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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wahab & Anor, R v [2002] EWCA Crim 1570 (26 June 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2002/1570.html
Cite as: [2002] EWCA Crim 1570
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- These are appeals by Azizul Wahab and Joseph Cromer against their convictions in the Crown Court at Preston, before His Honour Judge Edward Slinger and a jury, on 23rd and 24th November 2000 of conspiracy to supply a controlled drug of class A between 1st January 1996 and 31st August 1998. Wahab was convicted of a further conspiracy, to conceal or transfer the proceeds of drug trafficking, between the same dates. They appeal with permission of the full court.
- They also renew applications for permission to appeal against the sentences imposed on them on 15th December 2000, when Wahab was sentenced to 12 years’ imprisonment and 7 years’ imprisonment, concurrent, and Cromer was sentenced to 9 years’ imprisonment.
- This case involved the large scale supply of heroin. The police became aware of a particular problem in the Burnley area. Accordingly surveillance was organised. This revealed a sophisticated retail operation run from two addresses in Nelson, on day to day basis, by a man called Dewhurst, with the assistance of another man, Crossley. Both Dewhurst and Crossley pleaded guilty to the same conspiracy to supply heroin alleged against the appellants.
- The surveillance showed that over a 73 day period in 1998, 1500 individuals were admitted to the front door of a house in Leeds Road, and a further 420 visitors went to the back door during a 42 day period. During another 14-day period, 400 individuals called at another address, in Russell Street.
- The Crown’s case was that over a period which lasted rather longer than two years, Wahab was one of those who provided the heroin supplied by Dewhurst, and that Cromer, who lived in Cleethorpes, became a substantial buyer from Wahab for distribution to others on the East coast. There was no direct evidence of involvement by Cromer before early 1998.
- Wahab’s case at trial was that although he used heroin personally, and purchased it for his own consumption, he only supplied it to Cromer for Cromer’s personal use. He was not a party to the conspiracy alleged. Cromer’s case was that he was a heroin addict, so desperate to get the drug which was unavailable in Cleethorpes, that he visited the Burnley area to make personal purchases. This meant that on every occasion when he travelled to Burnley, he drove or was driven some 135 miles in each direction.
- It was common ground at trial that Dewhurst and Crossley had pleaded guilty, and had been involved in a retail operation which made countless individual supplies of heroin. Both Wahab and Cromer admittedly dealt with either Dewhurst or Crossley, or both, but insisted that they did so as no more than two of the many users supplied with heroin by them.
- The police investigation further demonstrated a formidable list of telephone contacts between various parties connected with the conspiracy. For example, during the course of a 41 day period during 1998, the police discovered that there had been telephone contact between Wahab and Cromer on 33 days. They also discovered that Cromer’s diary and telephone list included numerous entries for “Anton” (a reference to Wahab) and that Wahab’s mobile phone showed entries for Cromer, Crossley, and Dewhurst. During the 41 day period Wahab made 58 calls to Cromer, Cromer telephoned Wahab 86 times, Wahab telephone Dewhurst 249 times, Dewhurst contacted Wahab on 92 occasions, and Wahab telephoned Crossley on 73 occasions. In addition a total of 390 calls were made between Wahab and Arshid Khan, and 131 calls between him and Dewhurst. Assad Khan, Arshid’s older brother, was acquitted. Arshid Khan has evaded attempts to arrest him.
- The evidence of these contacts between Wahab and Cromer, and Wahab and Dewhurst and Crossley, contributed to a formidable case against Wahab, and closely implicated Cromer, seriously undermining their defences that each was simply a user of the drug.
- We shall briefly illustrate the nature of the contacts demonstrated by the telephone calls, and documents later discovered by the police.
- On 7th February 1998, after contact from Cromer’s telephone to Wahab’s mobile phone, a variety of calls were made by Wahab to others, including Dewhurst. On 11th February a telephone call suggested that Cromer was going to visit Burnley from Cleethorpes on the following day. An entry in Cromer’s diary for 12th February recorded references to car hire, freezer bags and cellophane, a car registration and to “keeping buns fresh for fishing”. In cross- examination, Cromer said that his diary entries showed how he had to try to keep his life in order, a problem arising from his admitted addiction. On a previous fishing trip, he said that his packed lunch had gone stale. The diary entry was not covering up any unlawful purpose for which the freezer bags were to be used.
