England and Wales Court of Appeal (Criminal Division) Decisions

R v. Michael Ward Russell Andrews Wayne Broadley [2000] EWCA Crim 80 (20th December, 2000)

Case No: 2000/2874/Z5; 2000/2876/Z5; 2000/3145/Z5

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Wednesday 20^th December 2000

LORD JUSTICE WALLER:

1. On 28 April 2000 in the Crown Court at Winchester before His Honour Judge Cutler and a jury, after a trial lasting some five weeks, the appellants were convicted of conspiracy to steal. In addition the appellants Russell Andrews and Broadley were convicted of certain other offences. Broadley in addition pleaded guilty to a count of theft on an unconnected indictment. There were certain co-defendants, Lambourne, Clarke, Cichocki and Jamie Andrews, who were also convicted of conspiracy to steal. A co-defendant Beard pleaded guilty to the conspiracy to steal on the second day of the trial.

2. On 19 May 2000 after an adjournment for reports the following sentences were passed:-

Ward who was aged 23 years,

Conspiracy to steal [1st Ind.] 2 years 3 months imprisonment

Russell Andrews who was 22 years of age,

Conspiracy to steal [Ct.3 - 1st Ind.] 2 years imp

Handling stolen goods [Ct.24 - 1st Ind.] 12 months imp concurrent

Handling stolen goods [Ct.29 - 1st Ind.] 12 months imp concurrent

Theft - pleaded guilty- [Ct.8 - 3rd Ind.] 8 months concurrent

Total 2 years imprisonment

Broadley who was 34 years of age

Conspiracy to steal [Ct.3 1st Ind.] 3½ years imprisonment

7x Handling stolen goods recovered from

the burglary of motor cars the subject of the conspiracy

charge 12 months concurrent

Handling stolen goods being the cars used in the

conspiracy to steal [Ct.12] 18 months consecutive

Handling stolen goods [Ct.13] 18 months concurrent

Total 5 years imprisonment

Lambourne who was 20 years of age

Conspiracy to steal 2 years Young Offenders' Institute

Clarke who was 20 years of age

Conspiracy to steal 21 months Young Offenders' Institute

Cichocki who was 28 years of age

Conspiracy to steal 18 months imprisonment

Burglary on a separate indictment 16 months imprisonment consecutive

Total 34 months imprisonment

Jamie Andrews who was 26 years of age

Conspiracy to steal 2 years imprisonment

Present proceedings

3. Ward, Russell Andrews, and Broadley appeal against conviction for conspiracy to steal, count three of the first indictment, by leave of the single judge. Ward and Broadley also appeal against sentence by leave of the single judge.

Facts

4. It was the prosecution case that between December 1998 and the end of July 1999 the appellants, with co-accused, conspired together to steal from motor vehicles. Most of the evidence put in by the prosecution was read since it was uncontested and what the prosecution sought to do from that evidence was to establish that over an 8 month period there had been a spate of stealing from unattended motor cars in an area within 15 miles of Reading. It was an important part of the prosecution case that the conspirators used certain vehicles themselves, often stolen, to commit the offences. The cars which were broken into were usually parked in the open car parks of supermarkets, golf clubs, public houses and the like. The pattern evolved, according to the prosecution as follows. An old car, untraceable to any of the conspirators by virtue of its having been stolen or having had its number plate altered, would arrive and choose a victim car or two and the victim cars would be broken into and visible items stolen. This was often done brazenly in the full sight of members of the public who frequently took the index numbers and gave descriptions of the perpetrators. Occasionally a member of the public might be aggressively warned off.

5. The thefts were usually carried out by teams of two, three or sometimes four people. The cars which were used to transport the persons, as indicated, were themselves stolen or given false numberplates or were vehicles which could be simply disposed of and were thus untraceable.

6. There were about 65 proved thefts. The prosecution could prove that various of the defendants had been seen, often by the police on sightings, sometimes stopped and even arrested but never charged, in various cars. Sometimes when the cars were stopped tools which could be used in thefts were found in them. Sometimes the prosecution could prove that a particular defendant had been involved in a particular theft on a particular occasion.

