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Cite as: [2000] EWCA Crim 22

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KHORASANI, R v. [2000] EWCA Crim 22 (15th March, 2000)

Case No: 99/0420/Z5 & 99/0431/Z5

IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 15th March 2000
B e f o r e :
LORD JUSTICE ROCH
MRS JUSTICE RAFFERTY
and
THE RECORDER OF LEEDS
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	REGINA
	- and -
	ALFRED JOHN LEWIS AMIR KHORASANI

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(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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Mr Henry Globe, QC appeared on behalf of the Crown
Mr Stuart Lawson-Rogers, QC & Mr Antonis Georges appeared on behalf of the Appellant Lewis
Mr Richard Pratt appeared on behalf of the Appellant Khorasani
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE ROCH:
On the 2nd November 1998 the trial of four men commenced at the Crown Court at Preston. They were Alfred Lewis, Amir Khorasani, Michael Hailwood and John Martindale. They were tried on a single count of conspiracy the particulars being that they with 16 persons named in the indictment and other persons unknown conspired together between the 15th April 1995 and the 25th February 1996 to supply or to offer to supply to others controlled drugs of Class A, namely ecstasy.
On Friday the 18th December 1998 the jury returned unanimous verdicts of guilty against Alfred Lewis and Amir Khorasani. Later the jury were to acquit Hailwood and Martindale.
On the 5th February 1999 the judge sentenced Alfred Lewis to 12 years imprisonment and Amir Khorasani to 7½ years imprisonment. They appeal against their convictions with leave of the single judge and renew their applications for leave to appeal against sentence which the single judge refused.
There is in Liverpool a night-club called The Cream Night-club. The club is situated in a converted warehouse and has a number of dance floors, in which customers of the club can dance to different kinds of music, and a number of bars, one of which is known as The Chill Out. This club attracts a considerable number of young people and on busy nights, particularly at weekends there are extended queues outside the club of those wishing to enter and inside the club there may be up to 2,000 customers.
The club is owned either by a Mr Davenport or by a company which is in effect Mr Davenport's company. The internal security at the club was at the material times under the direction of a Mr McKenna an employee of Mr Davenport or his company.. External security, that is the control of the doors and those queuing outside the doors was the function of a security company one of the principals of which was the appellant Lewis. Mr Lewis is a well known figure in the city of Liverpool, having been five times world champion at kick boxing and been the owner and director of a gymnasium as well as being involved in a security company. We have been told that in addition to providing staff to man the doors and control the queues waiting outside the club the security company also had certain responsibilities within the club.
The police came to believe that the drug ecstasy was being supplied inside the club to club customers on a widespread scale. The police therefore set up a surveillance operation code named Operation Top in April 1995 and that operation continued until arrests were made in February 1996. That operation involved undercover police officers identifying persons they suspected of dealing in the drugs or controlling those dealing in the drugs; such persons were given "target names" for example two persons who were seen to be selling ecstasy tablets one Connolly and another Dean were respectively given the target names of Curly and Carl. In addition the under cover officers made purchases of tablets from those who were selling them, which were known as "controlled buys". Those tablets were sent for chemical analysis and a schedule of those controlled buys was prepared. Like the jury and the trial judge, HHJ Townend, this court has that check list. That check list shows that in the initial period between the 12th May 1995 and the 16th July 1995 the tablets purchased by the undercover police officers from the various vendors were all ecstasy tablets containing either MDMA or MDEA. Between the 21st July 1995 and the 31st November 1995 all the tablets purchased by the undercover police officers contain ephedrine procaine and ketamine, EPK. It was that fact that lead to the indictment charging not merely supply but also offers to supply, the offering of tablets as ecstasy tablets being an offence even if the tablets were not in reality ecstasy tablets, the offence being complete once the offer has been made, see R -v- Gill [1993] 97 Cr App R 215 a decision of this court on the proper interpretation of s. 4(1) of the Misuse of Drugs Act 1971.