- On 23rd February, from about 16:00 hours, numerous mobile phone calls were exchanged between Dewhurst and Crossley, Ashad Khan’s telephone and Wahab. The calls lasted less than a minute. Late that night, Wahab and Dewhurst were in contact. Wahab’s later explanation for this contact was that it might have been to do with a debt. Cromer’s telephone calls at this time included calls to a man who hired and drove cars to Burnley for him, Sherg.
- On 30th March 1998, two police officers, DC Wade and DC Cooney, saw Wahab in the street. Wahab asked Wade whether they were looking for him in relation to the supply of drugs. He mentioned that two to three kilograms a week of heroin were being supplied on the Stoneyhope area. Wade’s evidence was that Wahab asked if he had heard of “Anton”, and when Wade responded that he heard this nickname, Wahab (who it will be remembered was “Anton”) said that Anton and Freddy were big drug dealers who had made their money, and had stopped trading. Wade believed that Wahab had involved himself in this conversation in order to discover what the police officers were doing, and the extent of their knowledge. Wahab’s account was that the conversation had indeed taken place, but that the police had asked him for Freddy’s whereabouts, and that Wade had sniggered. He added that Wade was cross with him.
- It was common ground that Wahab and Cromer met on 26th May in Burnley. The Crown relied on a number of features relating to this meeting which was said to demonstrate that this was not a simple meeting between men arranging to purchase and provide a supply of heroin for personal use. In the days before the meeting there was telephone traffic which included Wahab asking Khan to ring him, urgently. Cromer’s diary referred to “burn rubber if bank open in morning”, and he asked his mother to withdraw £1,500 from her bank account. Cromer later agreed that “burn rubber” was probably a reference to visiting Burnley. On 26th May itself, Wahab visited his local post office during the morning. A police officer inside the post office heard him say that he would meet the man behind the counter, Khan, at 5 o’clock. He then drove about in a van. He stopped to use a telephone box. Then a car driven by Sherg, with Cromer as a passenger, was seen near the phone box. Thereafter Wahab got into the car. The car and van then drove on a circuitous route to a park. The van was left on one side of the park. Cromer and Wahab were seen to meet up with Crossley, who arrived on his bicycle. Thereafter Wahab left on the back of Crossley’s bicycle and returned to the van on the other side of the park.
- On 30th June Dewhurst was arrested. Significantly, this led to immediate and urgent telephone traffic. One call was said to include an alert to Wahab by Crossley using a phone box near the address in Leeds Road. The importance of that address needs no underlining. Another call was a “frantic” pager message for Khan to ring “Azi emergency”. On the following day Wahab visited Leeds Road himself. He entered by the back door, and spent several minutes there. It was the first and only time he entered that house. He said that his visit there was a simple coincidence, because he needed heroin for his personal use, and certainly his purpose was not to discover what Dewhurst had told the police, nor indeed what the police had discovered. Afterwards a call was received from Khan to Wahab’s mobile which lasted for three minutes.
- Although Wahab did not visit Dewhurst’s house in Leeds Road, towards the end of July, he made four separate visits to the street itself. His case was that he was visiting Dewhurst’s brother in connection with building work.
- On 6th August Dewhurst was arrested again. For about two hours after the arrest, telephone calls were made by Wahab to Khan’s post office, to Crossley’s pager, Asad Khan’s pager, and phone calls were also received by his mobile. Crossley’s pager was telephoned by Wahab after midnight. His explanation for these calls was that he was arranging a personal supply while Crossley still had some drugs, and the late call arose from a need for heroin and a failure to meet up with Crossley earlier. The telephone calls had nothing to do with Dewhurst’s arrest.
- There was a significant entry in Cromer’s diary for 11th August, and a visit by Cromer, as he said, to meet Crossley, when he made a small purchase of heroin for his personal use. He made a number of telephone calls to get hold of Anton (Wahab) and eventually left a message. As he failed to get hold of him, he left a message on 13th August.
