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Cite as: [2000] EWCA Crim 35

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WYNA, R v. [2000] EWCA Crim 35 (19th April, 2000)

Case No: 199907399/Z1

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
(HIS HONOUR JUDGE CLIFTON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 19^th April 2000

B e f o r e :
LORD JUSTICE POTTER
MR JUSTICE GARLAND
and
THE RECORDER OF LONDON
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	REGINA
	- v -
	GLEN MICHAEL WYNA

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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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Geoffrey Lowe Esquire (for the Crown)
Mark Barlow Esquire (for the appellant)
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Judgment
As Approved by the Court
Crown Copyright ©

1. On 6^th April 2000 we allowed the appellant's appeal and ordered a re-trial, stating we would give our reasons later. We now do so.
2. On 9^th November 1999 in the Crown Court at Liverpool before His Honour Judge Clifton and a jury, the appellant was convicted of possessing a controlled drug of class A (Diamorphine) with intent to supply. He was sentenced to seven years imprisonment.

3. The proceedings against the appellant had been transferred from Chester Crown Court and joined for trial with proceedings against Keith Ross, Kevin McFaul and Terance Wout who faced a count of conspiracy to supply diamorphine. Another defendant, Hendrik Smit had pleaded guilty to that conspiracy and given evidence for the Crown. Ross and McFaul then pleaded guilty on a written basis and the Crown offered no evidence against Wout.

4. The appellant appealed against conviction by leave of the single judge who also referred his application for leave to appeal against sentence to the Full Court.

5. The police had carried out a long-term surveillance operation between August 1997 and January 1999 in relation to the activities of Ross, McFaul, Smit and others. Ross was the appellant's uncle and, on 8^th November 1998, observations were being kept on his home as a result of an overheard conversation that someone would be coming over at the weekend and bringing in "gear". In the early morning the appellant arrived at the address in a white Rover car, leaving shortly thereafter followed by the police. He drove to central London where a man was seen to place an item in the boot of his car. He then made his way to the motorway heading northbound and the police stopped his vehicle on the M6, finding in his boot a package containing 4.01 kilograms of heroin. During the course of the day the appellant had been seen making frequent use of a mobile telephone and, on two occasions, a public telephone.

6. It was the Crown's case that the appellant had known the purpose of the trip to London, whereas it was the appellants case that he had been duped by his uncle, Mr Ross, and that he was on an innocent errand and ignorant of what was in the package containing the drugs.

7. In a crisp and careful summing-up, the judge dealt with the evidence in a structured form tailored to three issues highlighted by him in what were otherwise essentially undisputed facts. The undisputed facts were set out in the form of admissions for the jury. In particular they included an agreement that Ross, McFaul and Smit were involved in a conspiracy to supply heroin. Also that the package in the boot of the car which the appellant drove back from London contained just over four kilograms of heroin at 35% purity with a value of about £333,000.

