England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2 November 2010

LORD JUSTICE GROSS:

1. On 16 April 2009, in the Crown Court at Liverpool, before His Honour Judge Boulton and a jury, the appellant (now aged 63) was convicted of conspiracy to evade the prohibition on the importation of Class A drugs (heroin). On 17 April 2009 he was sentenced to 18 years' imprisonment. He appeals against conviction by leave of the full court.
2. There were a number of co-accused, to some of whom we will make reference in due course, in particular Stephen Corke and John Brian Carroll.
3. In short summary the facts were these. In August 2004 the Revenue and Customs Investigations Unit covertly recorded conversations at an industrial unit in Liverpool from which they were able to deduce that there was a detailed and sophisticated scheme led by Mark Brown to import heroin into the United Kingdom concealed in the struts of specially constructed wooden pallets. Some conspirators visited contacts in Turkey, where the drugs were secreted in the compartments of the pallets, and others went to Holland to arrange regular purchasers of quad bikes as cover loads for the importation of 4.5 kilograms of heroin per pallet. The pallet factory was able to turn out 30 pallets per week. The recorded conversations included references to someone called "Sully". The appellant's name is Sullivan.
4. The gang avoided detection for more than two years until a seizure at Hull on 21 October 2006 when a sniffer dog gave a positive identification for drugs in a van driven by Peter Burke. A scanner showed abnormalities in the construction of the pallets carrying his load of quad bikes. When the pallets were dismantled they were each found to contain around 4.5 kilos of heroin. The total seizure of heroin from this load was the equivalent of 15.79 kilograms of pure heroin with a street value of almost £2 million.
5. An invoice from Motor Cross AAD found in the van led investigators to the proprietors of that business in Holland: Mr Petersman and Mr Von Wordragen. There had been 25 other invoices for the purchase of legitimate loads of quad bikes over the previous two years.
6. Initial descriptions of the men who had bought the quad bikes were taken from Mr Petersman in December 2006. He said that the man with whom he arranged the business gave his name as Pikey. He described him as a short man with short grey hair, about 1.55 metres tall who wore reading glasses. He described the second man as slightly older and around 1.85 metres tall, unkempt and thin. He estimated he was around 50 years of age and had short dark hair. He did not know his name.
7. In a statement given in June 2008 Mr Petersman stated that he had regular dealings with the same group of four Englishmen who purchased and transported goods from his premises. One man always paid for the goods in cash; a second man always arrived with him. He described the first man as white, aged around 57 years, with a full head of hair which was dark in colour but beginning to grey. He was about 1.6 to 1.65 metres in height and of average build but with the signs of a beer belly. He described the second man as white, aged around 63 years, taller and thinner than the first man, more athletic in build, around 1.85 metres in height, with receding hair and tattoos on both arms. He said that he would recognise both men again if he saw them.
8. In due course the prosecution submitted that Man 1 was Corke and Man 2 was the appellant.
9. Two other men arrived separately in a Mercedes Sprinter van and the first two men assisted them to load the goods into the van. The men transferred the goods onto their own pallets. On 20 October 2006 the men arrived to collect their consignment. They had purchased twenty mini quad bikes but could only take eight. They proposed to return the following day to collect the others but they never did so.
10. The appellant was arrested on 10 June 2008. On 9 July 2008 Mr Petersman attended a video identification procedure and identified the appellant as the man who loaded the pallets.
11. The prosecution case was that Corke and the appellant were the two men who regularly bought quad bikes in Holland as cover loads as part of the conspiracy. They relied on Mr Petersman's identification of the appellant and the coincidence of the appellant's trips with those of Corke, which also coincided with the issue of invoices by Motor Cross AAD for quad bikes. Reliance was placed upon the appellant's close connection with Mark Brown and James Carroll, in that he let them register a house in his name.
12. The defence case was that the identification of the appellant by Mr Petersman was wrong and unreliable. Reliance was placed on the inconsistencies in the descriptions given by Mr Petersman in his various statements. The appellant gave evidence that he had done some work with Paul Brown for Mark Brown and James Carroll (the alleged leader and second in command of the conspiracy) on their houses. He had gone to Holland to renovate properties. He had nothing to do with the importation of heroin.
13. The issue for the jury in a nutshell was whether they were sure that the appellant was a party to the conspiracy; specifically whether he was one of the men who purchased quad bikes in Holland to be imported into the United Kingdom on the pallets in which heroin was concealed.
14. At his trial the appellant gave evidence. He said that he knew the co-accused Paul Brown Senior. He had started to work with him on houses belonging to Mark Brown and James Carroll. In late 2003 he had gone to Holland to renovate properties. He went with Paul Brown in a van. He was dropped off in Amsterdam and went to the site. There were problems about the delivery of materials and he flew home. He then received a call from "the boss" asking where he was. He flew out again and returned a couple of days later with Paul Brown in the van.
15. Later, in November he went back out to work in Holland. Paul Brown introduced him to Corke. He had nothing to do with the importation of heroin. He knew nothing of the pallets and the secret compartments. The person referred to as "Sully" on the covert recording was not him. He was paid cash-in-hand for the work. The flights were paid for by his employer.
16. A house was indeed registered in his name. James Carroll had cash flow problems. The appellant had been paid £500 for his trouble. He had not had a bank account since the 1980s.
17. When he was interviewed he answered "no comment" because he did not want to implicate anyone in the conspiracy. It was a serious matter and he was shocked.
18. In cross-examination the appellant was questioned about each of the trips he made to Holland. He could not remember why he booked a return ticket when he came back the first time. It was a misunderstanding. Each of the eight instances of him taking the same flights as Corke were pure coincidence. Mr Petersman was wrong when he picked him out at the VIPER parade. At first he thought that it was a mistake; now he thought that it was corruption on the part of the officers.
19. The evidence of Mr Petersman to which we have referred had been adduced at trial by way of hearsay, pursuant to section 116 of the Criminal Justice Act 2003 (the provision for a witness in fear).
20. The grounds of appeal are these:

(1) The judge erred in allowing Mr Petersman's statements to be read to the jury pursuant to section 116 of the Criminal Justice Act 2003.

(2) If, however, the judge had not been in error in doing so, then the directions in the summing-up on this part of the case were inadequate.

Both submissions were to be considered in the context that the procedures adopted by the police in identifying the appellant were flawed.

21. Section 116 of the Criminal Justice Act 2003, insofar as material, provides as follows:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matters stated if --

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction; and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are:

....

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings either at all or in connection with the subject matter of the statement and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice having regard --

....

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence)."

22. We turn to trace the history of Mr Petersman's evidence and the route by which it came to be admitted. We start with Mr Petersman's initial statement of 29 December 2006 ("the December 2006 statement"). The descriptions in the December 2006 statement do not, as they seem to us, assist in identifying the appellant.
23. Next, we come to the statement of 10 June 2008 ("the June 2008 statement"). The prosecution case was that Male 2 in the statement was the appellant and that Corke, who after the trial admitted his guilt, was Male 1. Mr Petersman spoke of regular dealings with these two men in 2006 and that they may well have been the same men, amongst others, with whom he had dealt in prior years. In a passage to which Mr McLachlan for the Crown drew our attention this morning, in this statement, Mr Petersman spoke of males 1 and 2 assisting in the loading of the pallets.
24. On 9 July 2008 Mr Petersman attended a video identification procedure held in Rotterdam where he identified the appellant as No 6. According to Mr Petersman, the appellant was the man who had loaded the pallets. Pausing there, the demeanour of Mr Petersman in the video we have seen of this procedure was striking. In short, he was confident and relaxed.
25. In a statement of the same day, 9 July 2008 ("the July 2008 statement"), Mr Petersman said this:

"At 9.51 hours on Wednesday 9 July 2008 I attended at Rotterdam Police Station, where I saw a video film of nine persons. I picked out number SIX who I can positively identify as being the person who I knew from 2001/2002 (unsure of exact date) to around 10am Friday 20 October 2006 at Motorcross Aad .... In 2001/2002 this male arrived at my company and purchased a quantity of quad bikes. I then had regular face-to-face meetings with him regarding purchases of merchandise up to October 2006. I was also involved in arranging the transportation of the merchandise purchased. The person I have identified was the person I saw stacking the pallets.