- The text included the following observations by Crossley:
- Cromer made an effort to offer an innocent explanation for the language he had used. For example, he said that “unsellable” meant not “street worthy”. He had not been indicating that he had been trying to sell heroin for two days. When he said that nobody would have it, he meant that nobody would accept heroin of such a quality. He wanted Anton to get in touch with him quickly, because Roy had written him off. The essence of his case was that he was really issuing a cry for help rather than making an angry telephone call.
- The jury listened to this recording in full. So did we. The jury would not have had the slightest difficulty in treating it as an irritated telephone call by a business man who had not been supplied with goods of the quality he had expected, and indeed believed himself entitled to expect. It provided graphic evidence of guilt, made the more compelling by his subsequent denial that he had ever left the message at all. It was also relevant to the case against Wahab, that Cromer’s complaint about the quality of the “goods” was being made to him rather than anyone else.
- On 13th August both appellants were arrested. The police forced their way into Cromer’s house. No drugs were found, but the remains of two bag corners were recovered. Cromer said that that represented his personal supply from the morning which he had thrown out of the window.
- Cromer was interviewed. He said that he was not well. He denied any involvement in the use of heroin. He lied in three important respects. First, and perhaps most damning, he distanced himself from the important message to Wahab on 13th August. He said that it was not his voice. He also denied having bought any heroin from Wahab, and further asserted that he had never been to Burnley.
- Wahab, who had been arrested with his long standing girlfriend at their home, was interviewed in the presence of a very experienced solicitor, Mr Dearing, who had previously acted for him, and who had been specifically chosen by the appellant himself. The first interview on 13th August was directed to questions relating to his lifestyle and background, and Wahab answered most of them. A second interview on that day came to an abrupt halt, because the recording equipment broke down. Nothing relevant had been said.
- After the conclusion of the interview Wahab alleged that he had been subjected to improper pressure by one of the interviewing officers, who referred to the members of his family who were in custody as a lever to produce a confession. Among other unpleasantnesses, he was alleged to have said that Wahab’s mother would soon join his sister and his father and his girlfriend in custody, adding that Wahab’s father had had a heart attack. “Believe me – if you see him now – he’s in a state of shock...If you admit to 9oz of heroin” the officer would see to it that the family would be released. If such behaviour had taken place, its seriousness cannot be overestimated. However, after reflecting on a great deal of evidence, the judge wholly rejected the allegations made by Wahab. In view of that finding we shall not return to this conversation in the course of this judgment, save to note that the most important, and graphic, evidence said to bear on the reliability of the appellant’s confession on the basis of the judge’s findings, was false.
- On14th August, a third interview began. The police began to reveal some of the evidence, previously undisclosed, which was available to them. This time, on advice, Wahab largely answered by saying “no comment”. Thereafter a private solicitor/client conversation took place. It lasted some 26 minutes. Wahab then invited his solicitor to see whether he could do a “deal” with the police. The solicitor made a written note, which Wahab signed, which reads:
- In view of the criticisms which were made of Mr Dearing, and his conduct, the appellant waived privilege. That explains how we have come to see this document. So did the judge, who on a voir dire, heard from the appellant himself that after the third interview, he had indeed authorised his solicitor to approach the police to see whether there was any chance that his family might be released if he admitted his guilt. We attach considerable importance to the fact that this initiative was taken by the appellant himself, without any suggestion of an inducement from the interviewing officers, or indeed his own solicitor. In accordance with his client’s express instructions, his solicitor approached the police. The interviewing officers said that they had no authority to conduct negotiations, and a superior officer was brought in to consider the position. He made clear that no promises could be made or guarantees given. The officer’s evidence to the judge was that the situation was still incomplete, but inquiries were ongoing, and at that stage he was not in a position to decide who should be charged. He could only promise to review the evidence. Mr Dearing confirmed that the police never made him any promises. He gave the judge his own interpretation of what he had been told by the police, as communicated to his client. What he did communicate was that if – we emphasise the “if” – if the appellant made admissions, the police would look at the whole picture, and if – again we underline the importance of “if” – the evidence against the other members of the family were “border line”, they would be released.
- The solicitor then left the appellant to think about the situation. According to the appellant’s evidence, one of the interviewing officers again spoke to him through the hatch door of his cell, in language which would, if used, have provided evidence of unfair pressure. As the judge rejected all such suggestions, it does not arise for further consideration, and was not argued before us.
