put himself at risk of
having a fuller, and more representative, account of those activities adduced.
Furthermore, the activities positively supported Mrs Slaughter's case that,
whereas she had no contacts in the Caribbean or South American areas, the
appellant had contacts and experience in both.
26. We therefore reject this ground of appeal also.
27. Previous trips
The ground of appeal relied upon here is that the judge erred in allowing
the Crown in its opening address to rely on the fact that the appellant had
booked and paid in cash for prior trips to St Lucia for other persons and to
adduce evidence of that fact. It is said that the prior trips could only be
relevant if the Crown could prove that they were drug-related, and that there
was no evidence of this. The judge rejected the appellant's submissions on
these points at trial on the basis that the prior bookings went with the
booking in which Mrs Slaughter was involved to establish a pattern. In our
judgment, this ruling was correct. The jury was entitled to conclude that,
although a person may on any particular occasion make and pay in cash for a
booking for another, particularly his partner, the prior bookings for a variety
of persons, including in its inception the booking to which Mrs Slaughter
succeeded, were evidence of an unusual pattern of behaviour which was capable
of throwing light on the likely purpose of the booking used by Mrs Slaughter.
We therefore reject this ground of appeal.
28. Severance
We now come to the area which featured most prominently throughout Mr Aina's
submissions. It involves to some extent re-visiting some of the points which we
have already considered.
29. Mr Aina made submissions during the trial that there should be separate
trials of the charges brought against the appellant and against Mrs Slaughter.
His initial submissions were based on a skeleton dated 21st March
1999 which referred to the prejudice which the appellant would suffer if Mrs
Slaughter or the Crown was able to introduce (a) his prior conviction, (b)
previous association with cocaine in respects not in fact introduced at the
trial and (c) the previous trips. The judge rejected this submission by a
ruling on 22nd March 1999, in which he took account of the fact that
counsel for Mrs Slaughter would want to introduce all matters he legitimately
could against the appellant. At least one further express application was made
at the end of March 1999, on the basis that the introduction of the appellant's
letter into the trial required severance. This was rejected on 30th
March 1999. The judge rejected submissions (not renewed before us) that there
had been an abuse of process in respect of the letter. He said that, edited of
extraneous and immaterial matter, the letter could be adduced as an exception
to the hearsay rule under the principle in R. v. Myers [1998] AC 124,
whereas, if severance was ordered, "Mrs Slaughter would be deprived of this
evidence, clearly relevant to her defence". The letter was, he added, "not
inadmissible under s.76 of the Police and Criminal Evidence Act, whatever the
arguments under s.78 may be". Conducting a balancing exercise he considered
that the interests of justice required joint trial.
30. Mr Aina submits that the judge was wrong in these rulings and wrong not to
order severance, if not at the outset, then as the trial progressed and its
course became apparent. Mr Aina accepted at the outset of his submissions that
normally co-accused persons should be tried together and that the fact that a
"cut-throat" defence is being run, so that a defendant's bad character is
placed before the jury, does not normally lead to severance. But he submitted
that the facts here were quite exceptional. In particular, although the Crown's
case was itself weak, the conduct of Mrs Slaughter's defence led to
considerable prejudicial material going before the jury. He referred in
particular to the letter produced by Mr Gorezney, the appellant's prior
conviction and the further information about his drug-related activities
adduced during Mr Gorezney's cross-examination.
31. In relation to the letter, Mr Aina submits that the judge treated the
matter as effectively concluded by R. v. Myers [1998] AC 124, and failed
to follow the approach of this court in the earlier case of R v. O'Boyle
(1991) 92 Cr. App. R. 202, where the court, in the exercise of its discretion
under s.5(3) of the Indictments Act 1915 to do so where desirable, ordered a
separate trial.
32. In O'Boyle the Crown sought to adduce, but the judge under s.78 of
the Police and Criminal Evidence Act refused to permit the adducing of
confessions made by one defendant to the US DEA in circumstances where there
had been no caution or information as to the defendant's rights and the
defendant had been clearly reluctant to make the confession and was induced to
do so by promises that everything said would be in confidence and would not be
used in evidence and that the DEA might be able to help the defendant with the
English police. A co-defendant indicated however that he would cross-examine
and if necessary take steps to prove the confession as part of his defence. The
court held that a separate trial should at that stage have been ordered. The
statement was "obtained in circumstances which cast grave doubt on its
voluntary nature and reliability", and the issue moreover was whether there
should have been severance, because "Once it was before the jury, it would be a
practical impossibility for them to ignore it". The disadvantage to the
co-defendant in not being able to attack the defendant by use of s.1 Proviso
(f)(iii) "was in the circumstances minimal" (p.206 foot). The court said of the
case that
"this was a wholly exceptional, if not unique, case and the judge gave
insufficient weight to the fact that separate trials would do little, if any,
harm to co-defendant or prosecution, whilst a joint trial would almost
guarantee that the appellant would be convicted whatever direction was given to
the jury as to how they should approach the difficulty".