I have not seen any broadcast or published films or photographs or any descriptions of suspects relating to the offence."

It will be noted that the identification is based not on a single glance but on Mr Peterman's evidence of regular contact with the appellant.

26. The history moves on to 2009. Following a voir dire on 12 March 2009 at which two Dutch police officers, Detective Inspectors Cloo and Van Soerst, gave evidence, the judge ruled on 13 March 2009 ("the 13th March ruling") that Mr Petersman was in fear and that his evidence regarding the identification of the appellant could be read under section 116 of the 2003 Act. In that ruling the judge had regard to the considerable experience of the Dutch police officers and to the view that they had formed as to Mr Petersman. As summarised by the judge, their evidence was as follows:

".... essentially they formed the view as a result of what he [Mr Petersman] said to them, firstly, that he was not prepared to come; secondly, that he had been threatened; thirdly, that he knew that the other witness [his partner], who at that stage was thought was going to be called in this case had also been threatened and the nature of the threats was such that he was in fear. That was their view and they described to me in some detail the nature of the fear and the genuineness of the fear in their view ...."

27. The original evidence from the officers was set out by the judge in the course of the summing-up and likewise merits quotation:

"He told us that approximately two weeks ago on a Tuesday he also received a phone call in which it was said that they could find him. They knew that he had spoken to the police force and that he should not talk to the police any more. We asked him who he had spoken to on the telephone. He indicated that he suspected that this person was from Amsterdam. He emphasised that he knew that this matter concerned an organisation in which only a part had been apprehended. He emphasised he did not want to have anything to do with us any more. They could find him. He indicated that he had heard that his ex-colleague Fred Von Wordragen had also received a phone call."

28. In the light of this evidence the judge was satisfied that Mr Petersman was in genuine fear and he therefore went on to consider the provisions of section 116(4). In the event, the judge ruled that the evidence was admissible by way of hearsay. He said this:

"The net result is that I am satisfied on the evidence available to me that this witness is in fear and that fear is a genuine one and therefore I have to consider whether under section 116 the evidence should be admitted. .... I have to look at the difficulty that the defence would have to challenge the evidence that he would give in relation to the identification of Mr Sullivan and it seems to me that here is no risk of unfairness in this case because there is available to the defence and to the jury the tape of the VIPER procedure and indeed all those officers who took part in the parade and the setting up of the VIPER tape may be called to court and may be challenged and anything in Mr Petersman's original statements, which are not acceptable to the defence can be challenged by showing inaccuracies, if they are, in comparison with the actual people on the parade."

29. That ruling was given on 13 March 2009. The defence moved swiftly, dispatching a private investigator to interview Mr Petersman. On 18 March he did so. The interview resulted in a video-recording which we have viewed today. As appears from the video and the transcript, a number of different things were said by Mr Petersman. He spoke of seeing prior photographs. He said that he was not in fear; that he had a business to run; that he was too busy; and that he had given the police enough assistance. He said that he had not been threatened. What he had said to the Dutch officers had been twisted. He had not said at the identification procedure, "That's him". Instead he had said, "It looks like him". He added this, though, when asked how often he had seen the man:

".... they used to come. Then they didn't come for two years and then there they were again. They dropped in and bought stuff. Sometimes once a month, sometimes every three months. .... They just came in and said we want such and such and then I ordered it and then two to three days later they'd come and collect it."