- When the solicitor returned to take the appellant’s instructions, according to the appellant’s own evidence, he told the solicitor that he was going to admit his involvement, and as he put it, his solicitor “broadly agreed”. The judge also found that at this stage, the appellant made admissions to his solicitor, although, as the solicitor confirmed, there had been no promises or inducements from the police. The judge further noted that the appellant’s proof of evidence did not suggest that he was confused by what his solicitor had said to him, or that he had made his confession because he was advised that his family and girlfriend would be released.
- A fourth interview then took place. In the course of this interview Wahab confessed to his involvement in the conspiracy as a middleman, not as a wholesaler or dealer on the street, and definitely not someone “at the top”. The interview had begun with the police asking questions, and an early admission by Wahab, but when the police asked what he wanted to say, his solicitor intervened to point out, “I think if I can prompt him it will get it in a coherent form. First of all the police has asked whether you have been involved in the supply of drugs. Can you say whether you have been involved in the supply of drugs?” To that Wahab answered, “To a certain extent, yes, I have.” The solicitor asked further questions. When he asked whether Wahab was prepared to name those who were “above” him, he said, “Obviously, ‘cos I’m going to prison, I can’t do that, can I? But I’m definitely not at the top.” Wahab said that he knew his father was in custody, but that he knew nothing of his involvement with drugs. He also knew that his sister and girlfriend were in custody, and that all three had handled money for him. The solicitor asked, “Can you tell the police briefly what sort of explanations you’ve given to them for the money that they have handled for you?” and Wahab said that he had told them that he was “selling cars, dealing in properties” and that he was “doing cigarettes”.
- His solicitor gave evidence on the voir dire that he understood that Wahab would be making admissions at this fourth interview, and that the admissions he in fact made accorded with Wahab’s instructions. When cross-examined on the basis of the expert evidence which was subsequently called, although he accepted the criticism of his lack of paperwork, he rejected the remaining criticisms as a counsel of perfection.
- Evidence was also given before the trial judge from another solicitor, as an expert witness, called by the appellant, to demonstrate that the conduct of his first solicitor at the police station fell below the proper standard of professional competence. We shall return to this issue later.
- The evidence of the admissions in the fourth interview, and the record of the earlier three interviews, was admitted by the judge. Unfortunately a transcript of his ruling is not available. The issue was considered and decided before the main trial, and the records have been lost. We have been provided with a note, as we understand it, made by counsel. The judge noted that Mr Hyland QC on behalf of the appellant did not suggest that the solicitor’s advice and actions leading to the confession were in any way improper. However, basing himself on expert evidence, he relied on the cumulative effect of the solicitor’s alleged incompetence. This included inadequate record keeping, insufficient time spent with the client, failing to make any opening statements at the interviews, failing to press the police for further information, failing properly to explain the caution, and failing to take full instructions once it was clear that Wahab contemplated making admissions. It was further contended that if Wahab genuinely believed that his girlfriend and family would be released if he were to make admissions, s76 of the Police and Criminal Evidence Act 1984 would apply.
- After analysing all the criticisms, and the evidence called before him, the judge expressed himself satisfied that Wahab was a “man of intelligence” who was adequately advised about and sufficiently understood the significance of the caution and the legal ramifications of either making “no comment”, or answering some questions and not others. He was further satisfied that whatever the shortcomings of Wahab’s former solicitor’s performance when measured against all the criticisms, as a highly experienced and tactically aware defence solicitor, he “adopted a thought out strategy which he believed to be in the best interests of his client. At each stage the strategy was adequately communicated to and understood by his client and, in the view of the court was justifiable and arguably appropriate...any relevant deficiencies in advice or proper concerns...can be addressed by appropriate jury directions and a fair trial ensured”.
- The judge agreed with the submission of counsel for the Crown that the solicitor had “properly outlined a number of factors to be considered...in making his decision...the possible help to the family if he confessed was only one of the factors.” In the absence of a full transcript, it is difficult to be certain precisely what this means, but Mr Shepherd, on behalf of Wahab, relied on this last clause to support his contention that, before he made his confession, Wahab had in mind that this would be a possible help to the members of his family who were still in police custody. On analysis it seems clear that the judge was doing no more than reflecting the evidence given in cross-examination by Wahab’s solicitor who disagreed with the suggestion that Wahab’s primary concern was his girlfriend and family, adding, “I know he was concerned about a number of things.”