33. Mr Aina relies on that approach. As to the judge's conclusion in this case
that Mrs Slaughter would be prejudiced through being "deprived of the evidence
of [the confession], clearly relevant to her defence", Mr Aina submits that the
judge erred because, in any separate trial, Mrs Slaughter could have adduced
the confession under ss.24 and 25 of the Criminal Justice Act 1988. This does
not appear to have been a point made at the trial, but whether that is so or
not is not presently material.
34. S.24(1) makes potentially admissible statements in documents created or
received as the holder of a paid office containing information supplied by the
maker of the statement who had or may reasonably be supposed to have had
personal knowledge of the matters dealt with. The Crown was ready to accept
that these conditions were satisfied by the letter, by the receipt by Mr
Gorezney (presumably in his capacity as a US DEA or US Customs officer) from
the appellant of the letter. However, under s.24(4), if the letter was
"prepared .... for the purposes (a) of pending or contemplated criminal
proceedings", then it is not admissible, since it is also accepted that the
further requirements of s.24(4) were not satisfied. Was this letter prepared
for such purposes? In our judgment, it was not. S.24(4) was designed to require
certain formalities to attach to statements designed for use in or for such
proceedings. The letter was the exact opposite. It was written to try to bring
the proceedings against the appellant to a stop, and the last thing that its
writer contemplated was that it would be used in or for their purposes.
35. Accordingly, we approach the matter on the basis that s.24(1) could in
terms apply. S.24(1) is a mechanism for adducing in hearsay documentary form
information which could have been adduced in the witness box by the person
referred to in the sub-section as having personal knowledge of such
information. The exclusion of confessions by a third party has been explained
not merely by the practical risk of fabricated statements, but also by the
consideration that "it is for the legislature, not the judiciary, to create new
exceptions to the hearsay rule": see R v. Blastland [1986] AC 41. It is
nonetheless difficult to think that s.24(1) was conceived or passed with any
conception that it would impact on the general rule, mentioned by Lord Slynn in
the passage cited above, that a confession by a third person is not
admissible.
36. Assuming however that it does so impact, does this undermine the judge's
decision declining to sever? In our judgment, it does not. A confession in
writing adduced in circumstances where the appellant would no doubt already
have made it clear that he categorically denied the truth of what was said (and
might even have denied making it at all) is self-evidently a far less potent
and helpful weapon than a confession adduced in the course of a joint trial in
which there was every likelihood (as proved to be the case) that the confession
could be put to the appellant, that his direct oral evidence could be obtained
upon it and that the jury could see him give and assess his explanation for it.
The very rationale of the exclusion at common law of a confession by a third
party is the risk of fabrication. That risk is in no way diminished by
satisfaction of the conditions for application of s.24.The rationale for the
admission of a co-defendant's confession is the presence of both defendants as
parties to the proceedings: see e.g. the citation in R v. Myers at
p.135H from the Lord Justice-Clerk's opinion in Perrie v. H.M. Advocate
1991 J.C. 27.
37. Mr Aina argued that the judge ought to have held a voire dire in
order to determine whether the confession woud have been admissible at the
instance of the Crown, because only then could he properly assess whether there
was prejudice to the appellant in having a joint trial at which Mrs Slaughter
would be able to adduce it. For reaons we have already given, we do not
consider that there was any basis for suggesting that the confession would not
have been admissible at the instance of the Crown, or would have been excluded
under s.78. This point therefore fails.
38. We consider as a result that the judge was right not to order severance in
the light of the admission into the trial of the confession.
39. Mr Aina next submitted that, if (as we have held) s.1 Proviso (f)(iii)
allowed cross-examination of the appellant on this conviction, this, at least
in conjunction with the confession letter, the past activities adduced in
cross-examination of the appellant and the appellant's past trips, led to a
danger that the appellant would be convicted for his past activities, rather
than because of evidence bearing on the particular importation. The combination
of these factors, if nothing else, necessitated, he said, severance.
40. We do not accept this submission. The confession itself would, as
indicated, have been admissible at the instance of the Crown. The conviction
was admitted because the appellant was tried with Mrs Slaughter and gave
evidence against her within s.1 Proviso (f)(iii) of the 1898 Act. Prejudice
arising to a defendant from the admission of his character in this way is a
factor to be taken into account in deciding whether to sever. But the prejudice
here was in our judgment insufficient to outweigh either the general
presumption in favour of a joint trial on joint charges like the present, or
the specific prejudice which would have flowed on severance from the loss of
opportunity on Mrs Slaughter's part to have the confession statement adduced in
proceedings to which the appellant was party and in which he was likely to give
evidence (as he did). Cross-examination of the appellant about his past
drug-connected activities as an informant took place in response to
cross-examination on the appellant's behalf of Mr Gorezney to elicit a partial
account of these activities; such activities were also relevant to the issue
what (if any) relevant contacts the appellant had in the Caribbean or South
American area. The past trips were material evidence, admissible and admitted
at the instance of the Crown, to demonstrate a relevant pattern which threw
doubt on the appellant's account.
