England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 October 2002

The Hon Mr Justice Colman:

Hutchings

On 6 November 2000 in the Crown Court at Wood Green before His Hon Judge Mervin Roberts, the applicant, Hutchings, was convicted on the following counts and on 9 November 2000 he was sentenced as we set out below.

Count 1 being mainly concerned in attempting to evade the prohibition or restriction on importation of a Class B controlled drug, 8 years imprisonment.

Count 2 being mainly concerned in attempting to evade the prohibition or restriction on importation of a Class B controlled drug, 8 years imprisonment concurrent.

Count 3, inducing the commission of a drug offence outside the United Kingdom, 6 years imprisonment concurrent.

Count 4, inducing the commission of a drug offence outside the United Kingdom, 6 years imprisonment concurrent.

The total sentence was therefore 8 years imprisonment.

Cummings

On 7 November 2000 in the Crown Court at Wood Green before His Hon Judge Mervin Roberts, the applicant, Cummings was convicted as follows by a majority of 11:1 on all counts and on the 9 November 2000 he was sentenced as we set below.

Count 1 being mainly concerned in attempting to evade the prohibition or restriction on importation of a Class B controlled drug, 8 years imprisonment.

Count 2 being mainly concerned in attempting to evade the prohibition or restriction on importation of a Class B controlled drug, 8 years imprisonment concurrent.

Count 3, inducing the commission of a drug offence outside the United Kingdom, 6 years imprisonment concurrent.

Count 4, inducing the commission of a drug offence outside the United Kingdom, 6 years imprisonment concurrent.

The applicant, Hutchings now renews his application for leave to appeal against conviction and sentence and for legal aid following refusal by the single judge.

The applicant, Cummings also renews his application for leave to appeal against conviction and for legal aid following refusal by the single judge.

There were five other co-defendants. These were:-

Ian Joseph Eaves who was convicted on counts, 1, 2, 3 and 4 and sentenced to 42 months imprisonment concurrent on counts 1 and 2 and 3 years imprisonment concurrent on counts 3 and 4;

Aiden Kearns Marshall who was convicted on counts 1 and 2 but found not guilty on counts 3 and 4. He was sentenced to 2 years imprisonment concurrent on counts 1 and 2;

Robert George Cummings, who was the father of the applicant, Mark Cummings, was found not guilty on all counts by direction of the trial judge;

William Albert Samuels changed his plea to guilty on all counts before a jury was sworn and he was sentenced to 5 years imprisonment concurrent on counts 1 and 2 and 42 months imprisonment concurrent on counts 3 and 4.

Robert Edward Green was not convicted, the jury being unable to agree a verdict. Two other men, Dilbagh Singh and Surinder Singh Sehmbi were alleged to have acted as couriers in respect of the drugs in question. They were arrested in Belgium and were dealt with under the relevant provisions of Belgian law by the Belgian courts. Mr Singh and Mr Sehmbi received respectively sentences of 1 year and 2 years imprisonment, of which 1 year was suspended.

The facts were as follows:

In the early hours of 7 May 1999 a British registered Toyota van, H442 PNO, to which we refer as “the Toyota”, was stopped by Belgian police officers at a petrol station at Cortright in Belgium. In it were Singh and Sehmbi. It was loaded with 327 kilos of cannabis resin and 130 kilos of cannabis with a street value of £1,300,000. In summary, the drugs had been loaded onto the Toyota at Breda in Holland during the evening of 6 May 1999 and driven from there to Belgium and then on to France, the Toyota then having returned to Belgium where it was stopped and the occupants were arrested. The prosecution case was that the applicants and the other defendants had intended to bring the drugs found in the Toyota into this country. The prosecution contended that the role of the applicant, Cummings, and of the co-defendant, Samuels, was organisational, whereas the role of the applicant, Hutchings, was partly organisational and partly to oversee the transfer of the drugs in Breda. The roles of the co-defendants, Eaves and Marshall were said to be acting as minders to the couriers, Singh and Sehmbi. It was also said that the co-defendants, Green and Robert Cummings were involved.

Towards the end of April 1999 the applicant, Hutchings, Samuels, Green and Singh travelled to Breda before returning to this country. Singh had travelled with the Toyota. All those concerned spent one night in Breda and during that period two mobile phones, the last numbers of which were 660 and 215 were used to contact another mobile phone, the last numbers of which were 214.

On 4 May 1999 there was a call to a mobile telephone used by the applicant, Hutchings, from the 214 mobile phone. Shortly after that, the applicant, Hutchings hired a white Ford transit van, S775 JLO to which we refer as “the transit van”. On 5 May 1999 the applicant, Hutchings and Robert Cummings took a ferry to Calais, taking with them the transit van. Green travelled on the same ferry as a foot passenger. The three men associated together whilst they were on the ferry. The evidence suggested that Green did not disembark as a foot passenger. During the evening of the following day, 6 May 1999 the transit van was seen parked outside the same hotel in Breda as that which Hutchings and Green had spent a night the previous month as already described. On the same day Singh and Sehmbi travelled to Holland with the Toyota and Eaves and Marshall travelled on the same ferry with a Sierra car, to which we refer as “the Sierra car”. Both the Toyota and the Sierra car were observed in close proximity at a service station on the way to Breda.