The prosecution called a substantial amount of evidence to establish the existence of the conspiracy alleged in the indictment. The prosecution relied on six matters which emerged from that evidence to establish the existence of the conspiracy that they alleged. First, the large number of floor dealers selling ecstasy tablets, generally six to ten on average per night. Those were not always the same people. Second, the floor dealers seemed to know each other. Often they were observed together in groups of two or sometimes more in the toilets. Third, the individual floor dealer would seem to have his regular pitch within the club premises. Fourth, the selling of ecstasy tablets observed by the undercover police officers was on a considerable scale and it occurred regularly night after night. Despite the scale of the selling and despite the presence of doormen or security men no one took action against the floor dealers that the undercover police officers saw. Fifth, there was evidence that the floor dealers were actively assisted by the doormen employed by the company of which Mr Lewis was a principal. Floor dealers were seen to be allowed into the club without having to wait in the queues of those wishing to enter the club as simple customers. The prosecution were able to produce and show the jury video film of such incidents. Another instance was of a doorman coming up to a targeted floor dealer and being seen to put his arm around the floor dealer and speak to him and then that floor dealer going into the archway of the Chill Out and starting to deal. Sixthly, there was evidence by undercover police officer of statements to them by the floor dealers made when the officers were making controlled buys of tablets, which indicated that the floor dealers were being controlled by others and had to give part of the price they charged for an ecstasy tablet, namely £10 to someone above them in the hierarchy.
Mr Lawson-Rogers, QC who has conducted this appeal on behalf of the appellant Lewis conceded at the outset of his submissions that it was not in dispute that there was a conspiracy or conspiracies to supply ecstasy tablets or to offer to supply ecstasy tablets at this club with the floor dealers who sold the tablets to customers being organised and controlled by others. In making that concession Mr Lawson-Rogers did not concede that the evidence pointed ineluctably to a single conspiracy. That qualification was to preserve a ground of appeal, namely that the judge had failed to direct the jury adequately on the need for the jury to be sure that this was a single conspiracy and not two or three separate conspiracies. Alternatively the judge's directions on this issue were such as in effect to withdraw that issue from the jury. We say at once that that is not a ground of appeal that has impressed this court. We shall give our reasons for this view later in this judgment.
The prosecutions' case against Mr Lewis was that he was at the top of the organisation responsible for this conspiracy. The case against Mr Khorasani was that he had joined the conspiracy in September 1995 as a manager or organiser of the floor dealers.
The prosecution relied upon three categories of evidence against both appellants. The first category was the evidence of undercover police officers of seeing the appellants at the club on various occasions and on those occasions seeing the appellants behave in a way which was to be explained only if they were part of the conspiracy. For example in Mr Lewis's case, it was said that on the 5th August 1995 two undercover police officers, DC Brookes and PC Costello saw Mr Lewis in the club pass a bag of white tablets to a man called Arthur Bate, in respect of whom there was a considerable body of evidence that he was involved in the conspiracy as a manager or controller of the floor dealers. Indeed Mr Bate had pleaded guilty to being concerned in the supply of ecstacy, and had been sentenced to 6 years imprisonment later reduced on appeal by this court to 5 years.
The second category of evidence can be called the telephone and pager evidence. This evidence involved schedules being prepared showing telephone calls between the telephones of the appellants and telephones of other persons named in the indictment. It also included evidence of other persons named in the indictment having at their home addresses the various telephone numbers of the appellants. We say various because, to take Mr Khorasani, he had three such numbers, his home number, his business number and his mobile phone number. It was the prosecution's case that this evidence showed frequent contact between the appellants and other persons named in the indictment and moreover demonstrated sequences of calls from which the jury were entitled to infer that messages were being passed for example from Mr Lewis to Mr Khorasani and from Mr Khorasani to a floor dealer. The importance of this evidence in the prosecution's submission was heightened by the explanations given by the appellants to distance themselves from these phone calls which explanations the prosecution maintained were palpably false.
The third category of evidence consisted of oral statements made by floor dealers to undercover police officers implicating the appellants. At the outset of the appellants' trial counsel defending the appellants had sought a ruling from the judge excluding this evidence either as being inadmissible or, if it was admissible as a strict matter of law, in the exercise of the judge's discretion under s. 78 of the Police and Criminal Evidence Act 1984. The judge had ruled that evidence to be admissible and decided not to exercise his discretionary power under s. 78 to exclude it because in his judgment the admission of the evidence would not have such an adverse effect on the fairness of the proceedings that it should be excluded.