- It was contended before us that even if Wahab’s account of pressure exerted by the police officers was rejected, the evidence of his confession was wrongly admitted, and that the judge should have concluded, in accordance with section 76 of the Police and Criminal Evidence Act 1984, that the confession was unreliable, and its exclusion mandatory. The argument that the evidence should have been excluded in any event in the exercise of the judge’s discretion under s78 and s82 of the 1984 Act was rejected by the judge. An application for permission to appeal against this further decision was refused by the single judge and the full court. This point was unarguable. As an exercise of judicial discretion, after an analysis of the various relevant considerations, the judge reached a balanced conclusion with which this court should not interfere.
- We must however deal with the submission based on s76(2), the relevant part of which provides:
- The answers given by the appellant during the course of the fourth interview amounted to confessions. No one suggested that his answers resulted from oppression. The issue was reliability. Normally that question involves a decision whether the police, or investigating authorities, have “said or done” anything likely to make the confession unreliable. However, significantly in view of the common law principles which formerly guided this issue, the statutory language is not confined to the actions (or omissions) or words of persons “in authority”.
- Given her precarious mental state, we can quite understand why the defendant’s confession in R v Harvey (1988)CLR241 was held to be inadmissible. Although the investigating police officers had said and done nothing relevant, the confession to murder made to the police in the defendant’s presence by her lover, and the realistic possibility that in her confused sense mental state she might realistically have decided, “childlike to protect her lover”, made her subsequent confession unreliable. Our attention was drawn to R v Barry (1992)95CAR384. We agree that the reference in the judgment to things said and done “by the police” was not intended to restrict the ambit of s76(2). Rather it reflected the fact that in Barry everything relevant said and done emanated from the police.
- Mr Shepherd focused on the decision in Barry arguing by analogy, that Barry’s anxiety to be granted bail, and the consequent exclusion of his confession in this court, should be equated with Wahab’s anxiety that members of his family should be released. In our view it is inappropriate for the question of reliability under s76(2), when it arises, to be decided by reference, directly or by analogy, to circumstances which have arisen and been decided in different appeals. The question is always fact specific, and in particular, defendant specific: hence the express references in s76 to the “accused person” and things said and done at the time which might make the confession “by him” unreliable. The focus must be concentrated on the reliability of the confession made by the individual defendant, given the circumstances as they existed when the confession was made. Thus we doubt whether the decision in Harvey would have been the same if the defendant herself had not been of low intelligence and suffering from psychopathic disorder which may have served to produce her possible “child-like” reaction to what she heard. Equally, if the members of the appellant’s family and his girlfriend had been wrongly arrested in order to provide the police with a weapon to wield against Wahab, which was then deployed in the way he had alleged, we very much doubt whether the judge’s decision in this case would have been the same.
- We have considered R v Goldenberg (1998)88CAR285, which suggests that the phrase in s76(2), “anything said or done” does not extend to things said and done by the defendant himself. Mr Shepherd suggested that this decision did not assist. We disagree. In Goldenberg one issue said to affect the reliability issue was the defendant’s anxiety to obtain bail for himself, or to obtain credit for helping the police. It was held that s76(2) was concerned with something extraneous to the person making the confession. In the present case, when the appellant instructed his solicitor to see whether some convenient arrangement could be procured with the police, he was uninfluenced by anything said and done by anyone else. Everything thereafter originated from the appellant himself.
- Advice properly given to the defendant by his solicitor does not normally provide a basis for excluding a subsequent confession under s76(2). One of the duties of a legal advisor, whether at a police station, or indeed at a pre-trial conference, or during the trial itself, is to give the client realistic advice. That emphatically does not mean that the advice must be directed to “getting the client off”, or simply making life difficult for the prosecution. The advice may, and sometimes ought to be robust, sensibly considering the advantages which the client may derive from evidence of remorse and a realistic acceptance of guilt, or the corresponding disadvantages of participating in a “no comment” interview. The exercise of the professional judgment in circumstances like these is often very difficult, often dependent on less than precise instructions from the defendant. We do not, of course, rule out the possibility that a particularly vulnerable defendant (for example, Harvey) may make an unreliable confession after receiving advice from a solicitor, but such a conclusion would reflect the defendant’s unfortunate mental weakness rather than any adverse comment on the solicitor’s advice. The efforts of a solicitor acting for two clients to act in the best interests of one – seeking, for example, to persuade one client to make a confession to enable some advantage to be extracted for the other – or the advice of a solicitor at a police station, purporting to act in his client’s best interests, but party to a corrupt understanding with the police to persuade the client to confess, would be tainted advice. For confessions made in such cases, s78 would provide an ample basis for exclusion, notwithstanding that the reliability of the confession was not in doubt.
