England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Wednesday, 5 July 2006

1. LORD JUSTICE HUGHES: We have before us three appeals against conviction and two against sentence on the part of four men, who were convicted of conspiracy to import cocaine. We deal first with the appeals against conviction.
2. The issues raised are whether there was a case to go to the jury, and if so, whether their case was sufficiently summarised by the judge in summing-up. In relation to one appellant, a separate issue is raised concerning comment made by the Crown in its closing speech. There was no issue at the trial but that there existed the conspiracy. The question was whether these three appellants were shown to be a party to it.
3. The three appellants, Doyle, Roberts and Paul, were tried with three others, Ward, Burr and Paul Wright. The Crown case, however, was that the conspiracy extended beyond those six. There were at least three others alleged to have been in the conspiracy and probably more. Woolley, whose appeal against sentence we shall come to later, was one. He had pleaded guilty. Another was a man called Rawson, who was to be tried separately and, as we understand it, later pleaded guilty. A third, George Wright (apparently no relation to Paul Wright) had eluded arrest.
4. There was just under 30 kilograms of cocaine (8.39 kilograms at 100 per cent purity), with a street value of the order of £1 million. It was brought into this country concealed in a motorway maintenance lorry, which was fitted with two tar boilers on the back. In one of those boilers a secret compartment had been constructed to take the cocaine in such a manner that it could then be covered with tar, no doubt thus making detection by the various means available to the authorities rather more difficult. The drug had been obtained in Spain and it was driven to England via Zeebrugge to Hull. The Crown case was that the conspiracy was formed between men who lived in London and men who lived in Derbyshire. The three appellants against conviction, Doyle, Roberts and Paul, were of the London end.
5. This was a surveillance case and much of the evidence could not be disputed. It was presented to the jury, in part, in the form of a long agreed schedule chronically meetings, events, observations and the fact, although not the content, of a very large number of telephone calls. It followed that the case was very largely about what conclusions the jury should draw from the unchallengeable evidence, though there were some points of observation as to which there was challenge.
6. In outline, the evidence showed that Rawson, from Derbyshire, owned the lorry. Burr, also from Derbyshire, had a yard where he installed the secret compartment. Ward was a neighbour and friend of Rawson and of Woolley in Derbyshire. Paul Wright, also from Derbyshire, was the driver of the lorry. The London end of the conspiracy was said to involve these three appellants, together with George Wright, who is the man who had not been apprehended.
7. The lorry was worked on in Burr's yard in the first week of March 2004. In the late afternoon of 8 March Paul Wright set off to drive it overland to Spain. He was followed, travelling no doubt a little faster in a Mercedes motor car, by Woolley, who left for Spain the following day and picked up Burr on the way at Calais, together with some others not on trial. The Crown case was that the return journey with the cocaine would have been accomplished on or soon after 11 March. However, on that day terrorist bombs exploded on the Madrid railway early in the morning, and the result of that was considerably heightened security in Spain. In the event, Burr, Woolley and the driver (Paul Wright) all came back to England by aeroplane on different occasions in the second or third week of March, leaving the lorry in Spain.
8. By 25 March, things had quietened down sufficiently and on that day and the following day, Woolley and the driver Paul Wright flew back to Spain separately. The run with the cocaine was made between 1 and 4 April, with Paul Wright again driving the lorry. Woolley returned by plane on 1 April as the drugs set off from Spain, and was back in England ready to meet the lorry when it arrived. The lorry crossed from Zeebrugge to Hull on the night of 3 and 4 April. Arrests were made early the following morning and the illicit cargo was intercepted and recovered in England.
9. The case against the London defendants was not that they had executed the importation themselves in the sense of physically bringing in the drug, but that they were party to setting it up and planning it. The Crown case was that Doyle was the link between them (in London) and the Derbyshire operational team via contact with, principally, Woolley.
10. The case against these appellants was founded upon a series of meetings amongst themselves and telephone contacts and meetings with the Derbyshire conspirators, together with the juxtaposition of those events to the progress of the plan and its eventual execution.
11. As we have said, Woolley had pleaded guilty. The jury convicted Burr, whose defence had been that he had constructed the secret compartment, but thought it was for the export of illicit currency only. The jury convicted Ward, who had advanced the defence that he was not concerned in the plan. There is no appeal by either of those. Paul Wright, who had contended that had he had been used innocently as a mule by Burr and/or Woolley, was acquitted by the jury. Convicted also were these three London defendants, Doyle Roberts and Paul. Doyle had given evidence in the trial. Paul and Roberts had neither answered any questions when interviewed by the investigators, nor had they given evidence at the trial.
12. First then the submission of no case. The judge rejected submissions that there was no case made to him on behalf of Paul and Roberts. Late in his ruling he said this:

"so far as the law is concerned, I further perhaps opine the Court of Appeal have made it clear that only in exceptional cases should cases be withdrawn from the jury."