8. The issues referred to by the judge were as follows:

(1) An issue whether or not, for the purposes of his journey the appellant had removed from the white Rover the taxi plates which it usually bore. A witness, Andrew Gaskell, said that he worked for the same taxi firm as the appellant in Ellesmere Port. He had been allocated the car in which the drugs were found. However, the appellant had approached him the night before his London trip and told him that his uncle had arranged a job for him in London. At the appellant's request, Gaskell agreed to let him use the car and that he (Gaskell) would use the car allotted to the appellant if necessary. He said that in the normal course of events, the taxis displayed plates on the front and rear and window stickers. He did not think there had been any stickers on his car; however, he said that it was plated when he handed the vehicle over. When it was returned he had not checked the plates. However, police officers, Watts and Manning, said that when they saw the car it did not display taxi plates. The appellant said that he had not removed the plates. He said there was one plate on the front of the car.
(2) An issue whether or not the appellant gave a true account of his earlier journey when stopped by the police on the M6. Police officers had been instructed to stop the appellant on the motorway on information from the Regional Drugs Squad, based on the earlier police observation. The officers stopped the appellant ostensibly for speeding but, as the judge put it, `they wanted to find the drugs in the boot which they knew were there'. The police officers stated that shortly after stopping the appellant the following conversation took place: "Have you been on a fare?" "Yes, I have taken people to Heathrow." "How much have you made?" "£200." "What else have you done?" "Nothing." The appellant said in evidence that he had not said that he had taken people to Heathrow; he had simply said that he had been to London via Heathrow. It is to be noted that, at interview some hours later, he said that he had followed the Heathrow signs before turning into London. However, neither prior to, nor during, his interview did the police bring to his attention for his comment the remarks he was alleged to have made at the roadside, let alone that those remarks represented a significant difference from his explanation in interview.
(3) The broad issue of what should be deduced from the overall circumstances of the arrival of the drugs in the boot of the car. The appellant said his uncle had telephoned him on Saturday. He decided to take the car allocated to Gaskell because his own car was more expensive to run on a long trip to London. He had telephoned his uncle early on Sunday morning and gone to his house simply to discuss the route and finalise matters. He had originally been asked, and was proceeding, to collect a man from Euston and bring him back. He had checked the route to Euston with a friend who had told him to follow the signs to Heathrow Airport and cut into London shortly prior to reaching it. He did so. He had also asked the way to Euston from a policeman in Hyde Park. These matters were confirmed by the observations of the police who were tailing him. At 1154 he made a call from a telephone box to his uncle.
The car was then driven to Seven Sisters Road. At Seven Sisters, he was kept under surveillance and seen to get out of his car and approach a hotel. He then got back into the car and used his telephone again and got out and went back into the hotel. Again he came out, got into the car, then got out again and looked down to the right of the hotel, then moving the car a few yards before getting out of it and looking in the boot. Two minutes later he got out of the car again and went into the hotel. When he came out, he leaned into the car and picked something up. He then used the telephone again. Two minutes later a man appeared and went up to the appellant. The appellant opened the boot of the car and the man appeared to put something in it. The appellant then handed the man a black case, got back into the car and drove off. The appellant did not dispute these observations, save to say that the man who had the case when he came out, and that he had put it in the boot, opened it and taken out a package which he placed in the boot, then closing the case and walking off with it.
In relation to that issue, the judge advised the jury that they might be less interested in resolving whether or not the black suitcase was handed over at one stage, than to consider the overall circumstances by which the drugs came to be in the boot and whether, taken together, the appellant's actions that day were those of a man engaged in an innocent errand or were such as to indicate that he well knew he was engaged in a drugs exchange and was reporting back for instructions from time to time in connection with it.

9. The appellant's evidence in that respect was that his uncle had telephoned him the night before, asking if he would like to go to London and saying that it was worth £200. He agreed, understanding at the time that he was to collect a man from Euston, arriving in London between midday and 1pm. On the Sunday he had gone to his uncle's house early for instructions, where his uncle told him the man he was to collect did not speak good English and would be in the bar at Euston. He was given £100 with the balance to be paid on his return. He spoke to the policeman in London because he was lost. His uncle rang and told him the man would not be at Euston but would be at Seven Sisters and asked the appellant to ring McFaul for more details. He had been unable to get through on his mobile and so had used a call box. He was told at that time to go to Manor House Hotel. He had stopped en route and asked a shopkeeper for directions. When he saw the hotel he again rang Mr McFaul and was told to go in and ask for "Jeff". No one knew a "Jeff" and he rang his uncle who told him to wait and ring McFaul and tell him. McFaul told him to go back to the car and the man would be with him in a minute or so and he would be given a package. He did not think anything of it and sat and waited until he saw a man approach whom he assumed to be the man in question. The man was carrying a black "Doctor's case". He said something which the appellant did not hear properly and the appellant simply released his boot catch from inside the car and got out, the man following him to the boot. The man put the case in the boot, took out a packet and placed it in the boot and went off without saying more. The appellant then started to drive home.

10, In interview, in relation to the receipt of the package in those circumstances, he said that he had been worried about the situation. He thought there was something wrong in the back of his mind. However, in evidence he said that had not been true he had not had misgivings. On the way back he had telephoned his uncle to say he was leaving and his uncle had telephoned him several times to make arrangements so that they would meet at the `Rocket' pub. He said that when he was stopped, he had told the police he had been to London via Heathrow in the sense already made clear. In cross-examination he said that he had no idea what was in the boot of the car, because the man who handed it over was obscuring the package in the boot with his body.