30. It is correct to say that in that interview Mr Petersman said things which were not the same as that which he had said in his earlier statements. However, there are two particular features to which we would draw attention at this stage:

(1) Insofar as he said that he had not said at the identification procedure, "That's him", he was mistaken. It is clear from the video evidence of the procedure that that was precisely what he had said, and, moreover without any hesitation.

(2) It can be seen from the private investigator's video that Mr Petersman's demeanour was utterly different to that displayed at the VIPER procedure. We do not think for a moment that we exaggerate if we say that his demeanour on this second occasion showed a man in no little fear.

31. On 23 March 2009 the matter came back before the judge. He was invited to reconsider the 13th March ruling in the light of the defence video. The judge, who by then had viewed the recording of Mr Petersman on the VIPER procedure, viewed the recording of the private investigator's interview as well. He ruled shortly, without repeating the matter or the detail of section 116, that there was nothing to suggest that the 13th March ruling was other than correct.
32. We turn to the rival cases. On behalf of the appellant, Mr Biddle, who had only come in to the trial at the close of the prosecution case when the appellant parted company with his original legal team, advanced the following submissions: It was not clear whether the December 2006 and June 2008 statements referred to the same men. It was not clear from the earlier statements who was doing what. There was nothing in those statements to suggest that the appellant was the man loading the pallets. There was confusion about the suggestion as to the man who had tattoos. There were other contradictions or discrepancies or anomalies between the various statements made by Mr Petersman. Mr Petersman had not said in terms to the Dutch officers that he was afraid; that was simply their impression. Mr Petersman was not given the opportunity to give evidence by way of video-link. Mr Biddle, at least in writing, placed some considerable reliance on the evidence obtained by the Dutch private investigator. On all the evidence, whether considering the 13th March ruling or 23rd March ruling, or the two together, the judge had been wrong to conclude that Mr Petersman was in fear. In any event, the admission of his identification evidence by way of hearsay was not in the interests of justice under section 116(4). The judge had not addressed the "many anomalies and unusual features" of the case. As Mr Biddle put it this morning, "all these matters were the stuff of cross-examination, and that was not possible as the evidence was adduced by way of hearsay".
33. In writing (though, realistically, not developed further orally today) Mr Biddle said that if the judge had been correct to admit the evidence, then his directions had not been sufficiently careful or detailed. He had not descended to the particularities of the inconsistencies and anomalies in the evidence. The judge had been selective in some parts, but had provided too much comment and opinion in others. We hope that is a short but fair summary of the structure of Mr Biddle's most helpful submissions.
34. The Crown's riposte was robust and detailed. In his submissions Mr McLachlan underlined that the sole test for this court was whether or not the conviction was safe. If the court was satisfied that, despite any misdirection, or any irregularity in the conduct of the trial, or any fresh evidence, that the conviction was safe then the court would dismiss the appeal. In this regard Mr McLachlan underlined that the evidence against the appellant fell into five categories. Of those five, identification evidence was but one. The categories were these: (1) links with the other defendants; (2) the probe; (3) travel; (4) interviews under caution; and (5) identification evidence.
35. So far as links with other defendants were concerned, there was a plain link between the appellant and the co-defendants Mark Brown and James Carroll in that they had purchased a property which was registered in the name of the appellant and remained so registered. That demonstrated the close relationship of trust between the two principal conspirators, Brown and Carroll, and the appellant.
36. So far as concerns the probe, it was the prosecution case that the covert recording had picked up a considerable amount of conspiratorial talk. Although the appellant was never observed at the industrial unit, there were a number of references to "Sully" on the probe. It is unnecessary to set those out in detail. They show him in Holland. It is the prosecution's case that when the other conspirators were talking in this manner, unaware that they were being listened to, they referred to the appellant.
37. The third category, travel, was a feature of the prosecution case. The overlap between the travels of the appellant and Corke was striking. In his summing-up the judge remarked on this at least twice. He said:

"The prosecution say that Sullivan is number 2, visited Motor Cross AAD on those many occasions. The prosecution say that number 1 is .... Mr Corke, because an analysis of the travel schedules shows that not only are these two visiting Amsterdam at the same time as the issue of invoices from Motor Cross, but in the company of each other.