13. It is not entirely clear what the Recorder there had in mind. It may be that it was the proposition that it will only be in unusual or exceptional cases where the issue is credibility, which would ordinarily be for the jury, that it would be proper to uphold a submission that the case should be brought to an end at the close of the Crown evidence. But it is not clear that that is what he meant, and when the point was raised with him, as it was immediately afterwards very properly by counsel, the Recorder indicated that of course there was no question of credibility being in issue here, and that, the point having been raised, it did not affect his conclusion. Of course, if he had been applying a test that an exceptional case was required, that would not have been correct. The test on a submission of this kind, as is very well-known, is whether the evidence, if taken at its highest, is evidence on which the jury could properly convict. In the end, no further enquiry is necessary or appropriate here as to the reasoning adopted by the judge. The question of whether there was a case to be left to the jury is a question of law for us, and we propose to apply ourselves to it afresh and to apply the test that we have just stated.
14. The case against Paul and Roberts could only be understood by considering their proven actions, together with the actions of Doyle, because the way the case was put was that Doyle was their link to the Derbyshire operational end of the conspiracy. In the case of Doyle, it was conceded inevitably and correctly that there was a plain case to answer. It follows that we shall now have to set out a certain amount of detail, though what we say remains a summary only of a case that in all lasted several weeks at trial.
15. On 7 February, Doyle travelled from London to Derbyshire and met Rawson, the owner of the lorry. On 11 February, Doyle and Paul, who lived near to one another in Islington in London, met George Wright on a roadside in Catford, having therefore travelled no little distance in order to do so. On 18 February, Doyle and Paul made a similar rendezvous, again on a street corner in Catford, to which their came on this occasion not only George Wright but also Roberts. Neither Paul nor Roberts ever provided any account for either of those meetings -- Roberts, of course, was affected only by the second. In due course, but only when it came to the defence case at trial, Doyle gave evidence that these two Catford meetings took place because he hoped to sell a stolen Mercedes to Roberts, who did not turn up on the first occasion but did on the second. In relation to that contention, the evidence before the jury included observation evidence supported by video photography which strongly suggested that none of the people present showed any interest in the parked Mercedes a little distance away. The evidence in due course also included Doyle's evidence that this was the first time he had ever met Roberts, that Roberts did not want the Mercedes, but nevertheless pressed £1,000 in cash upon him as deposit against some unspecified and uncertain possible future purchase of some other motor car.
16. On 21 February, three days later, Doyle, Paul and George Wright (that is to say the London defendants absent Roberts) met Woolley, Rawson and Ward of the Derbyshire conspirators at a bar in Marylebone in London called the All Bar One. They were together for about 40 minutes and were then seen to separate with general exchange of handshakes. In due course, the jury had to enquire what these two groups of people might have had in common. Paul never provided any account or explanation for this meeting. Doyle in due course, but only at trial, gave evidence that his contacts with Woolley, of which there were a great many, were all attributable to him selling Woolley stolen motor cars. Of this meeting, Doyle in due course gave evidence that Woolley, whom he by then knew, had mentioned that he would be or was in London, and the meeting was entirely opportunistic and social. If that account of Doyle's of that meeting was disbelieved, there was no other evidence of connection between the Derbyshire and London groups, save for the drug deal.
17. On 3 March, Doyle drove north from London to Derbyshire. He met Woolley and he left with him the car in which he had driven north, which was a stolen Jaguar. Together, they went to Burr's yard where the lorry was either being converted or about to be converted. Having visited the yard, Doyle came back by train to London. He went immediately to a public house called the Salmon and Compass, close to his home, and there met Paul, who lived nearby, and also George Wright and Roberts, who lived in the Bromley or Chislehurst area of South London and were clearly attending a rendezvous.
18. On 9 March, Doyle, George Wright and Paul met at Paul's home. By then, the lorry and, separately, Woolley and Burr were enroute to Spain, if not there. On 11 March, Doyle, Paul, George Wright and Roberts met in a car park at Sundridge Park Railway Station near Bromley. No one caught a train; no one had any business at the station. That meeting took place at about a quarter to four in the afternoon. George Wright had visited Paul, from South London to Islington, some time in the morning around half-past 11 or a quarter to 12. He had then visited Roberts back in the Bromley area just after 1 o'clock. By just after half-past 2, Doyle and Paul were at George Wright's home down in South London. They were using a black Volvo motor car, which appears to have been a stolen one. Subsequently, they went from there to the meeting at the railway station, which, it is to be observed, did not take place either at the home of George Wright or at the home of Roberts, both of which were close by.
19. The meeting lasted something like five minutes or thereabouts, and from it the various people went their separate ways. Neither Paul or Roberts at any stage provided any account or explanation of that plainly clandestine meeting. Doyle, in due course, but only at trial, said that the purpose of it was to enable Roberts to view the black Volvo motor car as a prospective purchaser. 11 March was the day of the Madrid bombs, and the series of contacts between the London defendants was suggested by the Crown as consistent with the necessary change in plan forced upon the drug importation by events in Spain.
20. On 21 March, Woolley being by now back in England, Doyle went up to Derbyshire again to meet him there. On his return to London, the car that he was then using (and prima facie he) was seen at the Imperial Arms in Chislehurst, where Roberts also arrived at the same time, staying for about 20 minutes. That accordingly was a second occasion when, hotfoot from Derbyshire, Doyle was in immediate contact with Roberts.