11. There were further formal admissions before the jury to the effect that there was no forensic evidence of the presence of drugs on the appellant's clothing and his fingerprints were not found on any packaging. The events of 8^th November were the only observations made by the police of the appellant. Nothing was found in searches of his home and car.

12. The perfected grounds of appeal lodged in this case were extensive. However, in the course of argument for the appellant they reduced essentially to two grounds.

13. One is said to arise as a combination of error on the part of the judge and of defence counsel, who appeared on this appeal and freely acknowledged such error. First it is submitted that, though no application or objection was raised below, the evidence of the appellant's alleged questions and answers at the roadside should have been excluded under s.78 of the Police and Criminal Evidence Act (PACE). In this respect, Mr Barlow for the appellant submits, as Mr Lowe for the Crown concedes, that upon the police officers' own evidence, at the time they stopped the appellant they had reasonable grounds to suspect that he had committed an arrestable offence. Accordingly, he should have been cautioned immediately before any questions were put to him regarding his suspected involvement in a drugs offence on the basis that his answers might be given in evidence in a prosecution: see Code of Practice C:10.1. Further, the questions and answers constituted an interview: see C.11.1A. As such they were subject to the requirements of C:11.5, which required an accurate record to be made giving details of the place and time etc, and of C:11.7 which provides that, if an interview record is not made during the course of the interview, it must be made as soon as practicable after its completion. More importantly, by virtue of C:11.10, unless it is impracticable, the person interviewed should be given the opportunity to read the record and either to sign it as correct or indicate any respect in which he considers it inaccurate. Equally, by reason of C:11.2A, even if the matter was not treated as warranting the status of an interview, it was plainly a significant statement or silence which occurred before the appellant's arrival at the police station, in respect of which the appellant should have been asked whether he confirmed or denied it before his formal interview commenced.

14. That being so, Mr Barlow submits, though Mr Lowe does not concede, that if prior application had been made to exclude the evidence, it would have been successful. At the same time, he acknowledges, that as he did not make an application to exclude it, the judge can scarcely be criticised for not taking the point of his own motion.

15. The point in respect of which the judge is criticised by Mr Barlow relates to his failure, prior to summing-up, to raise with counsel for discussion his intention to give a Lucas direction in respect of the appellant's answers at the roadside. Mr Barlow informed us that the direction came as a surprise to him, because the answers given by the appellant had received a far lower profile in the course of the case than that which was accorded to them in the judge's summing-up, in which, (as we have indicated), the question whether they were a lie was identified by the judge as one of the three issues on which the jury should concentrate. Mr Barlow submits that, had the judge raised the matter with counsel, he would certainly have requested that such a direction be omitted because its effect which would be to highlight as a lie a matter in relation to which there was a serious possibility that the police officers were in error, the conversation having been recorded well after the event and the evidence being suspect for the reasons already given. He says that he would have asked the judge to omit the Lucas direction and direct the jury that they should ignore any niceties of difference between what may have been said at the roadside and what was said in interview, on which the appellant had been afforded no opportunity to comment. Alternatively if the judge had nonetheless thought a Lucas direction to be appropriate, he could at least have pointed out the failure of the police to comply with procedures laid down in the Code for the protection of the appellant in circumstances of this very kind.

16. The second substantial matter of complaint is that the judge failed, in a case which cried out for it, to giver the jury a proper, or indeed any, direction as to the relevance of the guilty pleas of the other defendants which were before the jury during the trial. Indeed, the judge opened his summing-up upon the facts with the following passage:

"I now come to the facts of the case which are very much your concern. You may think that the general outline of the case is agreed. I say "the general outline". It is agreed that his uncle, a man called McFaul and another man called Smit - you do not have to worry about them - were involved and have been involved for sometime in a conspiracy to supply heroin.
You know - and I say you know because it is contained in the admissions - that the parcel that was delivered and put in the boot of the vehicle that the defendant drove back from London was a parcel that contained just over four kilograms of heroin and that it had a purity of about 35% ..."
17. It was of course the appellant's uncle who had given the appellant his instructions to go to London to meet the man who had handed over the parcel.
18 Later, having summed-up the prosecution evidence upon the three issues which he had identified for the jury, the judge said:
"Members of the jury, those are the three points upon which the prosecution rely to say to you: "here is man who has knowingly embarked on a trip to London knowing what the purpose was, that is to get a package involving drugs back to his uncle in London and knowing all the time that that was his duty, and that is the sort of thing that a drug dealer such as his uncle would do; employ a person who could be relied upon and who would have told him what was going on".
True it is that the judge then summed-up the defendant's case with the words:
"The defendant says: "I was duped." That is to say: "I was misled by my uncle into the risk that I was taking and I had not appreciated there was a risk and I did not know what the package contained a drug."