It is the admission of that evidence that forms the first two grounds in the appeal of Mr Lewis and forms the first ground in the appeal of Mr Khorasani. We propose to look at this aspect of the case first.
The prosecution as part of their case against Mr Lewis led evidence of five oral remarks made by floor dealers to an undercover officer referred to at the trial as DC Tony. The first was said to have been made by the floor dealer known as Curly on the 26th August 1995. On that occasion DC Brookes and DC Tony approached two floor dealers, Curly and Carl. DC Brookes bought a tablet from Carl and DC Tony had a conversation with Curly. In that conversation DC Tony said that he had told Curly "Listen mate if you are looking for lads to work for you, I might know someone who is interested." To which Curly had replied "Yeah sound". The officer had asked "How much do you get?" and Curly had replied "I get twos from each tab and my boss gets fours and you have got to get through about 200 a night." The officer's evidence was that he then said "Well he'll need to know who he is working for so he doesn't tread on anyone's toes". At which Curly replied "Alfie Lewis".
The second occasion was the 9th September 1995. The prosecution evidence was that DC Tony and a DC Nat approached the floor dealer known as Carl. He had asked Carl if he was with Curly that evening at which Carl had replied "No. He wont be working here for a while; Alfie wants me working on my own for a couple of weeks so it doesn't come on top".
The third occasion was the 25th October 1995. Again they were conversations between DC Tony and Carl. In the first DC Tony expressed doubts about being a floor dealer saying that he would be too frightened of Lewis, to which Carl replied that Alfie was all right; there was no need to be frightened of him. The officer also said he asked Carl what had happened the previous weekend and "Why hadn't the floor dealers gone in". Carl had told him that there were rumours that the police were watching the premises so he had been told not to bother to go in. The officer then asked Carl who told him that and Carl's reply was "Alfie - he's sound like that". The final piece of evidence of this type in Lewis's case related to the 27th October 1995. This was a conversation between DC Tony and Curly. Curly told him that the other floor dealers had been sacked at the request of Alfie Lewis and that Alfie was "Don uno". Curly had told him that he was welcome to a job working for Curly as a dealer and that he needed seven other people to work for him the next evening.
In the case of Mr Khorasani the prosecution were permitted to lead three observations of Mr Khorasani at the club at which statements of floor dealers not made in the appellant's hearing formed part of the evidence of the undercover observing officers.
The first occasion related to the 4th November 1995. On that evening DC Tony and DC Nat saw the appellant approach the floor dealer known as Curly. When the appellant left Curly DC Tony had said to Curly straight away "I didn't like to acknowledge you in case the man you were talking to wasn't known as it were". Curly replied "Oh no problem he's one of my bosses". The second such occasion was the 11th November 1995. Again it is the evidence of DC Tony that he saw Mr Khorasani talking to Curly inside the club. The appellant had been seen earlier remonstrating with Curly pointing at him and apparently telling him off like a child. When that had happened and Curly had returned to his normal selling position a PC Rooney, another undercover officer, had gone up to Curly to buy a tablet and asked Curly if everything was OK and received the answer "Yeah. No problem. He was just checking I was still selling. He thought I'd fucked up".
The third occasion was the 25th November. This was the evidence of DC Tony that he saw the appellant attract Curly's attention in the bar known as Chill Out. Tony had been intending to approach Curly but did not do so when the appellant attracted Curly's attention. Some time later which could have been anything between 40 minutes and 4 hours later DC Tony approached Curly apologising for not having come up to him earlier but saying that was because Curly's boss was nearby. Curly had asked who DC Tony meant and was given a description of the person being referred to. Curly had then said, according to DC Tony "Oh he's not my boss any more but he sorts things out in here".