21. On 24 March, Doyle and Paul travelled down to Chislehurst again. They met Roberts and George Wright in what was now a third different location in that area, namely a café called the Chestnut Café. Neither Roberts nor Paul ever provided any account or explanation of that meeting. Doyle in due course at trial said that he was meeting Wright about a car and a possible building job. Paul, he said, was there simply because he was Doyle's friend. Roberts, he said, was there entirely fortuitously, having turned up on his way to the bank. However, since Roberts was there, said Doyle, he had taken the opportunity to speak to him about a third possible sale of a stolen car, that is to say a Golf. That meeting on 24 March took place shortly before the Derbyshire executors of the importation returned to Spain to effect the importation.
22. On 31 March, Doyle met Roberts again. He met him on this occasion on a street corner in Mottingham, not very far from Chislehurst, outside a motorcycle shop. Once again, there was never any account or explanation from Roberts for that meeting, but Doyle in evidence suggested that he had gone there at the request of George Wright, made on behalf of Roberts, in order to return the £1,000 deposit which Roberts had, according to Doyle, paid five or six weeks earlier and which he had been sitting on since. That day (31 March) is the day before the run with the cocaine started from Spain.
23. On 1 April, the day that the drugs left Spain, Roberts met George Wright, again on a street corner Mottingham.
24. Throughout this period there was evidence of regular telephone contact between Doyle and Woolley. Frequently it was at times which suggested connection with events in the course of the planned cocaine importation.
25. As at the close of the Crown's case, the evidence affecting Paul depended upon six meetings. They were the two Catford meetings; the perhaps critical All Bar One meeting with the Derbyshire conspirators; the meeting at the Salmon and Compass public house immediately after Doyle had been to the yard where the lorry was being converted; and two of the series of apparently clandestine meetings with Doyle and Roberts in South London, those at the railway station and the Chestnut Café. There was evidence that at the meetings which Paul had attended, which had also included Doyle and Roberts, those latter two had on a number of occasions spoken to each other in the absence of Paul. That had happened at the Salmon and Compass public house, at the railway station and at the Chestnut Café.
26. As at the close of the Crown case, Doyle's explanation for these various meetings had yet to be advanced. There was evidence of the existence of stolen cars in the sense that it had emerged that Doyle habitually used one or other stolen motor car. Beyond that, there was no evidence of stolen cars as a possible explanation for the various meetings, and to the extent that an attempt had been made to establish it as an explanation in relation to the second Catford meeting, through cross-examination of the observing customs officer, the attempt had floundered on the evidence that no one had looked at the car.
27. It was of course a possible view, either that these meetings had nothing to do with drugs, although there was a drugs plan afoot, or that, though Doyle and Roberts spoke together about drugs, Paul was excluded. As it has elegantly been put to us, people -- and that includes the dishonest as well as the honest -- may multi-task, that is to say they may have more than one piece of business on hand at any one time. It is of course correct that even if any second business that Doyle, for example, had were criminal, it did not necessarily follow that what was in discussion was this drugs plot.
28. But in the case of Paul, the meeting at the All Bar One wine bar with the Derbyshire conspirators probably by itself produced a prima facie case, and certainly we are satisfied that, coupled with a series of surreptitious meetings with Roberts and Doyle, following in two cases immediately after Doyle had been to Derbyshire, the question of whether these meetings were connected with drugs or were independent of them, was one which was for the jury and not for the judge. The judge, we are satisfied, was right to hold that there was a case to answer.
29. So far as Roberts was concerned, the case against him depended upon, first, the second Catford meeting; secondly, Doyle meeting him at the Salmon and Compass public house, a long way from home, immediately after Doyle had come back from the visit to Burr's yard in Derbyshire; and then on the series of meetings which were, at any rate, prima facie clandestine, none of them at the same place twice, that is to say the railway station, the Imperial Arms, the Chestnut Café, the motorcycle shop and the street corner in Mottingham.
30. As at the close of the Crown case, it was not in evidence that he had met Doyle only for the first time at the second Catford meeting. But it was in evidence that on both 3 March and 31 March, Doyle had proceeded more or less directly from a visit to Woolley and/or Burr in Derbyshire to a rendezvous with Roberts. Roberts was not at the All Bar One meeting with the Derbyshire end of the conspiracy. Otherwise, the position was effectively much as in the case of Paul.
31. We are satisfied that, in that case also, the evidence which we have attempted to summarise established a prima facie case for the consideration of the jury and that the judge would have been wrong to have withdrawn it from them.
32. We turn accordingly to the summing-up. The essential submission of Paul and separately of Roberts and also, though differently expressed, of Doyle, is that the Recorder did not adequately leave their cases to the jury. We consider first Paul and Roberts. Their cases raise related questions. Neither of them had either said a word to the investigators or given any evidence. Nor had they advanced any positive case in the course of the trial, either by calling evidence or by adducing it by way of cross-examination of others. The most that could be said was that they had not challenged Doyle's evidence that the various meetings were explained away in the manner that he explained them.
33. The Recorder, when he came to sum up, put to the jury right at the outset a nutshell summary of the cases on the various sides. He told them first of all that the Crown asked them to infer from the juxtaposition of calls, meetings and events that there was no other reason for them other than that the defendants were all knowingly engaged in the conspiracy to import cocaine.
34. As to the defendants, the Recorder encapsulated their cases in this manner, right at the outset of the summing-up:

"A lot of the evidence isn't controversial, but suffice it to say at this stage that each of the defendants who's being tried before you deny the allegation, either on the basis that they weren't involved in any type of conspiracy to import drugs and deny any such knowledge of such conspiracy and, further, for example in the case of Richard Burr [then summarised his account] ...

Some of the defendants say that the meetings they had were in connection with stolen cars."

He went on to say that some of them, and by that he meant the Derbyshire end, said that they were dupes of Michael Woolley. All of them, he said, deny conspiring to smuggle cocaine.

35. The linking by inference of Roberts and Paul with Doyle in the reference to some of the defendants saying that the meetings were in connection with stolen cars was a convenient summary given the way in which Paul and Roberts had in effect adopted the evidence of Doyle.
36. A little later, and still very early in his summing-up, the Recorder told the jury this:

"You must consider the case against and for each defendant separately. The evidence is different and, therefore, your verdicts need not be the same. Was Wright [the driver] an innocent courier? Did Burr construct the concealment not knowing that it would be used to import drugs? Did Ward go to Spain as part of the potential team to use the lorry to work in Spain or in furtherance of a plan, or is he just an innocent drinker from [a public house]? Was the involvement of Doyle, Paul and Roberts limited to dealing in cars?"

37. A paragraph or two later, he told them this:

"Before you can convict any of those defendants, you must be sure, firstly, that there was in fact an agreement between two or more persons to smuggle cocaine, and that the defendant whose case you are considering was a party to that agreement."