He then moved directly to the factual evidence given by the defendant. However, he did not, either then or subsequently, take the opportunity to give the important standard direction identifying the precise relevance (if any) of the co-defendants' pleas (i.e. to remove any question in the minds of the jury as to why they were not also trying the other defendants), and stating that they could not and should not infer guilt simply by association and that the pleas of the co-defendants should have no bearing upon the jury's decision as to whether the prosecution had proved the defendant's guilty knowledge.

19. Having carefully considered these submissions, we consider that Mr Barlow is right when he says that they render this conviction unsafe. It is true that, upon the observations of the police officers, the case was a strong one in the sense that what the officers saw, and indeed what the appellant accepted they saw, had all the outward hallmarks of drug dealing. However, it was the appellant's case that, whatever the outward appearance, his trip to London was an innocent one. It was also his case that he had, from the moment he stopped, given a truthful account to the police, any discrepancy between what they had (belatedly) recorded him as saying at the roadside and what he said in evidence being the result of their error or misunderstanding rather than any untruth on his part. The matters raised on this appeal go to both those aspects of his defence.

20. It has to be said for the judge that, in the absence of any objection at the time, he can hardly be blamed for admitting what was said at the roadside. Further, he no doubt regarded it as more likely to be the subject of a complaint if he did not give a Lucas direction than if he did. However, had he, in accordance with the practice recommended in R -v- Burge and Pegg (1996) 1 Cr. App. R 163, brought to the attention of counsel his intentions in this respect, he might well have dealt with the matter differently. While, as it seems to us, the responsibility for the situation which arose must primarily lie with counsel, the fact remains that the summing-up of the judge erected into a matter of major significance the precise wording of a roadside exchange obtained in breach of the Code of Practice and in respect of which the judge might well have exercised his discretion to exclude such evidence under s.78 of PACE had the matter been raised with him.
21. As to the omission of the judge to give a proper direction in respect of the pleas of others, and in particular the appellant's uncle, we consider this omission most unfortunate. Mr Lowe has made a number of submissions directed to minimising the effect of the matters of complaint raised by Mr Barlow. He has correctly pointed out that, even if the evidence of the roadside conversation should have been excluded that does not mean the conviction is unsafe: (see R -v- Sparks [1991]Crim LR 128. He also submits that, had the judge omitted to give a Lucas direction, it would have been a source of legitimate criticism. As to the omission of the standard direction in respect of the effect of the co-defendants' guilty pleas, he submits that it was not necessary because the judge made quite clear that the defendant's case was that he had been duped by his uncle and that the critical matter was whether, on the evidence of the officers' observations and the admitted actions of the appellant, they were satisfied that he must have been dealing in drugs.

22. Mr Lowe is correct that in principle the verdict may be safe, despite the non-exclusion of the roadside conversation. Nonetheless, it does not prevent an inevitable feeling of unease that, as a result of the failure of counsel to raise the question of admissibility to begin with and the failure of the judge to discuss his intentions in relation to a Lucas direction, there may have been highlighted before the jury a matter which ought never to have been before them at all. But whatever the position in that respect, on the question of the standard direction we consider that the omission of the judge was an important one, bearing in mind that the case for the prosecution was overwhelmingly one of inference in relation to the defendant's state of mind. In that respect the Crown relied not only on the observations of the police in London, but on the overall context and likelihood of the defendant's innocent participation assuming that his uncle was, as described by the judge, a "drug dealer". In such a circumstance it was a matter of high importance that the jury should not resort to any inference of guilt by association.

23. In all the circumstances we regard the conviction as unsafe and, for the reasons stated, we have allowed the appeal.