7. There were 15 cars used as transport to or from the thefts. The prosecution case was that the establishment of links with those cars and the individuals was probative of those individuals partaking in an overall conspiracy to steal from vehicles. The prosecution also relied on the amount of sharing of these 15 cars, and the interchangability of those cars. Thus it was that the prosecution sought to prove sightings of the appellants at different times in connection with those vehicles in different combinations.

8. None of the appellants or their co-conspirators gave evidence at the trial. The essence of the case for all defendants was either that the sightings were no indication of criminal activity at all, or, if they were, that the evidence disclosed not one overall conspiracy as alleged by the prosecution, but individual conspiracies to carry out thefts from particular motor cars.

9. The essential complaint of the appellants is that the judge failed to put the defence case. They complain that the judge failed to review the evidence of each appellant separately; they say that the summing up was unbalanced and unfair and did not put the defence case; in the case of Ward a point is taken as to the admissibility of certain police evidence on the basis that the same was inadmissible on the ground of hearsay and a further point is taken on the admitting of evidence in relation to linking cars to incidents other than when thefts were actually taking place.

10. The judge in his summary of the evidence followed the scheme adopted by the prosecution, summarising the evidence by reference to the 15 motor cars used in transportation of persons to the thefts with which the case was concerned. In reviewing the evidence by reference to individual cars he took that evidence in chronological order setting out the sightings of the various alleged conspirators both on days when there were no thefts from other vehicles and on days when there were.

11. It is suggested by counsel for the appellants that the evidence against each of the appellants was actually much more limited than would appear from the impression given by the summing-up. Counsel appearing for the appellants on this appeal have directed the attention of this court to the involvement of their clients as indicated by the evidence in accordance with the way they put the matter, both (so far as Ward and Broadley were concerned) in submissions of no case to answer, and (so far as all appellants were concerned) in their submissions finally to the jury.

Evidence against Ward

12. The evidence of Ward's involvement can be summarised as follows:- Car D304 JJD a red Ford Sierra (Vehicle 10) was involved in the theft from a motor car on 27 March 1999. Ward was identified as a passenger in that motor car on 21 March 1999 and again on 23 March 1999 in circumstances to which we will return. The driver on each of those occasions was Glen Beard. It is right, as pointed out by Miss Knight, that on the days when Ward was identified as a passenger the car had not taken part in any criminal activity, so far as the prosecution case went. And there was no evidence of any crimes being committed on 21 or 23 March 1999.

13. On 22 April 1999 Ward admitted that he was driving a Ford Fiesta E881 YHJ (Vehicle 7) at a garage in Lower Earley in Reading. That car had false number plates and when it was found later that day on a grass verge in Whitely it contained three screwdrivers. Furthermore, a fingerprint was lifted from the rear view mirror which was the fingerprint left by Russell Andrews.

14. On 23 April 1999 (Miss Knight in her skeleton suggests March but we believe April to be accurate) Ward was the driver of a Austin Rover Maestro J385 SJW (Vehicle 9), that car later being involved in criminal activity, but not on that day.

15. Car D438 UCF, a white Ford Escort, (Vehicle 8) was again a car connected with criminal activity. Ward's name appeared on a DVLC document which had been returned to Swansea. This was a car in which tools had been discovered in the footwell of the passenger seat. It was further a car in which a scaffold pole had been discovered when the bonnet had been lifted. Ward was a passenger in this car on 12 May 1999 with Lambourne when the driver was Glen Beard.

16. Car E457 AGO was a blue Rover 820 saloon (Vehicle 11). That was involved in a theft from motor cars in a car park on 10 June 1999. Ward was a passenger in that car when it was being driven by Glen Beard on 3 June 1999.

17. On 9 June 1999 Ward was a passenger in VCX 2X a black Ford Escort (Vehicle 3). The occupants of this car had been acting suspiciously. After the officer checked the vehicle and allowed the occupants to leave, a damaged vehicle was discovered. The identification of Ward in this instance is a matter to which we will return.

18. On 2 July 1999 a white Ford Escort E38 FCN (Vehicle 1) was seen outside 23 Torrington Road. Ward told PC Willis that he was looking after the car. On 9 July 1999 occupants of that same car were seen breaking into vehicles and Ward accepted that he was in the driving seat when a police officer approached the vehicle. It was on that occasion that Ward was arrested and interviewed.