38. Shortly after that, he told them this:

"... you will recall that it is suggested on behalf of each of the defendants that they were doing no more than associating with a person or persons who was or were a party to the conspiracy. Clearly, if you think that in relation to any defendant, that his association with a conspirator might be or was entirely innocent, then he would not be guilty. The standard of proof is the one that I've explained to you before. You must be satisfied so that you are sure."

39. That directly and explicitly put before the jury the defence that was advanced by Paul and Roberts: "in effect, even if Doyle is in this conspiracy, our association with Doyle is independent of it and innocent".
40. When he came to deal with the evidence, the Recorder did not read out the comprehensive schedule of chronology. No criticism is or could be made of that treatment of it. What he did say was this:

"It is important that you look at that information carefully. The defence of course say that, although the schedule of events is agreed, it is not correct that the inescapable inference that you should draw from the schedule and the activities contained therein is that the respective defendants were involved in knowingly smuggling drugs or conspiring to smuggle drugs."

41. Once again, in the absence of any evidence from Paul or Roberts, or for that matter any explanation advanced to the investigators, that was a one-sentence summary of their case, which was: "we take our stand on the proposition that the evidence which we do not dispute does not show that we are guilty".
42. There then followed a meticulous summing-up of the evidence. Each significant matter which had been elicited in cross-examination by any defendant was referred to. Doyle's evidence occupies something like 25 pages of transcript in the course of the summing-up. It was accordingly presented, and in detail, for the jury and, as we have said, so far as any positive case was advanced by Paul or Roberts in relation to the evidence which confronted them of the various meetings, it consisted of no more than adoption of Doyle's evidence.
43. The complaint which is made on behalf of Paul and of Roberts is that, in dealing with the matter in that way by narration of the evidence rather than identification of issues, the judge did not sufficiently sum up the alleged weaknesses in the Crown case. In particular, in relation to Paul, Mr Nelson submits to us that the summing-up is flawed for the fact that no attempt was made to point out, as a unified proposition, that at four of the six meetings which affected Paul, there was evidence that Doyle and Roberts had spoken privately in his absence.
44. It is correct that the judge did not draw the threads together in relation to those various meetings. However, as he dealt with the matter chronologically, at every stage where a relevant meeting was summarised for the jury, the separation of Doyle and Roberts from Paul was clearly and distinctly identified. The criticism which is made is really a submission that the judge should have summed up the argument which was advanced on behalf of Paul. That is not the judge's necessary task.
45. In the case of Roberts, a similar submission is made, and in particular Mr Kendal invites us to say that the summing-up is flawed because, particularly having given the necessary direction as to possible inference from Roberts' failure to give evidence, the judge should have reminded the jury that Doyle's evidence was capable of exculpating him. We are entirely satisfied from the very lengthy summary of Doyle's evidence which appears in the summing-up that no jury could conceivably have been in any doubt that, if they sought that Doyle's evidence was or even might be true, it followed not only that he was not guilty, but also that neither Paul nor Roberts was.
46. This was, we are satisfied, a summing-up which took the form of narration of the evidence. The judge in this case did not summarise argument on either side. Some judges do refer briefly to arguments on either side; others carefully eschew it. The obligation of the judge is to sum up the evidence and to ensure that the jury can see what the issues are. There is always a peril in embarking on a recital of arguments. If the argument on one side is to be put, it has to be balanced by the argument on the other. In this case, if the judge had sought to set out the arguments, which we have no doubt had been powerfully made in closing speeches on behalf of the defendants Paul and Roberts, he would have had to balance them by those which had been made on the part of the Crown. Particularly in a case where the evidence is all on one side, such a course is often fraught with the risk of the appearance of imbalance.