Evidence was given of events in Breda during and immediately after the evening of 6 May 1999. Dutch police officers had carried out a surveillance exercise and one such officer gave evidence that the transit van was seen parked in the vicinity of the hotel in Breda at which the applicant, Hutchings and Green had spent a night the previous month. A Dutch police officer gave evidence that he had seen the applicant, Hutchings alighting from and walking away from a Dutch registered Mercedes van. That officer made a video recording shortly afterwards of the man he said he had seen alighting from the Mercedes van. Hutchings denied he had been in the Mercedes van although accepted that he was the person shown on the video. Another Dutch police officer gave evidence that he observed a man whom he identified as the applicant, Hutchings, moving the Mercedes van near to another Fiat van. Hutchings denied this observation. The Sierra car was seen to arrive closely followed by the Toyota. The applicant, Hutchings, was seen to open the door of the Fiat van with the key and take two boxes out which he then placed in the Toyota. The Toyota was then seen to drive off but returned later whereupon the applicant was seen in the vicinity when the Toyota returned. More boxes were then loaded into the Toyota from the Fiat van. It could not be seen who was moving the boxes. The Toyota van and the Fiat were then seen to drive away. The Toyota van and the Sierra car were observed travelling in close proximity in the direction of Antwerp. Both vehicles stopped at the same service station. Subsequently, having travelled together with the Toyota van, the Sierra overtook it and drove off separately leaving the Toyota to continue into France via Belgium. While in France, the Toyota drove around the town of Tourcoing and appeared to be lost. It was then driven back into Belgium where the Belgian police took the occupants of the Toyota, that is Singh and Sehmbi, into custody and took possession of the drugs onboard. In the Toyota were found several mobile phones including one whose number ended in 669. Evidence was adduced that that phone had been in contact frequently with another mobile phone whose number ended in 407. It was said by the Crown that the latter phone had been with Eaves and Marshall in the Sierra car. The applicant, Hutchings, together with Robert Cummings and Green returned to the United Kingdom on 7 May 1999 by means of the ferry from Calais, Hutchings had the transit van with him. Green again registered on the ferry as a foot passenger, they were all arrested on their arrival in this country.

The prosecution case against the applicant, Mark Cummings was as follows:-

At about 1.15 am on 7 May 1999, Cummings was seen to leave his home address by himself and drive off in his Mercedes car with Samuels. He drove to Queen Elizabeth Bridge via Thurrock Services then turned back to re-cross the bridge. At this point he was stopped and arrested at 2.06 am. When the car was stopped the mobile phone ending in 214 was found in the car, although its exact location there was disputed. The arresting officer said it was fitted into or clipped into a holder just by the steering wheel. Also found in the car was a further mobile phone belonging to Samuels. The Crown contended that the applicant, Cummings, used the 214 mobile phone. There was undisputed evidence that the 214 mobile phone had been used to make or receive telephone calls to and from mobile phones used by or alleged to be used by the applicant, Hutchings, and other co-defendants in April and May, in particular, that phone was used to contact the applicant, Hutchings, shortly before he hired the transit van. There was evidence of a considerable number of communications between mobile phone 214 and a Dutch registered mobile phone, 174. The latter phone was in the vicinity of the co-defendants while they were abroad. Some of these communications were at times which were close to the drug transaction. The number of the phone 174 was written on a piece of paper which was found at the home of the applicant, Cummings. There was evidence that mobile phones 660 and 215 which had been used to ring the 214 phone at the time of the April trip to Breda were used by Samuels.

A witness, Mr Hill of HM Customs and Excise, gave evidence that when searching the applicant, Cummings, after his arrest, he found a business card in the name of one Michael Palmer and a number of pieces of paper containing telephone numbers. Mr Hill handed these documents to a Mr Lyman of HM Customs and Excise, who was then acting as the exhibits officer. Mr Lyman did not label these papers in any way and could not recall having received them. However, Mr Hill identified in court documents which he believed were the same as those that were found on the applicant, Cummings. These pieces of paper listed telephone numbers for some of the co-defendants including Samuels. The learned trial judge directed the jury that there was no way of being able to establish that the four pieces of paper and the business card, which had been shown to Mr Hill, were the same documents as those which had been taken from the wallet belonging to the applicant, Cummings.

When interviewed by Customs Officers, both Hutchings and the applicant, Cummings and Green made no comment and Robert Cummings said that he had travelled to France with Hutchings simply to purchase drink and had shared the cost of hiring the transit van with Hutchings.