The judge commenced his ruling in which he decided that the above evidence was admissible by saying:
"The questions for decision at this stage of the proceedings are firstly whether certain words uttered by drug dealers on the floor of the Cream Night-club are admissible against the defendant Lewis or Khorasani as the case may be, pursuant to the undoubted principle which may for the present purposes be expressed in this way, the declarations of any conspirator in furtherance of the common design may be given in evidence against any other conspirator provided that there is a prima facie case that that other conspirator is a party to the agreement otherwise. The second question is if any such words are admissible whether the evidence should be excluded by reason of the principle of exclusion set out in s. 78 of the Police and Criminal Evidence Act, 1984."
We have been referred to a number of decision on this area of the law. It is not, in our judgment necessary to refer to those decisions which are well known. As was pointed out by Williams J in one of the earliest cases on this part of the law, that of R -v- Blake and Tye [1844] 6 QB 126 at 139, unless the law is that nothing can prove a conspiracy except hearing the parties talk together, it has to follow that the existence of a conspiracy may be shown by the detached acts of the individual conspirators.
From that, the principle emerges that evidence of acts done or declarations made by one alleged conspirator are admissible in evidence at the trial of alleged co-conspirators provided that they were acts done or declarations made in furtherance of the alleged conspiracy and not simply mere narrative descriptions or admissions of past events. Such acts done or declarations made will in effect be the conspiracy in operation. Such acts done or declarations made do not become inadmissible merely because they implicate an alleged co-conspirator by referring to him directly or indirectly. However, in such a situation the fact that the acts done or the declarations made do implicate a co-conspirator may be a ground for the court excluding that evidence under s. 78 of the Police and Criminal Evidence Act, 1984. If the acts done or the declarations made were not in furtherance of the conspiracy charged, then evidence of them is admissible only against the doer of the acts or the maker of the declarations and, if that person is not on trial such evidence cannot be introduced by the prosecution at the trial of alleged co-conspirators. Finally where acts done or declarations made in furtherance of the conspiracy are admitted, which incriminate an alleged co-conspirator who was not present when the acts were done or the declarations made, the alleged co-conspirator is not to be convicted on such evidence alone: there has to be other evidence which on its face implicates him in the conspiracy.
In this case the judge found that there was evidence of the conspiracy charged in the indictment, that there was evidence of the makers of the statements being conspirators, i.e. floor dealers, and that there was prima facie evidence linking both appellants to that conspiracy which was quite independant of these statements by floor dealers which the prosecution wished to introduce in evidence as part of their case against the appellants. The judge having reached that point and having again reminded himself that "The words must be, as the principle has it, in furtherance of the conspiracy", then went on to amend the test by asking himself whether the conversations related to the present or future well being of the conspiracy. In our view it is of significance that the judge found it necessary to depart from the accepted statement of the principle in order to arrive at his ruling that these conversations were admissible. Despite the submissions of Mr Globe QC, for the respondents, we have come to the conclusion that these statements were not in furtherance of the conspiracy and should not have been admitted in evidence
Mr Globe submitted that the second and third statements on which the prosecution relied in the case of Mr Lewis, namely the oral statements of Carl to DC Tony on the 9th September 1995 and the 25th October 1995 and the three statements on which the prosecution relied as part of their case against Mr Khorasani were all statements in furtherance of the conspiracy because they were all examples of a floor dealer seeking to reassure a potential buyer of ecstasy tablets. With regard to the first and fourth statements relied upon by the prosecution in the case of Mr Lewis, that is to say Curly's oral statements on the 26th August and the 27th October 1995, Mr Globe argued that those statements were in furtherance of the conspiracy because they represented attempts by a floor dealer to recruit more floor dealers.
We have among the transcripts from the trial a transcript of part of the cross-examination of DC Tony by Mr Lawson-Rogers. From the officer's answers in cross-examination it emerges clearly that these conversations were conversations initiated by the officer with the floor dealer for the purpose of obtaining information, as opposed to an evidence gathering exercise. The officer accepted that his questions were deliberately designed to elicit information as to the person for whom the floor dealer was working. In our judgment it is unrealistic to categorise the answers as being declarations in furtherance of the conspiracy. They were spontaneous answers to an undercover police officer's questions relating or explaining events which had already happened. We accept Mr Globe's submission that the fact that the statement is made to someone who is not a conspirator does not necessarily mean that the statement is not in furtherance of the conspiracy. But in such cases the court must be careful to be sure that the statement advances the conspiracy or is part of the conspiracy in operation. We are satisfied that these seven statements did not fall on that side of the line and were not admissible as evidence against Mr Lewis or Mr Khorasani.