- Nothing like that was suggested in this case. Generalised attacks were made on the solicitor’s competence, not his integrity. We must highlight what we regard as the unnecessary and inappropriate deployment of expert evidence from one solicitor, criticising the other. As our earlier analysis demonstrates, the competence of the appellant’s solicitors did not have any influence on his decision, for his own reasons, to make the confession that he did. The cross-examination of the first solicitor, and the evidence of the expert, were not relevant to the reliability of the appellant’s confession. In any event the criticisms made on the voir dire, if relevant, should have been left to the trial judge, with the assistance of counsel, drawing his attention to any relevant legal principles. The judge did not need expert legal evidence to enable him to form a view about the reliability, or otherwise, of the confession: nor did the jury.
- In deference to Mr Shepherd’s submission, we should also underline that unless it affects its reliability, s76(2) is not directed towards the “concerns” or motives of the person making the confession,. This view was clearly expressed in R v Rennie (1982) 74CAR207, decided before the 1984 Act came into force, in a passage in the judgment of Lord Lane CJ treated by this court in R v Crampton (1991) 92CAR369, as applicable after that date as before. We simply highlight the illumination provided by Lord Lane into the mixed motives which may lead a defendant to make a confession. He identified “a hope that an early admission may lead to an earlier release or a lighter sentence”, and continued:
- We have examined Mr Shepherd’s submissions in the light of the facts found by the judge. We can see no reason to interfere with his decision. In summary, Wahab was an intelligent man, who instructed his solicitor to approach the police to see if any arrangement, consistent with his own wishes might be made. The police acted properly. The solicitor accurately conveyed the police response to Mr Wahab. Mr Wahab knew precisely what he was doing when he made his confession. Even if his mind was influenced by the possibility that a confession might lead to the release from police custody of members of his family, that was one factor among several which served to explain his decision to confess. The judge held, and we agree, that none of these factors, taken individually or cumulatively, had any adverse effect on the reliability of his confession.
- Accordingly, this ground of appeal is rejected.
- As part of its case, the Crown produced evidence against both appellants, encapsulated in the concept of “lifestyle”. From January 1994 until his arrest Wahab was continuously in receipt of state benefits. Cromer had received income support for two months in 1996, and then continuously from April 1997 until his arrest.
- The Crown showed that Wahab had bought and sold a number of premises in the north of England, and that he was the owner of a number of them. His bank statements, credit slips, and so on, were analysed from January 1996. There was a substantial turnover of cash. Wahab deposited nearly £8,000 in cash in his own account. Members of his family had deposited nearly £95,000 in cash, and his girlfriend a further £20,000 in cash. The defence challenged the accounting methods. In due course evidence was given about the way in which Asian families might, perfectly consistently with their culture, involve themselves in very complex webs of debts which did not appear on paper. A solicitor who undertook conveyancing work for Asian families explained that assets were regarded as family assets, and although nothing was put into writing, it was common for the whole family to be involved. Wahab himself said that the cash deposits made into his own, his girlfriend’s, and his family’s accounts were the result of the proceeds of rents, and a housing benefit scam. He also asserted that he had made considerable profits from dealings in cars and fake jeans.
- Cromer’s mother had two accounts, one for her own wages and everyday expenses, and a second account into which, according to the Crown, from early 1996 until 27th August 1998 when the account closed, approximately £84,000 had been credited, £55,000 of which took the form of cash deposits. It was accepted that this account was for all effective purposes an account operated by Cromer himself.
- His case was that he was a regular gambler, and that when he won, and he won much more often than he lost, his mother persuaded him to allow her to bank it for him. He produced documents to show that he had indeed been successful, and, for example, that he had been paid nearly £14,000 in cash on a successful bet in April 1998. Indeed, in 1998 he could, somewhat surprisingly, demonstrate that he had made a profit on gambling. Before that date he claimed to have done so, but the passage of time meant that he was unable positively to prove it.