When interviewed both Eaves and Marshall said that they had gone to look for work. They also said that they went to look for girls. Originally they stated that they had not gone any further than Antwerp but subsequently accepted that this was a lie.

Neither of the applicants gave evidence. Hutchings accepted that he had hired the transit van and travelled to Breda in both April and May 1999.

In the course of the trial evidence was led of a series of observations which had been undertaken by Dutch police officers at the request of HM Customs and Excise. We have already referred to these observations in relation to various of the defendants including the applicant, Hutchings. Following the normal Dutch practice, the various officers concerned in the surveillance exercise had reported their observations to a collating officer or logging officer who, at a later date, compiled a summary of their reports into a composite document called, the “Process Verbaal”. This document would have been admissible as evidence in criminal proceedings under Dutch law. HM Customs and Excise had specifically requested the Dutch authorities responsible for the surveillance exercise that the officers concerned should retain their original notes and also that the tapes of the original radioed reports which were used for the purposes of compiling the Process Verbaal should be preserved. However, in spite of these requests, the Dutch police had followed their normal practice and had disposed of this material at some stage following the drawing up of the Process Verbaal.

Counsel for the applicant, Hutchings supported by counsel for the other defendants objected to the admission of the observation evidence. This application was on two bases. Firstly, it was said that the application should be excluded under section 78 of the Police and Criminal Evidence Act because it would be unfair to allow such evidence to be adduced in the absence of the comtemporaneous notes or recordings. Secondly, it was said that the proceedings should be stayed as an abuse of process because of the destruction of the notes which, it was submitted was a serious default on the part of the Dutch authorities. It was not alleged that they had acted in bad faith but it was not conceded that they had acted in good faith. The learned trial judge rejected this application. Having observed that the Dutch practice for such surveillance exercises was for all the observations of the different surveillance officers to be compiled by one officer in an official report, the Process Verbaal, and that that would be signed by the officers who made the actual observations which had been done in this case, he recognised that, as was common ground, the Dutch officers had been formally asked by Commission Rogatoire to retain the original material but had failed to do so.

The learned trial judge held that the decision of the Court of Appeal, Criminal Division, in the case of R v. Sekon in 1987 was inapplicable: before signing the Process Verbaal in the present case the observing officers had access to all their original notes which had not yet been destroyed and they approved the contents of the Process Verbaal at a time when matters were relatively fresh in their memory. In reaching his conclusion, the learned judge had regard to the defence submission that the defence had been deprived of material which might have enabled them to attack the accuracy and veracity of the observations as recorded in the Process Verbaal. He distinguished the Canadian decision in Carosella (1997) 2 BHRC23 on the grounds that in the present case the contents of the original materials had already been transposed onto the Process Verbaal at the time when that material had been destroyed and, provided the logging officer had done his job properly, the introduction of the Dutch officer’s evidence would not be so unfair that it could not be justified within section 78.

As to the abuse of process, the learned trial judge observed that it was accepted on behalf of the applicant, Hutchings that there would have to be either an element of bad faith or, at least some serious fault on the part of the police or prosecution authorities involved. The destruction of the tapes and original notes by the Dutch officers, although in the face of the Commission Ragotoire did not amount to bad faith or serious fault. Despite what they had been asked to do, the Dutch officers simply saw no reason to change what was their normal procedure and the procedure which apparently satisfied the competent prosecuting authority in their own country. It would be inappropriate to characterise that conduct as bad faith or serious fault. In any event, the officers could be cross-examined on the circumstances in which the tapes and other documents came to be destroyed.

At the conclusion of the prosecution case submissions of no case to answer were made on behalf of all the defendants. The learned trial judge concluded that there was no case to answer in the case of Robert Cummings because although there was evidence that he had travelled to the Continent with the applicant Hutchings and had also come back from the Continent with him, the evidence that he had gone on to Breda was tenuous. However, the learned trial judge did hold that there was sufficient evidence against the other defendants including the two applicants to go to the jury.

As to Hutchings, the substance of the submissions of no case on counts 1 and 2 was that the conduct of the applicant as alleged did not go as far as the completion of the offences charged, namely, the attempted importation of cannabis resin and herbal cannibis respectively. In substance, it was submitted that in as much as the Crown’s case involved the allegation that the drugs were not to be imported in the Toyota but were to be transferred to some other vehicle and, that the whole enterprise was abandoned before that could be done, the point had not been reached when an attempt had been completed, with regard to the applicable principles laid down by Lord Diplock in Stonehouse (1978) AC 55 at p68, in Gullefer (1990) 91 CR. APP. R 356N and the unreported decision of this Court in Quadir (unrep 1996/2311/X4). It was submitted that, at the very least, the importing vehicle should have arrived within the area of the ferry terminal at Calais. The learned trial judge rejected this submission, holding that there was sufficient evidence on which a jury properly directed could find that acts more than preparatory to the defence had been committed.