Evidence against Russell Andrews

19. On 12 March 1999 a car was broken into at the Bull Public House, Arborfield between 1-15pm and 1-30pm and the radio/cassette player was taken. A bloodstain was left on the centre console and blood samples taken from Russell Andrews had a matching DNA profile.

20. On 31 March vehicle E881 YHJ, (Vehicle 7) was stopped. It was driven by Russell Andrews who, when asked by the officer, said that he was Jamie Andrews. It was Russell Andrews' fingerprint that was lifted from the rear view mirror.

21. On 21 April 1999 Russell Andrews was seen seated in the driving seat of a white Ford Sierra E933 HGM (Vehicle 5). On 22 April Police Constable Sims, who knew Beard and Russell Andrews from photographs, saw the vehicle at about 13-25 in Reading with Beard driving and Russell Andrews as the front seat passenger.

22. On 10 May 1999 at 0035 in relation to D438 UCF (Vehicle 8), Russell Andrews was seen urinating in the bushes. When the bonnet of that car was lifted to check the VIN plate the scaffold pole was discovered. Also on the scene was Police Constable Kelly who gave evidence that he searched the vehicle and found a hammer that was on the floor on the footwell of the passenger side.

23. On 11 May 1999 at 15-30 Paula Jenkins had her car broken into. Mr Charles Owen Conway also had his car broken into, and the fingerprints of Russell Andrews were found on items taken from those two cars.

24. On 27 May 1999 a CCTV recording showed J 385 SJW a Austin Rover Maestro (Vehicle 9) coming into a car park. On the recording that car could be seen parking close to another car and two men get out of the Maestro and lean on the car belonging to Eleanor Shelley which then set the alarm off. Police Constable Field positively identified Russell Andrews and with him Glen Beard.

25. On 17 June 1999 VCX 2X (Vehicle 3) was seen in Reading town centre. The rear seat passenger was Russell Andrews.

26. On 9 July 1999 the occupants of vehicle E38 FCN (Vehicle 1) were seen acting suspiciously. There was some evidence that the occupants of that car had been trying to push the car away. A fingerprint of Russell Andrews was found on the outside near window. The occupants of that car were responsible for damage and theft of items from various cars in Eversley.

Evidence against Broadley

27. The evidence, so far as cars were concerned, related to four out of the fifteen cars. G825 BJH (Vehicle 2) was a vehicle that belonged to Broadley at the start of the alleged conspiracy. On 6 January 1999 this car was seen to be driven away from Broadley's address at 5 Wincanton Road and driven back thereto by Broadley. On the same day a Miss Susan Tritton's parked car was broken into and certain items stolen. Later that day G825 BJH was stopped. Broadley was driving it and Jamie Andrews was a passenger. A search of the vehicle revealed a large hammer, a black bakelite torch, a pair of ski-gloves and a Midland Bank cheque book in the name of Miss Tritton. Broadley was also seen in this vehicle on 9, 10 and 12 February 1999.

28. Car J385 SJW, (Vehicle 9) was involved in seven car thefts between 25 and 31 May 1999 when it was damaged in an accident. That car belonged to the appellant Broadley having been bought by him on 23 February 1999. It is not alleged that Broadley was involved in the seven thefts. But this car was seen on several occasions at Broadley's home with other conspirators occasionally in it. Ultimately this car was sold to Beard sometime on or about 25 May 1999.

29. E38 FCN (Vehicle 1) was owned by the appellant Broadley before the start of the conspiracy. It was impounded between 12 November and 21 November 1998. On 25 February 1999 another Ford Escort was stolen and rung taking on the apparent identity of E38 FCN. Broadley was charged with handling this car on count 4. A car with this number plate was seen by police at various times at Broadley's home. Between 30 June 1999 and 9 July 1999 this car was involved in about sixteen thefts or attempted thefts carried out by co-conspirators, albeit not by Broadley.