The consequence is that the jury heard evidence which was not admissible but which must inevitably have had a considerable impact on the minds of the jury. Had this ground of appeal stood alone then we would have had to consider a further submission by Mr Globe namely, that in the light of the directions the judge gave the jury concerning these statements by floor dealers, and the strength of the remainder of the prosecution's case against the appellants, these convictions are still safe. That is not a submission which we have found it necessary to consider because we have come to the conclusion that there was a further defect in the trial of the appellants namely the judge's handling of the issue of identification in his summing-up.
Before identifying that defect, we should record that there was a general complaint concerning the judge's summing-up made on behalf of both appellants. It was said that the judge in summing-up adopted an unusual approach. The judge started with general directions on the law and then proceeded to deal with the case of each defendant separately, starting with the appellant Lewis and then dealing with the defendant Khorasani, following Khorasani with the case of Hailwood and finally the case of Martindale. A further complaint is made that the judge changed the format in a significant way as his summing-up proceeded. In the case of Lewis the judge dealt with the prosecution's case and then the defence case. When dealing with the three other defendants the judge whilst setting out the prosecution's case included comments on the prosecution's case made by defence counsel, with the result that when it came to the defendants' cases the jury had already been reminded of the main points defence counsel were making whilst the prosecution case against that defendant was being related by the judge. It was said that the judge adopted this way of summing-up because he had a transcript of prosecuting counsel's closing speech to the jury which he used as the basis of setting out the prosecution's case against each defendant in the summing-up, and the judge had his notes of the closing speeches of defence counsel which he used as the basis of reminding the jury of the case of each defendant.
Whilst we would accept that the summing-up could have been shorter by being less discursive, we do not accept that the format of the summing-up was impermissible in a case of this kind. Indeed we can see advantages particularly for the jury in the judge dealing with each defendant in turn.
The criticism of the summing-up which in our judgement has substance is the criticism of the directions to the jury on the issue of identification. Both appellants accepted that they would from time to time have been seen at this club. Moreover they might have spoken casually on occasions, to a floor dealer, but that would not have been because that person was a floor dealer. In so far as undercover police officers gave evidence of conduct by either appellant indicating that they were controlling the floor dealers, or in the case of Mr Lewis on one occasion handing over ecstasy tablets to another, the appellants denied any such conduct. In relation to the incident which the undercover police officers maintained occurred on the 5th August 1995 in which the appellant Lewis was seen to pass tablets to Bate the main thrust of the appellant Lewis's case was that the police were fabricating this evidence against him. It was also part of the appellants' cases that there was a possibility that the police officers honestly believed they had seen the appellants doing the things the officers said the appellants had done, but that the officers had wrongly identified the appellants. The appellants relied upon the number of persons in the club, the way in which the club was lit, the noise and movement in the club making identification extremely difficult.
Both appellants advance as a ground of their appeals a complaint concerning the way in which the judge directed the jury on the issue of identification in their cases, saying that in their cases the judge virtually withdrew this issue from the jury. Again despite the careful and persuasive submissions of Mr Globe we have reached the conclusion that these criticisms of the summing-up are well founded.
The judge started his summing-up on Friday 11th December. He dealt with matters of law on that day including the general direction on identification. At the beginning of his direction on identification the judge told the jury that although the issue of identification was raised in other cases it was particularly relevant to the case of Michael Hailwood. The judge then chose when giving the general direction on identification to give it in terms of Michael Hailwood's case. When the judge came to direct the jury that there were weaknesses in the prosecution's identification evidence, he reminded the jury of weaknesses relating to the case of Michael Hailwood but said nothing concerning weaknesses in identification evidence relating to the cases of either appellant. He reminded the jury that of seven people who attended an identification parade on which Hailwood stood five persons identified Hailwood and two did not, one of those two picking out a totally different person.