As to the submission of no case in relation to counts 3 and 4, the learned trial judge ruled in relation to Hutchings that there was evidence that he had hired and travelled in the Toyota and there was further the direct observation evidence against him of his assisting in the transfer of drugs from one vehicle to the other. There was therefore enough evidence, if accepted by the jury, to support the case that Hutchings had assisted the operation by what he had done in England.

As for Cummings, the learned trial judge held that there was enough evidence to amount to an attempt by what he was alleged to have done in England. His acts were more than merely preparatory to the offence intended to be committed. With regard to counts 3 and 4 the learned trial judge, while recognising that the evidence against Cummings relied heavily on the use of telephones, concluded that there was enough evidence in relation to the telephones to make good a case of assistance in the offences of importation.

Following the discharge of Mr Robert Cummings, an application was made on behalf of the applicant, Cummings to discharge the jury.

This was upon two bases. They related to the applicant, Cummings alone. The first basis was in relation to the Hill documents, that is to say, the pieces of paper alleged to have been found in the applicant’s wallet shortly after his arrest. It was submitted that there was a fatal lack of continuity as to the provenance of that exhibit and that, had that lack of evidence as to its provenance, been clear at the beginning of the trial, the defence would have argued that it should not have been admitted in the first place and should have been excluded by the learned trial judge. The inadmissible evidence as to this exhibit should not have gone before the jury and the fact that it had done so and had been relied upon heavily by the Crown in proving that the mobile telephone found in the car driven by the applicant belonged to him rendered the trial so unfair that the applicant was prejudiced in a manner incapable of cure. The basis of the Crown’s case against Cummings was that, he indeed had the ownership or, at least the exclusive possession, of mobile phone 214. As already indicated, that which connected mobile phone 214 and therefore, if he owned it or had exclusive possession of it, the applicant, Cummings, to the exercise in Breda was the list of telephone numbers found on the pieces of paper taken from Cummings’s wallet and referred to as Hill 0004 which showed the telephone numbers to which calls had been made from mobile phone 214. The learned trial judge rejected the application to discharge the jury on this ground; he ruled that the exhibit Hill 0004 was indeed admissible on the basis that if the mobile phone 214 belonged to the applicant then, by virtue of the fact that the telephone could be shown to have called the majority of the numbers written on the exhibit, then the pieces of paper comprising that exhibit, must also belong to the applicant.

The second basis upon which the applicant, Cummings submitted that the jury should be discharged as far as he was concerned, was the learned trial judge’s ruling that there was no case to answer for his father, Robert Cummings. The prosecution had relied upon the fact that Robert Cummings was one of those travelling to the Continent and that he went to Breda. It was submitted that the fact that the defendant’s father was one of the party led by the applicant, Cummings, as opened to the jury by counsel for the Crown, would undoubtedly were influenced the jury upon in determining the central issue in the applicant’s case, namely, whether the mobile phone 214 found in his car, which had telephoned numbers which were in the cell-site vicinity of those in and around Breda, did indeed belong to him or was at least in his exclusive possession. It was submitted to the learned trial judge that once he had ruled that Robert Cummings should be acquitted, this link between those in Breda and the applicant necessarily disappeared from the case but, by that time, the damage had already been done and the jury had associated the applicant, Cummings with those who had gone in the party to Breda and, in particular, his father. It was submitted that it was too late to cure this situation merely by direction to the jury.

A further ground upon which it was submitted that the jury ought to have been discharged, so far as the applicant, Cummings was concerned was that there had gone before the jury admissions to the effect that his father, Robert Cummmings, had a number of previous convictions, including offences of dishonesty, the last one of which was in September 1976 and further, that there were no drug related convictions. Upon application by counsel for Robert Cummings that he should be treated as having no previous relevant convictions, for the purposes of cross-examination, objection was made, on behalf of both the applicant, Cummings and the applicant, Hutchings that in the absence of any formula for reference to the character of those defendants, the jury would be bound to infer not only that they were men with previous convictions but that these would involve convictions in recent years and more particularly for offences relating to drugs. This would be particularly so having regard to the fact that the applicant, Cummings was the son of one of the other defendants. The trial judge rejected this submission on the basis that the interest of the other defendants outweighed the unfairness that might arise in relation to the applicant and to Hutchings. The trial judge, although accepting that a jury might be likely in those circumstances to draw an adverse inference against the applicant, nonetheless refused to discharge the jury.