30. F627 UVH a blue Ford Fiesta (Vehicle 15) was sold at auction on 8 February 1999 to an unknown person. On 27 February 1999 another Fiesta was stolen and rung to become the auctioned car. On 5 March 1999 a car bearing the number of the auction car was used in a theft. The vehicle was not alleged to have been used again until recovered by police from the appellant's home on 21 July 1999, and this was the subject of count 5.

31. In addition to the above, the evidence against Broadley involved the finding of stolen items in his home from six of the thefts. One item from the thefts was found elsewhere with his fingerprints on it. These were separately charged.

32. In interview Broadley answered the questions that he was asked. He admitted knowing all of the other defendants save Clarke. He claimed that he bought and sold old bangers and often loaned them to others. He had no knowledge of E38 FCN (Vehicle 1) being a stolen or rung car. He admitted owning J 385 SJW (Vehicle 9) having bought it in February 1999. He admitted that he hired it out quite a bit. He had no knowledge of it being used in crime. He admitted owning vehicle G825 BJH a white Vauxhall Astra Estate (Vehicle 2) since October 1988 and again he admitted hiring it out to others. He again had no knowledge of it being used in crime. He admitted he was in it with Andrews when arrested on 6 January 1999 but knew nothing of the stolen cheque book in it. He admitted that he bought vehicle F627 UVH (Vehicle 15) quite a few months earlier, but again he had no knowledge of it being used in crime.

Points on appeal taken by the appellant Ward alone

33. Miss Knight, on behalf of the appellant Ward, makes two points on admissibility of evidence which do not arise on the appeals of the other two appellants. We will take the points separately.

The Hearsay point

34. On three occasions, 21 March 1999, 23 March 1999 both in relation to car D304 JJD (Vehicle 10), and on 9 June 1999 in relation to car VCX 2X (Vehicle 3), when stopped by police the occupants were asked to identify themselves. A passenger in those cars on those three occasions gave his name as Michael Kevin Ward, gave his date of birth which was the actual date of birth of Michael Kevin Ward, and gave his address which was the actual address of Michael Kevin Ward. The police officer who could provide that evidence could not independently identify the appellant Ward as a passenger in the motor cars on those occasions. The argument of Miss Knight accordingly before the judge, and again before us, was that such evidence from the police officers was hearsay and thus inadmissible.

35. In deciding whether the rule relating to hearsay is being breached it is important to examine the purpose for which any evidence is being tendered. As was said in the Privy Council in Subramanian v Public Prosecutors [1956] 1 WLR 965 at 970 and quoted with approval in R v Kearley [1992] 2 AC 228:-

"Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made."

36. Mr Butt sought to submit that this evidence was being put in by the prosecution to establish that the statement was made, but not the truth of the statement. That seems to us not a possible interpretation of the position. The evidence was clearly being put in to establish that it was the appellant Ward in the motor car at the relevant moment in time.

37. Prime facie thus it would appear that the police officer's evidence was hearsay. However, it is an exception to the hearsay rule that any statement, wholly or partly adverse to the defendant's interests, may be given in evidence. The matter is governed by s 76 of The Police and Criminal Evidence Act 1984 but was also the position at common law.

38. There is, as Mr Butt accepted on behalf of the Crown, an obvious circularity in the argument that in the instant case an admission was being relied on because it is the very evidence which might be infringing the hearsay rule which is being relied on to establish the admission. It is, we have to say, somewhat puzzling that there appears to be no authority dealing directly with this point, which, it would seem likely, has arisen on numerous occasions.

39. It is an unattractive proposition that where someone identifies himself as compellingly as was done in this case by the appellant Ward, that he can object to that evidence being put before the jury at all and then not give evidence so as to expose himself to cross-examination in relation to the question whether he was present in that motor car on the particular day. Equally, the application of the hearsay rule and the dangers from which it protects defendants must at all times be borne in mind.