47. Many judges would, we think, in a case of this kind, have included a sentence or two to identify the issues which arose in relation to the various meetings. Many, and perhaps most, might have told the jury in terms more specific than this judge did that the contention of the defendants Paul and Roberts was that the admitted evidence did not show that they were party to the drugs plan, and that they took their stance on that proposition and were entitled to do so. But for the reasons that we have given and from the extracts which we have set out, it is plain that the judge did tell the jury that that was the contention of both Paul and Roberts. The jury can have been in no possible doubt about those matters. This was a trial which had lasted six weeks.
48. We are very conscious that a defendant who gives no evidence and advances no positive case has very little that is capable of being summed up. As has been said on many occasions, it is not the function of the judge to embark upon arguing the case of a defendant who has declined to advance it for himself.
49. We are also very conscious that, whilst this court may on appeal have only the summing-up to go on, it is a serious error here to think that that is all the jury has to go on. This trial had lasted several weeks. The jury had been addressed, powerfully no doubt, on behalf of each defendant. A summing-up comes with the background of a trial. We are satisfied that the convictions of Paul and Roberts are not unsafe for any omission from the summing-up.
50. Doyle accepts that there was a case to answer. He submits, however, that his case was not adequately summed up. In particular, he submits that the judge should have drawn attention to the submissions that were made on his behalf that the pattern of telephone calls did not suggest a link with the importation of the cocaine, and that the meetings with Paul and Roberts were more likely on the evidence to be concerned with stolen cars -- of the presence of which there was undisputed evidence -- than they were to be connected with drugs.
51. For the reasons which we have already given in the case of Paul and Roberts, it was not the judge's function to repeat the arguments or submissions. In the case of Doyle, the jury could not conceivably have been in any doubt about what the issues were. His evidence had been extensively related to them, and the submission that the summing-up failed properly to present his case fails in limine.
52. Mr Roche, however, has a second string to his bow. He contends that the judge's omission fully to present to the jury the cases of Paul and Roberts may have resulted in the jury convicting them when they should not have done, and then, having done that, to have reasoned that Doyle must also be guilty. Ingenious as that argument may be, there is, we are satisfied, no substance in it. First of all, it is enough to say that, as we have already held, the cases of Paul and Roberts were adequately dealt with and there is nothing unsafe about their convictions. Even if there had been, that argument stands on its head the way in which the case was presented, that is to say Doyle first, then Paul and Roberts.
53. We come to the matter of comment by Crown counsel. In the course of his final speech, counsel for the Crown invited the jury to consider the position of a principal conspirator, dubbed by counsel "Mr Big", viz somebody who keeps out of sight, meets on street corners and whose identity is known only to his minder. Counsel made it perfectly clear that he was suggesting that that was a profile that fitted Roberts. Counsel for Roberts interrupted counsel for the Crown's closing speech. There was a break, and in the absence of the jury, he persuaded counsel for the Crown to withdraw the suggestion that had been made. A formula was agreed between counsel, and counsel for the Crown, when the jury reconvened in court, made this unequivocal withdrawal:

"I did say to you that I would suggest that there was a hierarchy and I did suggest that Mr Roberts was Mr Big in that hierarchy. On reflection, and after discussion with my learned friends, I withdraw that suggestion ... my learned friends are correct in their complaint. It is not appropriate to argue that he is Mr Big and it doesn't actually matter the precise position he is [in] in the conspiracy, and the precise position in the hierarchy."

54. The question is nevertheless raised for us, and properly raised for us here, whether that original remark of counsel for the Crown has rendered the conviction of Roberts unsafe. Mr Kendal reminds us that Roberts, unlike the other defendants, was not in a position to put his character in issue, and invites us to say that the jury might have drawn from that a conclusion that he did indeed figure as the rarely seen guiding hand in the shadows.
55. It seems to us that only very rarely will the argument of counsel render a conviction unsafe; at any rate unless inadmissible evidence or some piece of information which would not otherwise be in evidence is introduced. Here the objection was apparently that this was a suggestion which ought to have been put. It is a little difficult to see who it could have been put to, since Roberts did not give evidence. The suggestion was apparently that it should have been put to Doyle. We are a long way from satisfied that anything needed to be put to Doyle beyond what was put to him, namely that Roberts kept his identity very close to his chest. However that may be, the second and important factor is that this problem, if it ever existed, was resolved and resolved sensibly. Counsel for both sides told the Recorder that the formula had been agreed. Counsel for Roberts specifically told him that he was entirely satisfied and that he was grateful to counsel for the Crown for the withdrawal which was coming, and then counsel for the Crown made the handsome apology that we have just recited. Roberts could not possibly have asked for more. He can only have benefited from that kind of climb-down on the part of the Crown at a late stage in the presentation of their argument. No one applied for the jury to be discharged, and indeed we should say that we cannot envisage that any application in these circumstances could possibly have succeeded.
56. In those circumstances, we are satisfied that, despite the various grounds of appeal which have been presented to us, these convictions are not unsafe and the appeals against conviction are accordingly dismissed.
57. We come to deal with the sentence appeals of Woolley and Paul. They raise entirely separate questions.
58. We deal first with Woolley. The defendants who were convicted at trial were all sentenced to 14 years' imprisonment, save for Roberts, whose sentence was 15 years. The reason for that was that Roberts had a previous conviction in 1998 for importing a Class A drug and had served a sentence of six years on that occasion. The Recorder, in sentencing the defendants who had been convicted, came to the conclusion that whatever the temptation might be to read between the lines and ascribe roles to different defendants, the evidence did not justify him ascribing an organising function to any of them. He contented himself with saying, as was plainly the fact, that Doyle was the link man between the two ends of the conspiracy.
59. In due course, at an adjourned hearing, the judge sentenced Woolley to 14 years also. He, however, had pleaded guilty at the outset not of this trial but of an earlier trial which had not reached a conclusion. When he had pleaded guilty, the judge hearing his plea had indicated, it seems in advance and properly, that it would be appropriate for his sentence to be reduced by 20 per cent in recognition of his plea. When the Recorder, having completed the second trial, came to the adjourned sentence of Woolley, he expressly followed, as he should have done, the indication that had been given by the earlier judge. It follows that applying that reduction for plea of guilty, the Recorder's starting point for Woolley must have been 17 and a half years, that is to say, three and a half years more than the 14 passed on most of the other defendants, and two and a half more than the sentence passed on Roberts.
60. In passing that sentence, the Recorder made it clear why. He said that it was plain that Woolley was in a key position and that he was the central figure in relation to the Derbyshire or operational end of the conspiracy. The Recorder concluded that Woolley was the only person to whom he could confidently ascribe, on the basis of the evidence, such a function. There might have been, and indeed for the Crown clearly had been, a temptation at an earlier stage to invite the conclusion that Roberts was an organising or drugs baron figure. But the judge had concluded, as had the Crown in the manner that we have already recited, that whatever suspicion there might be, the evidence could not bear the weight of that inference.
61. During the adjournment pending the sentence of Woolley, counsel for Woolley made two submissions in writing, which, we are satisfied, thanks to Mr Josse's careful recollection, he repeated to the Recorder when the court reconvened. Those were, first, that Woolley should be sentenced on the basis of no greater participation than anybody else, and secondly that, if the Recorder was minded to conclude that Woolley's participation was any greater than that of anybody else's, then the sentence should be adjourned for what was conveniently but broadly described as a Newton hearing.
62. Mr Josse repeated those submissions at the adjourned sentencing hearing. He coupled with them the suggestion that the Crown should be required to lodge a document, setting out why it contended that Woolley's participation was larger than that of any other defendant, and he invited the Recorder to adjourn and to give directions for a future hearing. What he did not do was to identify any issue of fact to which any evidence might subsequently go, any witness whom he wished to have called, or, save for his own client, any witness whom he himself wished to call. What seems to have happened is that, having heard that submission and having heard very briefly that the Crown resisted the suggestion that they should prepare a further document, the Recorder proceeded immediately to sentence. In the course of those sentencing remarks, he indicated that, in his view, there was no occasion for a Newton hearing.
63. Mr Josse's submission here is that, in those circumstances, Woolley was deprived of a hearing on evidence to which he was entitled, and that, for that reason and that reason alone, his sentence ought to be reduced to 20 per cent less than the 14 years which was imposed upon the defendants convicted after trial.