During the course of his summing up, when dealing with the evidence relating to the applicant Cummings, the learned trial judge stated that there was a “lack of continuity in the evidence concerning exhibit Hill 0004.” He directed the jury that it could not be inferred that the documents comprising Hill 0004 were those pieces of paper and business card which had been removed from Cummings’s wallet. After their retirement, the jury asked to see the original of exhibit Hill 0004. However, the Crown had omitted formally to exhibit the original documents when leading the evidence. The learned trial judge subsequently called a meeting with counsel in court in which he expressed his concern about that exhibit. There then took place a discussion as to the evidential significance of Hill 0004. In the course of that discussion counsel for the Crown argued that exhibit Hill 0004 remained admissible because, whoever was the owner of the telephone 214 was, because of the number of calls made by that telephone to the numbers written on the documents comprising the exhibits, the owner of the exhibit itself. The Crown’s position was, apparently, as stated by counsel, that the jury had other evidence from which it could conclude that the phone 214 belonged to the applicant, Cummings. At the conclusion of these further discussions, the learned trial judge declined to interfere with his earlier rulings and, in particularly with his ruling that the jury should not be discharged, so far as Mark Cummings was concerned.

Hutchings: Failure to exclude the Dutch observation evidence.

It is submitted that the learned trial judge wrongly exercised discretion under section 78 of the Police and Criminal Evidence Act by not excluding the Dutch observation evidence contained in the Process Verbaal, as described earlier in this judgment. The substance of the submission advanced on this renewed application by Mr Paul Mendelle QC is that the learned trial judge made an impermissible assumption in the course of the exercise of his discretion. In particular, in the following passage, he said this:

“I would merely observe that, so far as the procedure is concerned, provided the loggist – and here in this case was C. 002 from whom I have heard – does his job properly, and correctly enters the various notes that he has got, from his tapes and from any written material, into the computer, there can be very little room for error”.

Again, in distinguishing the Canadian decision Carosela, supra, the learned trial judge said this:

“This is quite different from here where the notes and tapes have not disappeared altogether from the face of the earth because the material from them – provided as I have said the officer has done his job properly – has been transferred on to the Process Verbaal”.

It was submitted that the learned trial judge had not properly directed himself in respect of the submission advanced on behalf of the defence, in as much as he had failed to appreciate that the substance of the unfairness involved in admitting the Dutch police evidence was the inability of the defence to test the accuracy of the Process Verbaal by reference to the missing tape and other unavailable material.

Curiously, the learned trial judge recognised the absence of the original material in a passage later in his judgment when he observed that in the absence of the original material, the Dutch police officers, when cross-examined as to inaccuracies and mistakes in the Process Verbaal or the possibility of those existing, would not have the benefit of being able to cross-check with the original material in the face of suggestions of inaccuracy.

In the course of his ruling (page 8a-b) the trial judge directed himself in words which, although not identical to those of the section, did not, in our view, differ in substance from the relevant test. The application of section 78 often requires the trial judge to carry out a discretionary exercise which involves balancing on the one hand the potential weight in the support of the prosecution case of particular evidence and on other the hand any prejudicial effect, whether attributable to a procedural disadvantage or otherwise, which might be caused to the defendant by the admission of the evidence in question. Obviously, in testing the existence or magnitude of the risk of unfair prejudice, the trial judge will take into account, amongst other matters, what he might say to the jury about that evidence in the course of his summing up. It has to be emphasised, however, that the mere presence of a risk of potential prejudice, even if it is not wholly remediable by warnings to the jury in the course of summing up, may not necessarily justify the exclusion of that evidence. It is for the trial judge in each case to weigh the risk of unfair prejudice against the substantiality and materiality of the evidence. In the view of this court, the learned trial judge applied the correct test under section 78 and in exercising his discretion, he arrived at an entirely tenable conclusion. He was entitled to take the view that the Process Verbaal was likely to be a reasonably accurate record of the contents of the original notes and tapes and that the inability of the defence to refer to those notes and tapes for the purposes of challenging the accuracy of that record, did not give rise to so serious risk of prejudice as to justify excluding the Process Verbaal and the Dutch police evidence.

We are therefore not persuaded that there is any real substance in the submissions advanced on behalf of the defence on this first ground.

Hutchings: Failure to withdraw counts 1 and 2 from the jury at the close of the prosecution case.

We consider first the submission that there was no actus reus on the evidence because the stage of attempt had not yet been reached at the time when the Toyota was stopped by the Belgian police officers in Belgium.

We have been referred by Mr Mendelle, on behalf of the defence, to a decision of this court in R v. Widdowson (1985) 82 Crim App R. R v. Gullefer supra, R v. Tony Campbell (1991) 93 Crim App R 350, in which it was held that attempt had not been reached in a case when at the time of the arrest, the drugs in question had yet to be transferred to a further vehicle prior to import, R. v. Geddis (1996) CRIM LR 894 and R v. Quadir, supra.

In the last of these authorities another division of this court in a judgment given by Potter LJ. made a number of observations in relation to the actus reus under section 170(2) which are particularly pertinent to the submissions made before this court.