40. We are of the view that the answer to the conundrum lies in the quality of the identification evidence which is being given. Thus, if as in this case, a man is giving his full name, is giving a date of birth which is the date of birth of the person with that full name, and is giving an address which is the address of the person with that full name, the evidence is strong to establish an admission. If, in addition, as in the case of the evidence relating to the date 9 June 1999 there is evidence which supports part-ownership of the motor car in the appellant Ward, that gives further support to such evidence

41. What however we would say, albeit this is not a matter addressed in the arguments by Miss Knight, is that in such cases a clear direction should be given to the jury in relation to such evidence. What we have in mind is a direction along the lines that only if the jury were sure from the contents of the statement sought to be put in by the prosecution and such surrounding evidence as there was, that it was the appellant giving an accurate identification, should the jury rely on the same as an admission of presence by the appellant.

42. In this case there was no direction of the sort suggested, but the contents of the statement sought to be put in were so powerful in identifying the appellant Ward, that, as it seems to us, such a direction would not have made any difference to the view that the jury were likely to take.

Sightings evidence

43. We can deal with this matter more shortly. The prosecution wished to put in evidence linking the conspirators to cars which were involved in the incidents where other cars were broken into, on occasions other than those when thefts from cars were actually taking place. Objection was taken to that evidence being admitted on the basis that its prejudicial value outweighed its probative value.

44. As it seems to us, that evidence was clearly relevant to establish the overall conspiracy, the subject of count 3 on the indictment. It showed the conspirators acting together; it showed them doing so in different combinations; and it showed the chopping and changing of drivers of the particular cars. We are tempted to say that it is because of its obvious relevance that attempts were made to exclude it.

Grounds relevant to all three appellants

45. Counsel for all three appellants put the following ground in slightly different ways. But the essence of their submission was (1) that the judge failed to review the evidence separately in relation to each appellant; (2) that the judge suggested that the jury did not follow an arithmetical approach when considering each case when each appellant's case was that the limited number of times that they were sighted was highly material to their defence; and (3) that the summing-up was unbalanced with the defence case never being fairly put.

46. The judge in summing-up a case of this sort always has a difficulty. The defendants had not given evidence and had thus not put forward any positive case. It follows from that that there cannot be a summary of their evidence, albeit there can be reference to the answers that they gave in interview. It also follows that in essence the defendants' case will be one which has been argued by counsel on their behalf in their final speeches by reference to the evidence that has been put in by the prosecution.

47. The judge chose to sum up the case by reference to each of the 15 cars identified as having been connected with the various thefts from other motor cars. He did so chronologically in relation to each motor car. We do not think that he was bound thereafter to look at each of the defendants' cases separately in the way suggested by counsel for the appellants, and in particular by Miss Knight and by Mr Montgomery. Of course the thrust of counsels' case in their final speeches was to address the number of sightings of their clients and suggest that the evidence connected their clients in only very limited ways with the particular motor car. But, it would be unfair to the prosecution case to suggest that "the only evidence against Ward" or "the only evidence against Russell Andrews" or "the only evidence against Broadley" was as identified by their counsel in their final speeches and as identified earlier in this judgment. The judge was correctly directing the jury that the first question for consideration was whether there was some overall conspiracy, and in so far as the prosecution was seeking to establish that as against all defendants, the whole of the evidence was relevant and material to that issue. To identify the appellants' links with the conspiracy in the way that their counsel were entitled to do, was not something which those appellants were entitled to have the judge do in his summing-up.

48. We have to say that if the judge had set out on that task it seems to us that in identifying the various times and links he would have been bound to do so in a way which would have stressed that the appellants did have an involvement which they had not gone in to the witness box to deal with.

49. As for the comment about not following an arithmetical approach, in our view that was a proper comment to make. We do not read the comment as being prejudicial to the position of any of the appellants. The judge was directing the jury that they should not just count incidents - they should be sure that the appellants were involved in the conspiracy.

50. We finally turn to the criticism that the defence case was not fairly put and thus that the summing-up was unbalanced. The defence case was either that the sightings which were in evidence showed no criminal association at all, or if there was something sinister and some criminal association demonstrated, the maximum which the prosecution had proved was that the defendants were parties to individual conspiracies and not one overall conspiracy.

51. The judge dealt with his direction on conspiracy at the outset of his summing-up from p.20 through to p.23. When one reads the whole of that passage it seems to us clear that he is directing the jury to be sure that the defendants were party to an overall conspiracy. Miss Knight suggested that a passage at p.23D was inaccurate. There the judge said:-

"But, as I say, you are given that evidence, and it is for you to assess it as to whether in fact these are defendants acting on their own, or are they acting as part of a scheme of things over this period."