- The Crown’s case against Wahab was that his explanations for the substantial cash which he had handled were untrue. It represented, and served to support the contention, that he was a major dealer in drugs. As against Cromer, the case was not so much that the cash receipts demonstrated a profit, but rather that, given that he was on state benefits, Cromer could only risk as much as he did when gambling because his income from drug dealing was guaranteed.
- This brings us conveniently to the main submission made on Cromer’s behalf. In summary, while it was accepted that evidence of lifestyle could be admissible, there was no evidence linking Cromer with the conspiracy before early 1998. Therefore evidence of his access to cash in 1996 and 1997 was inadmissible. Moreover, in the summing up, the judge should have expressly directed the jury to ignore that evidence.
- The Crown accepted there was no evidence to link Cromer to the conspiracy before early 1998. Mr Howard Betham QC contended that the admission of the evidence relating to 1996 and 1997 benefited rather than disadvantaged the defence. If the defence could establish that gambling had produced profits in 1998, as it did, then the jury’s suspicion of this explanation for cash profits would have been allayed. We understand this submission, but do not go as far with it as Mr Bentham would suggest. The evidence of gambling success might well have dissipated suspicions about Cromer’s cash dealings in 1996 and 1997, but it was not a positive advantage to Cromer for it to be deployed in the first place. Mr Bentham also argued, and with greater force, that the evidence that Cromer had access to substantial quantities of cash before joining the conspiracy was relevant to explain how he, otherwise apparently desperately short of cash, could find the wherewithal to become involved as a substantial participant in this major drug conspiracy in Burnley, suddenly in 1998, and without any apparent resources. On this basis, the fact that he was able to offer an explanation which the jury might well have accepted for his apparent affluence in 1996 and 1997 did not affect the admissibility of the evidence, but would rather serve to reduce the weight which the jury might attach to it
- We agree. When summing up, the judge expressly directed the jury in the context of the “possession or control of the money”, that before attaching weight to it, they had to be sure that they could “safely reject any explanations given by the defendant that this had nothing to do with the proceeds of drug dealing”. This direction was clear. Many judges might well have added that in relation to Cromer’s case, particular caution was needed before any weight could be attached to the pre-1998 evidence on this issue, and indeed that, save as an indication that Cromer could, if he so wished, have afforded to involve himself in this conspiracy, no weight should be attached to it. However, the directions did emphasise that unless they were sure that they could safely reject Cromer’s explanations, then the jury should disregard this “aspect” of the evidence “altogether”. This was a sufficient direction, and would, in this particular case, have been sufficient too if, contrary to our conclusion, the evidence of Cromer’s cash dealings in 1996 and 1997 should have been excluded by the judge.
- The appellants both gave evidence. We have sufficiently indicated the parts of their evidence which are relevant for consideration in this appeal.
- The remaining ground of appeal on which permission to appeal was given concerns the argument that the judge’s summing up on the inferences to be drawn from circumstantial evidence was inadequate. We have studied it. It does not coincide, word for word, or even phrase for phrase, with the suggested “Specimen Direction” provided by the Judicial Studies Board. That is not fatal. The directions were sufficient to bring the crucial issues clearly to the jury’s attention. In particular, they fully explained the risks of guilt by association, and the dangers of speculation and guesswork. In truth, as the judge was to observe in his sentencing remarks, this was an overwhelming case against each appellant. Unless the jury concluded that an individual appellant’s evidence was or might be credible, the inference of guilt was overwhelming.
- We have examined the grounds of appeal on which permission to appeal was refused by the single judge, and then again by the full Court. We see no merit in any of them, and no purpose in adding to the reasons given by the single judge.
- Both these appeals are accordingly dismissed.
- LORD JUSTICE JUDGE: We have dismissed appeals against conviction. The judgment summarises the nature of the conspiracy of which these two applicants (as they now are) were convicted and their respective roles in the conspiracy.