Firstly, it is a proper working approach for a trial judge, directing himself and the jury for the purposes of section 170(2), to adopt the statutory definition of an offence of attempt under section 3 of the Criminal Attempts Act 1981, namely that “a person is guilty of an attempt under a special statutory provision if, with intent to commit the relevant full offence, he does an act which is more than merely preparatory to the commission of that offence”. Whereas under section 170(2) the substantive offence is that of being mainly concerned in an attempt at evasion of the prohibition of importation, there must nevertheless be an attempt with which the defendant must be established to be knowingly concerned. Accordingly, there must be established to be an act which is more than merely preparatory to the commission of the offence of importation.

Secondly, in ruling whether the evidence adduced or to be adduced by the prosecution establishes that what was done was capable of being more than merely preparatory to the commission of the offence said to have been attempted, it is necessary to have regard in the case of section 170(2) to the essential nature of the crime alleged to be attempted. In a case of deception or concealment, as observed by Potter LJ. at page 10 of the judgment in Qadir, the actus reus of the crime itself may take place over an extended period of time and the moment of embarkation upon it may be quite remote in time from the point of its anticipated successful outcome. This is to be contrasted with crimes involving a killing or wounding in which there may be little or no preparatory activity and which the borderline between attempt on the one hand and a substantive crime on the other, is easily delineated.

Thirdly, it is to be observed that in Qadir, this court regarded the process of attempted drug export as capable of including the chain of steps taken to transfer the drugs from their hiding place in the UK to their destination outside the jurisdiction. In particular, it is to be noted that this court concluded that it was open to the trial judge to rule that the stage of attempt was capable of having been reached before the drugs concerned had been handed over to the recipient in the UK who was to take the drugs out of the country.

The point made on behalf of the defence in the present case is that, given the prosecution case that the Toyota was not the final vehicle intended to be used for transferring the drugs into the UK, the stage of attempt was incapable of having been reached.

We are unable to accept that submission. In our judgment, it is not reasonably arguable that the stage of attempt had not been reached by the time of the intervention of the Belgian police. The multiple stages of transfer with the objective of importation into the UK had been already embarked upon and the importation scheme set into motion. This being so, the learned trial judge, in our view, properly directed himself and ruled that the prosecution case made good the actus reus required for the offences charged under counts 1 and 2.

Hutchings: failure to withdraw counts 3 and 4 from the jury at the close of the prosecution case.

It is submitted that, having regard to the fact that under counts 3 and 4 the applicant, Hutchings, was charged with assisting in the commission of an offence in Belgium under section 20 of The Misuse of Drugs Act 1971, the prosecution had to prove that he had done an act or acts in the UK which assisted the commission of the offence in Belgium. In particular, acts of assistance committed overseas were irrelevant. It is submitted that, on the prosecution case, all that Hutchings had done in this country was to hire the transit van and to travel in it to the ferry. That was not the van in which the drugs were being carried at the time when the Belgian police intervened, nor was it the van in which, on the prosecution case, it was intended that the drugs should be imported into either the UK or into any other country, such as Belgium or France. Mr Mendelle helpfully referred us to decisions of other divisions of this court in R v. Vickers (1975) 1WLR 811 and R v. Evans (1977) 64 CR APP R 237. These illustrate the circumstances in which conduct in this country can be treated as sufficient to assist an importation for the purposes of section 20.

In our judgment, the process of hiring the transit van in the UK and the taking of that van to the ferry as well as the travelling to the ferry by the applicant, Hutchings, was capable of amounting to assistance in the importations for the purposes of section 20. The fact that the van was not to be used for the actual process of importation and, that Hutchings himself, was not to carry the drugs in the course of importation is, in our judgment, beside the point. The essential consideration is whether either Hutchings or the van or both had a part to play in the intended importation. On the prosecution case, they clearly had. Hutchings clearly played a part in the process of transfer of the drugs in Breda. Although the van itself had no distinct part to play in this exercise or in the movement of the drugs, it was the means by which Hutchings transferred himself from this country to the venue at which the transfer took place. In these circumstances, we have no doubt at all that the learned trial judge was correct in ruling that these grounds provided no basis for withdrawing the case from the jury.

Accordingly, there are no grounds upon which the applicant, Hutchings has any realistic prospect of succeeding in the appeal again conviction and this renewed application must therefore be refused.

Mark Cummings: Refusal to withdraw the case from the Jury.

It was submitted that there was insufficient evidence to link the applicant, Cummings with the importation exercise and, in particular that there was no evidence from which a proper inference could be drawn that mobile phone 214 was used pursuant to the criminal enterprise and that, in any event, there was no evidence which could found a safe inference, rather than mere speculation, that that mobile phone either belonged to, or was exclusively used by the applicant, Cummings at the relevant time or at all.