52. Miss Knight suggested to the judge at the conclusion of his summing up, supported by other counsel, that it might not be apparent from that passage that the defence case, at least in large measure, was that there were many conspiracies rather than defendants acting on their own.

53. It was that suggestion from counsel which led the judge to give a further direction to the jury before they finally retired at p.160 through to p.162 in the following terms:-

"... but I stress on Count 1 really what I said to you, I hope, at the beginning which you have understood that here the prosecution have set themselves out to prove one agreement and one scheme which is at the background of all this. Whilst, as I have already said to you, the prosecution do not have to prove that it was running throughout the whole period, but at the same time the prosecution must prove an agreement between at least two of these people at some stage during that period and the defence have been saying well it is not good enough that there may be a number of very small conspiracies, because each time there may be an allegation of a joint offence. Some defendants deny any involvement in any crime whatsoever. Mr Ward and Mr Clark are two particular examples of that, but there are other cases whereby some of the defendants agree with their identifications or the forensic evidence taken as to put them at a particular scene at a particular time with others. Merely because they are with others committing crime, if that is how you find it, is evidence which goes towards a conspiracy but it is not conclusive of it.

The defence are saying that it is not the prosecution allegation that there is just a mini conspiracy, one a day, lots of little different conspiracies. It is very important for you to see that the prosecution are seeking to prove to you a whole agreement over the majority certainly of that period as put through these vehicles and the other evidence. If you conclude the prosecution have failed to show that and that at highest all they are showing is a number of joint offences between defendants, but not part of an overall agreement or scheme, then it would then be your duty to acquit.

I want to stress that to you as the way that the prosecution are putting it and that complies with a number of the defence speeches made to you yesterday and the basis of the defence being put to you. So please bear that in mind when you are considering Count 1 in this indictment".

54. In that passage innocent association is left to the jury and a series of mini conspiracies is left clearly to the jury, those being the essence of the defence being raised by counsel for the defendants.

55. Already it is right to say that at p.23 the judge had said to the jury :-

"It is really a question as to looking at the evidence, what inferences you the jury can safely draw from that evidence that has been placed before you, and remembering, of course, what the defence contend that there is either some innocent association or even if there is a sinister or criminal association between these defendants, it does not in fact amount to the crime of conspiracy."

56. Following that passage the judge summarised the prosecution case, and then at p.27 he put the defence position as each counsel had put it to the jury.

57. Some complaint is made of the way that the judge summarised counsels' arguments and of the phraseology that the judge used. Mr Montgomery, for example, complained about the use of a phrase in the summing up which Mr Montgomery accepted that he did in fact use, that "the whole thing may be deeply unattractive", and the further use of the phrase that Mr Montgomery's client should not be held guilty "by association". Miss Knight objected to the use of her expression "well boys will be boys" which she had she said used in a different context to that in which the judge used it. Mr Cartwright complained that the passage at p.29 did not put his argument as fully as he had put it when addressing the jury.

58. We were referred to a number of authorities in relation to the way in which a judge should deal with the defence in his summing-up. Most are concerned with situations in which a defendant has given evidence. A summary of some of those authorities is contained in Archbold 2001 paragraph 7-65 where the following paragraph appears:-

Failure to refer to defence

"In R v Badjan, 50 Cr.App.R. 141, CCA, it was held that where a cardinal line of defence is placed before the jury and that finds no reflection at any stage in the summing up, it is in general impossible to say that the conviction is secure. See also R v Jones (P.) [1987] Crim.L.R. 701, CA (in a complicated and lengthy case, it is incumbent on the judge to deal with salient points arising in the evidence, and to put the essential thrust of the defence); R v Bury [1997] 10 Archbold News 2 (where summing up fails to put defence before jury, it will be rare for the Court of Appeal not to conclude that conviction is unsafe); and R v Akhtar [2000] 1 Archbold News 2 (where the defendant neither gives, nor calls evidence, but has been extensively interviewed, it is of particular importance that the summing up should at least summarise the main points made by the defendant; only rarely, if ever, would a conviction be adjudged safe not withstanding a failure to sum up the defence).