64. A Newton hearing is of course appropriate where a defendant disputes allegations of fact which are made by the Crown. Sometimes it may involve the evidence on which the Crown relies for those allegations being called by the Crown and challenged before the judge. On other occasions, the evidence is accepted, but the defendant advances an explanation for the evidence which he contends mitigates the inference which would otherwise be drawn from it, and in that event, he will normally be entitled to call such evidence, including his own, to advance the explanation, and that evidence will be tested and challenged in the usual way.
65. The initiative for seeking out such a hearing lies with the defendant. If a defendant wants a judge to hear evidence going to sentence, then he must, first of all, demonstrate that there exists an issue of fact to which evidence which may affect the sentence may go. Secondly, he must identify the evidence that he wants to be called so that he can challenge it, or that he wishes to call himself, as the case may be. The judge will then be in a position to decide whether a hearing is appropriate or not.
66. We should say that, ordinarily, if there is a material issue of fact, then the defendant is entitled to have the facts investigated by the calling of evidence. We should add also that, ordinarily, if the defendant has relevant evidence to give, he is entitled to give it. Too often, as it seems to us, there is a dispute as to the basis of plea which is not resolved but simply glossed over. A defendant who is making his mitigation is as entitled to call evidence, providing he can show it is relevant, as is a defendant who is defending himself at trial. Of course, he is not entitled to give evidence unless he can show that it will be relevant. He is not entitled to give evidence on immaterial matters. And if he gives evidence, he will be cross-examined and he takes the risk that, if he is disbelieved, the discount or reduction of his sentence that he might otherwise have had for pleading guilty is likely to be reduced or eliminated. All that we entirely accept.
67. The present case, however, was not one, as we understand it, in which any significant evidence on the part of the Crown was disputed. The Crown provided a written response to the submissions which had been made in advance of hearing by Mr Josse. They set out sentence by sentence in ten or eleven propositions the facts which were proved affecting Woolley. Mr Josse has explained to us today that with one minor exception, none of those facts could have been disputed. Those unchallengeable facts demonstrated that Woolley collaborated with Burr in the conversion of the lorry, provided the money which was taken to Spain to buy the drugs, recruited another local Derbyshire man who was not before the court, and, specifically, that he shepherded the lorry to Spain and was there to see it, if not loaded, ready to depart with the drugs back, and then returned to England in order to meet it as it arrived.
68. It follows that this was, as far as we can tell, not a case in which there was evidence which would have assisted the judge on sentence. Mr Josse has explained to us that he would have wished to call the defendant himself, but when pressed as to what Woolley might have been able to say, he was able to do no more than to tell us that Woolley would have wished to have advanced the argument that his participation, proved as it was, was no greater than anybody else's.
69. It was, we think, unsatisfactory that the question of whether the hearing of evidence was necessary was not dealt with more explicitly than it was. We do not attempt, without more information than we could properly have here, to investigate exactly how that came about and it may not matter. But we should point out that where the question of the hearing of evidence arises, it needs properly to be investigated. The judge needs to be told what evidence there could be so that he can decide whether it would assist or not, and then he needs to adjudicate properly on whether the hearing will take place or not. And if not, why not.
70. We, however, have addressed ourselves on the facts of this case to these questions. First, whether any evidence which the judge could or should have heard could have altered his sentence; and second, whether on the facts which are admitted and could not have been disputed whatever evidence was heard, the sentence which was imposed can be said to be either wrong in principle or manifestly excessive. In the end, it is apparent from Mr Josse's carefully made submissions, for which we are grateful, that the only evidence that Woolley could have given would not have been that he did less, but only that others did more. That could not have assisted him on his sentence at the time that the Recorder came to pass it.
71. Additionally, Mr Josse concedes, as he has to and properly does, that, on the admitted facts, a starting point of 17 and a half years for Woolley's participation in this case is not a sentence which is capable of being attacked. If in the end other defendants were fortunate that the evidence did not demonstrate the full extent of their involvement, but only that they were conspirators with an unidentified role, then that is a consequence of the state of the evidence. But it cannot render wrong the sentence that was passed on Woolley. We are perfectly satisfied that the sentence that was passed was a proper one and Woolley's appeal must, accordingly, be dismissed.
72. Paul was presented throughout by the Crown as Doyle's loyal assistant. There was, as we have indicated, the evidence of separation at meetings. That did not go to demonstrate that he was not a party to the conspiracy, but it did perhaps demonstrate the manner in which Doyle and Roberts conducted their discussions on no doubt critical matters without the need to involve Paul. There was no evidence to suggest in Paul's case any function in this conspiracy beyond that of assistance to Doyle.
73. On his behalf, Mr Nelson invites us to say that, in passing the same sentence on him as he did upon Doyle and upon Burr, who had converted the lorry, and upon Ward, who had assisted in shepherding the drugs in Spain, the Recorder did not sufficiently recognise the distinction which existed between Paul's function and that of those others. We think that there is substance in that submission, and we take the view that the proper course is to quash the sentence of 14 years and, in the case of Paul, to replace it with one of 12.
74. To that extent, his appeal against sentence is allowed.