Earlier in this judgment we have already outlined the prosecution case on the linkage between Mark Cummings and the importation exercise and the reliance on both mobile phone 214 and the mobile phone numbers found written on the documents comprising exhibit Hill 0004, in order to establish that linkage. The submissions made on behalf of the applicant by Mr Milliken-Smith can be summarised as follows:

The telephonic evidence was the only evidence upon which the Crown relied in order to link the applicant to the illegal importation exercise. In particular, there was no evidence of the applicant travelling to Europe or of making any travel arrangements or of transferring monies to any of the parties concerned or of procuring or providing vehicles or recruitment of other participants. The only evidence which even began to suggest a connection between Cummings and the enterprise was his association with Samuels and the fact that his father, Robert Cummings had gone over to Holland with Hutchings. As to the mobile phone 214, although it was admittedly found in a mobile telephone holder in the Mercedes which Cummings was driving at the time of his arrest, it was we are told expressly conceded on behalf of the prosecution that it could not be said that the applicant, Cummings had used mobile phone 214 at any stage nor was there any evidence as what was said in any of the calls made by that phone. Further, although one of the numbers – 174 – to which calls had been made from the mobile phone 214 was admittedly in the vicinity of the co-defendants while they were at Breda, it was conceded by the prosecution that it could not be said who had the mobile phone in question nor whether it was part of the enterprise or not, for it had never been recovered. Further, there was no documentary evidence which suggested that mobile phone 214 was linked to the applicant. All that could be said was that that number did not appear on any of the documents which were said to have been taken from his possession or his premises by the police. Indeed, there was evidence comprised in the print out of calls made by phone 214, from which it could be inferred that this instrument had been used by and in possession of someone other than the applicant only shortly before his arrest. In particular on the 4 May 1999 the applicant was under observation by the Customs Officers while he was in a café and yet twice during that period including one call lasting over a minute, mobile phone 214 was used. However, the applicant was not observed to make any mobile phone calls during this period. Accordingly, it is submitted that the only safe inference is that at least one other person had access to this phone during the course of the relevant period. It is further submitted that in as much as Samuels was in the car at the time when the arrests were made and mobile phone 214 was found, it is equally likely that it was a phone which belonged to or was a exclusively available to him. Indeed, there is evidence that he had possession of or exclusive use of no less than seven mobile phones in various places. Finally, the police officer who gave evidence in relation to the finding of mobile phone 214 conceded that it could be that it was lying in the holder rather than being clipped into it and that the holder might have been affixed to the passenger side of the central console rather than immediately to the left of the steering wheel.

In the absence of evidence as to the mobile phone numbers on the documents comprised in Hill 0004, there was very little indeed to connect Cummings with mobile phone 214. Indeed, Hill, having made a statement on 9 June 1999 producing Hill 0004, conceded that he never saw the documents comprising that exhibit when he made the statement and so did not formally identify them. Further, he conceded in evidence that he could not say whether the documents which he was shown were indeed the same of those he had seized from the applicant, Cummings. We were informed that the prosecution conceded that since the documents seized by Hill from Cummings had gone into a pool of documents including those from others who were arrested in relation to the same offences, for example Samuels, and had not been labelled, it could not be said with any certainty that the documents comprising Hill 0004 had indeed been those taken from Cummings. Accordingly, they could have come from documents seized from another of those arrested.

In our judgment, there is much force in the submission that the documents comprised in Hill 0004 are of such doubtful origin that they could not be safely relied upon as establishing a linkage between the applicant, Mark Cummings and mobile phone 214. Accordingly, given the other evidence which we have already referred relating to mobile phone 214, there is in our judgment some substance in the submission that the learned trial judge should indeed have withdrawn the case from the jury at the close of the prosecution case.

Mark Cummings: Failure to discharge the jury following the submissions of no case to answer.

This ground for the renewed application is put forward on two distinct bases. Firstly, it is said that had the lack of continuity in the provenance of Hill 0004 been made clear to the defendant prior to the start of the trial, a submission would have been made before the matter came before the jury to the effect that these documents should not be admitted in evidence. Accordingly, if that application had succeeded, as it should have done, the jury would never have seen these documents. Having done so, the matter could not be properly cured in the course of the summing up. We are not persuaded that this was so. It was of course open to the learned trial judge, provided that he was satisified that there was sufficient additional evidence to leave to the jury to direct them that Hill 0004 should be ignored. However, one returns to the evidential problem presented by the very slender nature of the evidence connecting the applicant, Cummings, with the use of mobile phone 214 for any relevant purpose. If the jury were to be directed that the Hill 0004 evidence could not be relied upon to establish that linkage, there was very little left to leave to the jury in support of the prosecution case against the applicant.

The second basis upon which it is said that the jury ought to be have been discharged following the submissions of no case to answer is that upon the learned trial judge’s ruling in relation to Robert Cummings, the evidence of linkage between Mark Cummings and the illegal enterprise provided by the association of Robert Cummings with Hutchings and his journey to Holland disappeared. That left the prosecution case against Mark Cummings even more tenuous that it otherwise would have been.