41. The result is that we also reject Mr Aina's submission that
severance should have been ordered because of the cumulative effect of these
matters. In so far as they were prejudicial, they were properly admissible as
such.
42. The Summing Up
Finally, Mr Aina raises a number of points on the judge's summing up. We take
first a point raised on the character direction given. The judge directed the
jury in terms to which no criticism can be directed that the appellant's prior
conviction went only to credibility and not propensity. He then pointed out
that the only reason they had heard of the appellant's conviction was that he
had given evidence against Mrs Slaughter, and repeated that his prior
conviction went only to his credibility, that is whether they believed him or
not. Mr Aina submitted that the judge should further have directed the jury
that the only issue of credibility to which the conviction went was whether
they accepted Mrs Slaughter's account as to her role, in other words that they
should wholly ignore the conviction and any adverse impact they might think it
to have on credibility when considering the Crown's case against the appellant.
He did not support this proposition with any authority, and we know of none. We
cannot accept it. Credibility cannot be parcelled up, in the manner
suggested.
43. The proposition also seems to rest on an assumption that the Crown could
not itself, under s.1 Proviso (f)(iii) and subject to the judge's discretion,
have cross-examined with reference to the conviction, once the appellant gave
evidence against Mrs Slaughter. That assumption does not presently appear to us
well-founded: see Archbold paragraph 8.212 and the authorities there cited,
including Murdoch v. Taylor [1965] AC 574, 593B-C per Lord Donovan,
with whose speech Lord Reid (so far as material), Lord Evershed and Lord Pearce
agreed. That passage in Lord Donovan's speech was expressly referred by Lord
Slynn in R v. Myers at p.134E-F. This point therefore fails.
44. In respect of the confession letter, Mr Aina further submitted that the
judge should have directed the jury that they must not use the letter in any
way as evidence in support of the Crown case. He founded this submission on
passages in Lord Slynn's speech in R v. Myers, at pp.135D-F and 137E-G,
which in turn cite Reg. v. Rowson [1986] 1 QB 174 (see per Goff L.J. as
he was at p.182A-B), Lui Mei Lin v. The Queen [1989] AC 288 and Reg.
v. O'Boyle (1990) 92 Cr. App. R. 202 (see per Lord Lane at p. 206 foot).
45. All these cases cited in R v. Myers were concerned with involuntary
or other statements which would not have been admissible at the instance of the
Crown. In some of the cases, even the making of the statement was also in
issue. The position and issue in Reg. v. O'Boyle have been summarised
earlier in this judgment. In R v. Rowson the judge had ruled the
statement inadmissible for breach of the Judges' Rules, and Goff L.J. said
simply that the judge should briefly explain the situatioin to the jury and
"discourage" them from placing weight on it in considering the Crown case
against the defendant who made the statement. In Lui Mei Lin the judge
had ruled that the statement had not been made voluntarily but as a result of
inducements, and was inadmissible at the instance of the Crown. Lord Roskill's
references to R. v. Rowson and to the need to warn the jury not to use
the statement in any way as evidence to support the Crown case were in that
context. We point out that Lord Roskill in giving the advice of the Privy
Council was also careful to say with reference to what had been said in R v.
Rowson that:
"Their Lordships doubt if it is possible to state general principles which
should be uniformly applied in every case where the question arises."
46. In R v. Myers too, as it appears from the speech of Lord Hope at
p.138G, the statements were not sought to be relied upon by the Crown because
they had been obtained in breach of the Code of Practice issued under the
Police and Criminal Evidence Act 1984.
47. R v. Myers clearly cannot stand for any general rule that, whenever
a co-defendant introduces into a trial by cross-examination or otherwise
material which the Crown has not sought to adduce, the judge must tell the jury
to ignore any evidence given in that regard when considering the Crown case.
The basic rule as stated in Murdoch v. Taylor at p.583 per Lord Morris
is that
"If an accused person becomes a witness his sworn testimony, if admissible,
becomes a part of the evidence in the case. What he says in cross-examination
is just as much a part of that evidence as what he says in examination in
chief."