Mr Lawson-Rogers for the appellant Lewis drew our attention to an earlier passage right at the start of the summing-up where the judge had said:
"As you know, I take this only because it is perhaps the most specific example, it is alleged that DC Brookes on the 5th August, when he says that he got within two feet or so of the defendant Alfred John Lewis, I shall call him "Alfie" hereafter because that is the name by which he is popularly known. I am not intending of course any disrespect to him, nor am I isolating this for any particular reason other than it is a particularly specific example, and that he saw, surprisingly because he wasn't there otherwise than to indicate to Costello I think it was, that that was Alfie Lewis. He saw the transaction passing the bag of tablets.
Of course as I will mention when I come to it, you have got to remember the identification point. Mr Lawson-Rogers, you may think realistically when he was dealing with that aspect of the matter, didn't spend any time on that because most people, nearly everyone in Liverpool, it seems, knows Alfie Lewis and DC Brookes told you he knew who Alfie Lewis was before this case ever arose, before he ever went to Cream and you may think that Mr Lewis, many people aren't , some people are, is once seen, not easily forgotten. I do not mean that unkindly at all. Some people are of distinctive appearance, some aren't.
You may think, it is a matter for you of course, but if he falls into that category of persons of distinctive appearance, so you may think when it comes to considering that aspect of the matter that it is not really an identification point and Mr Lawson-Rogers went to the heart of it in his submissions, he says Brookes is lying about it. As you know Alfie Lewis says that never happened. He may well have been in the club that night, he cannot remember, he was there very often as part of his job, but he never did that, it was a lie."
Mr Lawson-Rogers complained that this direction in effect killed off any question of misidentification by DC Brookes of the appellant Lewis as the man who had passed tablets to Bate, if such an incident had in truth occurred. In fact this issue was by no means dead because DC Brookes had been accompanied by another officer Costello, who, at an identification parade had failed to identify Lewis. Indeed Costello had picked out another person on the parade.
The judge when reminding the jury of the case for and against Lewis, when he came to the incident on the 5th August did remind the jury that Costello had failed to identify Lewis. But that was only after the judge had said to the jury:
"This you may think, assuming it is not a blatant fabrication by the Crown, which is what the defence say, I mean by the police officers, you may think that this is not an identification issue at all, for the reasons I've mentioned to you this morning, but it is a point to bear in mind."
Although the judge reminded the jury that Costello had failed to identify Lewis at the identification parade and had picked out another, the judge did not remind the jury of the point made by defence counsel that the fact that Costello picked out someone else was some evidence that the person who handed tablets to Bate, if anyone had done that, did not look like the appellant Lewis, or at the very least it was wrong to say that the appellant Lewis once seen was not the type of person one would forget.
Mr Pratt in presenting the appeal of Mr Khorasani submitted that identification was an important issue in Khorasani's case. The defence called for a full Turnbull direction related to Khorasani's case. Although the judge gave a full Turnbull direction, he related it to Hailwood's case and not to the case of Khorasani. A weekend intervened between the giving of that general direction and the judge's summing-up of the case for and against Mr Khorasani. It was of some significance that Hailwood was acquitted. Identification was crucial because of an incident which undercover police officers said they had observed on the 30th September 1995 of Khorasani carrying a bag of money which Bate had been seen with earlier that evening. Khorasani and Bate were seen in the car park of the club to go to Bate's car, a red Sierra, according to the police witnesses.
There were several weaknesses in the prosecution's evidence of identification of Mr Khorasani. First the evidence indicated that some undercover officers were observing a person to whom the target name "Trevor" had been given and some were observing a person to whom the target name "Danny" had been given. The prosecution had to persuade the jury that those officers referring to Trevor were referring to the same person as the other officers who were referring to Danny. The reason given by the officers for choosing the target name Trevor for the appellant Khorasani could not have been a true reason. The officers said they had chosen the name Trevor because of a spectacular goal scored by a player caller Trevor Sinclair. It turned out that at the time the name Trevor was chosen that goal had yet to be scored. There were also discrepancies in the descriptions given by various undercover officers of the person they were observing. Some described the person they were observing as black, some as half-caste, and some as a person of Middle Eastern origin. All claimed to be referring to Mr Khorasani.