Having regard to the fact that we are giving leave to appeal in relation to ground 1, the applicant, Cummings will have the opportunity of advancing his arguments in relation to ground 2 also before the full court. We would only add that had the sole basis for this renewed application been that relating to the disclosure to the jury of the previous convictions of Robert Cummings prior to his successful submission that there was no case to answer, we should not have considered this an appropriate basis for allowing this renewed application.

Mark Cummings: Failure to direct the jury that Hill 0004 was inadmissible following the conclusion of the summing up.

In the course of his summing up, the learned trial judge had directed the jury that they might conclude that exhibit Hill 0004 included documents found in Cummings’s wallet on the basis that they were satisfied from other evidence that mobile phone 214 was his or one that was habitually used by him.

The learned trial judge then outlined certain other evidence which was said to establish that mobile phone 214 belonged to Cummings. In particular, he drew attention to evidence that calls had been made to mobile phone 214 from two phones – 660 and 215 - which were associated with Samuels. Accordingly, it could be inferred that 214 could not have been Samuels’ phone. He also drew attention to calls passing between phones 214 and 174 which was a phone located in Holland in the vicinity of the drug transfer operations but which was also a number found on a scrap of paper which had been taken by the police from Cummings’s house. It appears from a passage in the transcript at page 124 following the summing up that the learned trial judge refused to direct the jury that Hill 0004 was inadmissible for all purposes because it was open to the jury to find on other evidence that phone 214 belonged to the applicant, Cummings, and if that conclusion were reached, it was open to the jury to infer that the Hill 0004 documents were taken from Cummings’ wallet. That would help the jury to conclude that phone 214 did indeed belong to Cummings and not to Samuels.

It is argued on behalf of the applicant that this reasoning was circular and did not answer the submission that Hill 0004 was inadmissible for all purposes and that, accordingly, once it was left in evidence before the jury, there was a serious risk that they might base upon it an inference that phone 214 did indeed belong to the applicant and, therefore that the applicant was connected to the illegal transaction.

This point is clearly closely associated with the first ground of this application. Although it is presented as a separate ground of appeal, if the applicant is not entitled to succeed on his first ground, it is extremely unlikely that he could do so on this ground alone. Accordingly, although we are giving leave to appeal against conviction, those advising the applicant will no doubt give careful consideration to whether there is anything to be gained by relying on this further ground before the full court.

The applicant, Cummings, also relied upon those grounds advanced on behalf of the applicant, Hutchings in relation to the exercise of the learned trial judge’s discretion under section 78 and further, in relation to whether the stage of attempt had been reached. For reasons which we have already given, there is no substance in either of those grounds and leave to appeal to the applicant, Cummings could therefore not have been given on the basis of either those grounds standing alone.


 
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MR JUSTICE COLMAN: For reasons which have been given in the judgment now handed down, the renewed application for leave to appeal against conviction of Garry William Thomas Hutchings is refused and the renewed application of Mark Anthony Cummings for leave to appeal against conviction is allowed. For reasons discussed in argument at the hearing in July, the renewed application of Hutchings for leave to appeal against sentence stands adjourned to a date to be fixed.

Are there any collateral applications?

MR MILIKEN-SMITH: My Lord, I think on the previous occasion I invited the court to consider granting legal aid for that hearing and thereafter, and I think your Lordships were kind enough to indicate that that was granted.

MR JUSTICE COLMAN: Yes, we did do that.

MR MILIKEN-SMITH: Thank you very much.

MR JUSTICE COLMAN: Mr Mendelle, do you know anything about the progress of your adjourned application?

MR MENDELLE: No. I have been endeavouring to find out from the list office over the last few days, so far with no success. I did hear from the registrar, who sent a chronology of events and asked me to prepare a skeleton argument, which I did, and which I trust is now with the court file.

MR JUSTICE COLMAN: Yes.

MR MENDELLE: But I have not heard anything since then, that was about a month/month and a half ago.

MR JUSTICE COLMAN: You have provided an estimate, presumably, as well as that, because of course we have been through all the facts and we know a great deal about this, so that presumably your application will be of a fairly short compass in terms of time.

MR MENDELLE: Yes.

MR JUSTICE COLMAN: The only thing is that both Stanley Burnton J and I are occupied in other jurisdictions for much of this term, so we need to know well in advance how much time to set aside and fix a hearing time at a mutually convenient date.

MR MENDELLE: Well, my Lord, all I can suggest is that I will speak again to the listing office and endeavour to have it expedited.

MR JUSTICE COLMAN: I think it would be sensible because, although it is not intrinsically an urgent matter because of the length of sentence, nonetheless it is important, I think, that an adjourned application should be dealt with reasonably quickly.

MR MENDELLE: My Lord, especially since the substance of the complaint is one of delay in dealing with the appeal.

MR JUSTICE COLMAN: Absolutely so, quite. All right, thank you both very much.