48. In every trial involving co-defendants, there may be much evidence that
only comes to light at the instance of one or other defendant, without the
judge having to give any special warning in that regard. Evidence may also be
adduced at the instance of one defendant which would be of no relevance as part
of the Crown case. The need for any warning exists most clearly in situations
like those in the cases just considered. That is cases where there is a
difference between the position of the Crown and the co-defendant, which makes
matter available for use by the latter which would have been material to the
Crown case, but which would, if the Crown had sought to rely upon it, have been
excluded, particularly on grounds relating to its involuntariness or under
s.78. For reasons which we have already indicated, the present is not such a
case. Without seeking to define the circumstances in which a warning may or may
not be appropriate, there was in our judgment no need for the judge to give any
special warning to the jury in the present case.
49. Mr Aina's last point on the summing up was a somewhat similar point, raised
in the different context of the evidence adduced about the appellant's prior
activities. It is said that here again the judge should have told the jury to
ignore the evidence when considering the Crown's case. Again, it seems to us
that the evidence would have been admissible had the Crown adduced it. It was,
as we have stated already, adduced by Mrs Slaughter by cross-examination in
response to the appellant's cross-examination of Mr Gorezney, which sought
positively to put before the jury a favourable picture of the appellant's
activities. It also went to the question whether the appellant had contacts in
the relevant geographical area. His case was that he had none, and that he
could not therefore have made arrangements for Mrs Slaughter, or arrangements
for the loading into the suitcases of the drugs, as - on her evidence, which
the Crown's case in this respect no doubt endorsed - he had done. Again
therefore we do not consider that any special warning was required.
50. Conclusion
Standing back from the individual points, Mr Aina asked us to conclude that
cumulatively their impact was such as to make the appellant's trial unfair and
as he put it, at the least to raise a sufficient "lurking doubt" to make the
conviction unsafe. Having considered the points individually and collectively
and having also considered the whole of the summing up and the other material
before us, we consider that the appellant's trial was fair, and we are left in
no doubt about the safety of the jury's verdict. This appeal therefore
fails.
LORD JUSTICE MANCE: In this appeal, for the reasons which have been set out in the draft of the judgment approved by the Court, subject to editorial amendments, we have come to the conclusion that neither individually nor cumulatively do the points which have been argued on behalf of the appellant have the effect of making the appellant's trial unfair, or, as it was submitted, raising a sufficient lurking doubt to make the conviction unsafe.
In those circumstances, being left in no doubt about the safety of the jury's verdict, this appeal is dismissed.
MR AINA: My Lord, I have had the opportunity to consider the judgment. It was kindly handed to me yesterday.
I have reflected considerably on whether or not there is a matter that is of a sufficient public importance to go to the other higher place. My Lord, having given that reflection, there is one matter which I have drafted, three questions. My Lords will appreciate that between yesterday and today is not always sufficient time to get it perfect, but it gives an indication of the area concerned. Can I hand up the handwritten copies? (Handed).
LORD JUSTICE MANCE: Are there any detailed points that you have on the judgment?
MR AINA: My Lord, there is one small matter. I have not put a mark, but there was something very small which I am sure was an innocent mistake. Can I perhaps deal with that -- find that, and perhaps get that through to your clerk? It is a small matter.
My Lords, the reason for those questions is simply this --
LORD JUSTICE MANCE: We will have to consider them together.
MR AINA: Of course, my Lord. But could I simply say this to explain, having looked at the passage in Archbold, paragraph 1-176, where are all the Appeal Court cases dealing with this issue, it has never been visited in the House of Lords surprisingly. That can be contrasted with the other area of severance that does cause problems, which is sexual cases, where they raise the similar fact principle, where there is quite a lot of dicta by the House of Lords, namely R v Boardman and the more recent case of R v P where the House of Lords has had to consider the ambit of a trial judge's discretion to sever and in what circumstances he should.
It just seems, in my respectful submission, that where the House of Lords have never been asked to consider this area, one reading -- I choose my words carefully -- of the judgment that my Lords have made in this case is that the limited discretion that did exist before this appeal may be even more limited in the circumstances of the facts of this case. If that is right, in my submission, there is a point of public importance as to how a trial judge should approach this problem.
LORD JUSTICE MANCE: We will retire and consider that point while you identify the other point.
MR AINA: Certainly, my Lord. Thank you very much.
(Short adjournment)
LORD JUSTICE MANCE: Have you located the point?
MR AINA: My Lord, I have. It is paragraph 31 of the judgment.
LORD JUSTICE MANCE: Yes.
MR AINA: And when one reads that it reads as if the Court of Appeal -- sorry, the trial judge in O'Boyle ordered a separate trial. Of course he did not and that is why -- one of the reasons why the appeal was allowed. I think that paragraph perhaps just requires a slight amendment as it reads.
LORD JUSTICE MANCE: I think it is probably all right. It was probably picked up on the word processor as too long a sentence.
We have considered the question of an appeal to the House of Lords and we do not certify that a point of law of general public importance is involved.
MR AINA: Thank you, my Lords.
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