- The applications for permission to appeal against sentence have been supported by oral argument from counsel for each applicant. We are grateful to them for their submissions and we have taken them into account. We have also had the advantage of detailed sentencing remarks from the trial judge, following a lengthy trial lasting some six working weeks or so, of a complicated conspiracy with different tentacles but all related to the business of supplying hard drugs in what we have described as a “sophisticated retail operation”. His analysis was meticulous.
- We just briefly, without doing justice to the care which the judge took in reflecting on the sentence, record that in relation to the conspiracy as a whole the judge referred to the retail shop operation, adding that it was clear “that substantial amounts of heroin were being supplied on a larger bulk basis”. He then reflected on Wahab's position expressing himself satisfied that “so far as running that on a day to day basis is concerned you were involved in a managerial and supervisory role particularly ensuring the provision of stock in trade for that operation. It is clear though that you were a prime mover in the wider activities and whatever role the role of others, whatever title is given, whatever title is given, you were a major and important player in that operation”.
- In relation to Cromer, having carefully noted that Cromer's proved involvement in this conspiracy came late and was much more limited in time, he reflected on Cromer's substantial previous convictions, adding that the period when Cromer was involved was “a busy one” and the evidence before the court involved substantial dealings in heroin. The judge then reflected on the fact that Cromer had come from the east coast into Lancashire to buy the heroin which formed part of his operation and reflected on the voice mail message to which we referred in our judgment which demonstrated that Cromer was indeed supplying others.
- Given this analysis, we then acknowledge the care with which the judge weighed the extent and the period of the involvement of each of these appellants in the criminal enterprise, his role in it, his previous character, its ramifications and its consequences as best they could be judged by the end of the trial. And he did that in the context not only of these two applicants but also the others who were involved and their respective pleas. There were in each case a number of different factors in play which required consideration. Then in the case of each individual the judge had to stand back and balance precisely where all this put each of the defendants then being sentenced in the criminal enterprise.
- After the trial he was in a unique position in which to make these judgments. We have to reflect on this question: “Given all the facts as we know them, and the conclusions that the judge reached about the roles played by each appellant, is there any reason for concluding that the sentences that he passed on each applicant were either wrong in principle or manifestly excessive?” Despite the careful arguments from counsel which we have considered, we can see no basis on which this court could reach the conclusion that the sentences were either wrong in principle or manifestly excessive. We therefore shall dismiss these applications for permission to appeal against sentence. We add that in reaching that conclusion we have taken note of the particular feature of Wahab's personal circumstances which have been drawn to our attention this morning.
2000/07250/W1 |
Strand, London, WC2A 2LL | ||
B e f o r e :
MR JUSTICE ASTILL
and
HIS HONOUR JUDGE COLSTON QC
(sitting as a Judge in the Court of Appeal Criminal Division)
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| R | ||
| v | ||
| WAHAB and CROMER |
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Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Anthony Watson appeared on behalf of Cromer
Howard Bentham QC appeared on behalf of the Respondent
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AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Judge :
“You’ve got to get in touch .... that shit Roe’s given me is unsellable. I can’t do owt with that. I’ve tried for a couple of days...it’s...full of glucose. He’s just took the piss...I don’t know who’s done the rip...but its nothing like usual...he’s mixed it with some really bad shit, so it reeks and sets on fire, nobody’ll have it. I’ve tried for two days. Sort it out...because I’m needing it.”
“following Interview in view of the evidence which the police had accumulated we are concerned that (1) the police can secure a conviction (2) in view of the sums involved a substantial prison sentence is inevitable (3) my family are in custody and in danger of being involved when they have not been (knowingly) (4) the discounts available for early admissions it is appropriate to discuss certain admissions with the police”
“If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained –
.........
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof, the court shall not allow the confession to be given in evidence against him except insofar the prosecution proves...that the confession (notwithstanding that it may be true) was not obtained as aforesaid”
“If it were the law that the mere presence of such a motive, even if prompted by something said or done by a person in authority, leads inexorably to the exclusion of a confession, nearly every confession would be registered inadmissible. That is not the law...commonly the presence of such a hope, will in part at least, owe its origin to something said or done by such a person. There can be few prisoners who are being firmly but fairly questioned in a police station to whom it does not occur that they might be able to bring both their interrogation and their detention to an earlier end by confession.”
Strand, London, WC2A 2LL | ||
190Fleet Street, London EC4A 2AG