Mr Pratt complained that when the judge came to deal with Mr Khorasani's case and reminded the jury that there was an identification issue, the judge went on to direct the jury in this way:
"Did the incidents happen? Well obviously that involves your assessing the credibility of the officers. It's alleged as you know I've mentioned already that Tony and Nat, their evidence is tainted forever by the lie, as it's said to be, with regard to naming the target as Trevor because of the Trevor Sinclair spectacular goal with the over head kick which didn't happen until sometime in 1996 as you know from the evidence. So their evidence is tainted forever is the broad thrust of the defence case and with regard to the other identification then in broad terms the identification parades were held in Manchester, apparently it was easier to hold them there because of finding similar persons to put on the parade. In Manchester the overwhelming likelihood, you may think this may well be right, the overwhelming likelihood is there wouldn't have been anybody on the parade who'd ever been to Cream except the defendant who was there often enough, so that it maybe you're asked to consider on behalf of the defendant that those other officers, apart from any tainting of them by their connection with Tony and Nat, could well have been simply picking out a familiar face, a face from Cream. No other face on the parade would have been a Cream face. Amir Khorasani was certainly a Cream face although he wasn't Trevor and you're asked to consider that possibility, whether they've been, in effect, corrupted by the corrupt, as it`s been alleged Tony and Nat or whether it's come about, if they haven't been corrupted in that way by the others, by that process simply recognising a familiar face but not a face from an event. So you have to weigh most carefully the credibility of the officers generally in that connection."
Mr Pratt submits, and we consider his submission to be sound, that instead of dealing with the issue as an issue of identification, the judge dealt with it as an issue of the credibility of the two police officers. The issue left to the jury by the judge was "Were the officers lying?" Where as the real issue raised by the defence had been the issue of identification. For example the discrepancy between the use of target names Trevor and Danny was left as a matter of credibility, the point whether the officers had been observing different people finds no place in the summing-up. The summing-up simply did not put the issues before the jury or direct the jury's attention to the potential weakness in the prosecution's identification evidence. In the case of one undercover officer, DC Tony, that officer had gone to a shop owned and run by the appellant Khorasani and seen the appellant Khorasani there prior to the holding of an identification parade on which that officer had picked out Khorasani. The defence point that there was a risk that the officer was identifying the person seen in the shop as a person he had seen at the club again finds no place in the summing-up on the issue of identification.
The remaining ground, which we have already mentioned, relates to the judge's directions to the jury, the issue whether there was a single conspiracy or more than one conspiracy. We can deal with this ground quite briefly. Mr Globe in his skeleton argument set out the judge's directions on this issue, which were numerous. The judge on many occasions directed the jury that they had to be sure that there was one agreement, namely the agreement alleged in the indictment. The judge in terms reminded the jury that Mr Lawson-Rogers had submitted that the jury could not be sure that there was one conspiracy, and the reasons relied upon by Mr Lawson-Rogers in making that submission. The judge also reminded the jury of Mr Globes response to that submission. The judge reminded the jury of this issue on each day of his summing-up and finally at the very end of his summing-up the judge said:
"You must be satisfied on the evidence that the defendant in question ....... participated in the single conspiracy alleged in the indictment ......."
It is true that on several occasions the judge expressed a view that this was not an issue likely to trouble the jury. For example early in his summing-up the judge said
"It is a matter for you, clearly it is a matter for you, although you have to find there was one agreement ...... which existed all the while ...... you may think you can be sure that there was one agreement."
And a little later the judge directed the jury:
"Who was a party to it is the real question you may think you have to grapple with, not was there a conspiracy, not are we sure it was the same conspiracy. You may think there really cannot be any doubt about that. You are to decide of course."
We consider that there is nothing in that ground.
In our judgment the admission of the oral statements which were prejudicial to the appellants because they incriminated the appellants in the conspiracy and our assessment that the judge failed in the cases of the appellants to give adequate directions on the issue of identification, and to leave the identification issues which arose properly before the jury in the appellants' cases caused these convictions to be unsafe. Consequently for these reasons we quashed these convictions at the end of hearing argument and gave the required directions for a re-trial.