Where, however, the judge omitted to refer to any of the evidence except that as to the appellant's good character, it was held that whereas in a complicated and lengthy case it is the duty of the judge to refer to the salient points of the evidence, in a short case and one in which the issue of guilt or innocence can be simply and clearly stated it is not necessarily a fatal defect to a summing up that the evidence has not been discussed: R v Attfield, 45 Cr.App.R. 309, CCA. It is no part of the judge's duty to build up the defence of someone who has not given evidence, although he should remind the jury in summary form of what the defendant said about the matter prior to trial: R v Hillier and Farrar, 97 Cr.App.R. 349, CA".

59. It seems to us that in a case of this sort where defendants have accepted in large measure the evidence, and their guilt or otherwise depends on what inferences are to be drawn from that evidence, it is not incumbent on the judge to trace all the arguments of defence counsel as to the way in which the jury should look at the evidence. It is incumbent on the judge to ensure that the jury are aware of the thrust of the defence case. In this case the thrust of the defence case was that the prosecution, in some instances, had only established innocent association; and if and in so far as there were instances when the criminal activity was the only proper inference, the prosecution had failed to demonstrate that that was part of a larger conspiracy as opposed to a mini conspiracy.

60. That that was the defence case would seem to us to have been made clear by the judge from the passages at the commencement of the summing-up when one reads in full pp.21 on through to p.31. But if there could be any doubt about that, that doubt is dispelled by the passage that we have quoted from p.161.

Could the jury have been in any doubt as to what the defendants' case was? It seems to us that the answer to that question is no and that even if some judges would have gone further than this judge did, it cannot be said that the defence case was not left fairly to the jury.

61. In those circumstances the appeals against conviction of all three appellants are dismissed.

Appeals against sentence

The sentence of Ward

62. The appellant Ward received 2 years and 3 months imprisonment. He was convicted, unlike his co-accused, only on the conspiracy count. The thrust of Miss Knight's complaint, so far as Ward is concerned, is that he received 2 years 3 months whereas Lambourne, Clarke, Cichocki, Jamie Andrews and Russell Andrews all received less. When it was put to her that one feature was that her client was 23 years of age whereas others were somewhat younger, she could answer that by reference to the fact that Cichocki and Jamie Andrews were older still, and in any event the judge did not purport to make any distinction on the ground of age.

63. When it was suggested to Miss Knight that one feature of Ward's position was that he had been given a chance by a combination order on 2 July 1999, but then within days was carrying out further acts in furtherance of the conspiracy, she suggested that the fact that Clarke and Cichocki were on licence were comparable features in their case.

64. If one examines the position of Clarke and Cichocki, the judge's conclusion in their cases was that they were much less involved than others. The judge clearly thought that the appellant Ward was fully involved from March 1999, and if one adds in addition that on 2 July he had been given this chance, it seems to us impossible to criticise the judge imposing 2 years and 3 months in his case.

65. Ward's appeal against sentence must accordingly be dismissed.

The sentence of Broadley

66. Broadley was 34 years of age and thus considerably older than the others. The judge formed the view that he was at the centre of the conspiracy. The prosecution had opened the case that Broadley and Beard were at the hub and that others were the spokes of the conspiracy. The judge was in the best position to assess the relative criminality of the different participants and thus 3½ years for the conspiracy is not in our view excessive, never mind manifestly so.

67. Mr Cartwright however, on behalf of Broadley, submitted that it was wrong in principle for the judge to have passed consecutive sentences for the handling of the motor cars. In our view the judge was entitled so to do, but, in any event, the real question is whether a period of 5 years for the overall criminality was manifestly excessive. This had been a major operation well planned, involving the ringing and disguising of old motor cars so that they could not be traced. It involved the inconvenience and distress of many owners or passengers in motor cars in relation to 69 incidents. It involved dishonesty on a very major scale. No credit was due for any plea of guilty and in the circumstances it seems to us that for a person involved at the hub and involved in the dishonest handling of motor cars a period of 5 years was not excessive.

68. The appeal against sentence of the appellant Broadley is accordingly also dismissed.