Travel records of Easyjet flights and P&O, and other channel crossings, Liverpool to Amsterdam, Dover to Calais, Hull to Rotterdam, painted the picture. Sullivan was established to be in Amsterdam to coincide with each and every invoice from Motor Cross AAD, flying home soon after its issue. Corke was shown to be making the same, or similar trips to those of Sullivan, the two were almost inseparable, being shown to be on the same flight at whatever time of day on eight occasions. ...."

Later in his summing-up, referring to the cross-examination of the appellant, the judge said:

"He was taken through by the prosecution each of the trips one after the other and it was put to him: 'Hang on, when you came back that time, having gone out in the van with Paul Brown, you came back but you booked a return'. He said: 'No, I was under the impression I booked a weekly return. I can't recall why I changed it, it was all a misunderstanding. As to all these flights together, they're all a series of coincidences.' Every single instance, eight in total, of his taking exactly the same flight as Corke he gave the same answer: pure coincidence, pure coincidence, pure coincidence, eight times."

38. As to interviews under caution, Mr McLachlan in his submission reminded us that the appellant had been interviewed under caution on six occasions. In the first interview he answered all questions concerning his personal circumstances. However, when he was shown photographs at the end of the interview he made "no comment" answers in relation to questions concerning who the individuals were. In the other interviews he answered "no comment" to all questions put to him concerning his travel to the continent. He further stated that he had never heard of Motor Cross AAD. He agreed to go on an identification parade. In the last interview he admitted that in 2000, while working for James Carroll, he had been asked to put his name on a property deed for him and had done so.
39. Mr McLachlan's submission was that both the 13th March and 23rd March rulings made by the judge had been correct. Mr McLachlan underlined that it was open to the defence to highlight matters in Mr Petersman's original statements showing inaccuracies with later statements.
40. So far as any other criticisms of the VIPER procedure are concerned, there was nothing to them. Matters such as the stubble condition of the appellant when he was identified and the manner in which the procedure had been held had been raised in the original written grounds of appeal. In his written response Mr McLachlan dealt one by one with each of those. On the judge's two rulings, Mr McLachlan's submission was that the 23rd March ruling should be read together with the ruling of 13th March.
41. We come to our conclusions. Hearsay evidence is never easy, as recent cases on section 114 of the Criminal Justice Act 2003 show. Applications should be approached with care and, in our judgment, on whatever basis, should never become routine. If, however, a witness is not available through fear, that is an almost paradigm case for the application of the provisions of the 2003 Act. For that reason, no doubt, section 116(3) speaks of giving to subsection (2)(e) a broad meaning. But it is also right, and the judge here so reminded himself, that there is a need for caution against the back-door introduction of hearsay evidence when the conditions of the section are not satisfied. Even if the matter does come within subsection (2)(e), the evidence is not to be admitted unless it would be in the interests of justice so to do. One of the considerations which necessarily arises, and again of which the judge reminded himself, was the ability of the appellant to challenge that evidence.
42. Was the decision on 13 March one which the judge was right or entitled to reach? In our view he was plainly right to reach that conclusion. He was amply entitled to take into account the evidence of the experienced Dutch police officers as to the fear under which Mr Petersman was labouring. It certainly cannot matter whether or not in his conversation with he Dutch officers Mr Petersman had said he was threatened or he was in fear in express terms. That could not be a requirement of the section, as a moment's reflection must demonstrate.
43. We turn to the ruling of 23 March. Was the judge wrong not to reverse his previous ruling? We bear in mind at once that the judge had seen more of the case by this stage. Had we only read the material on the papers, we would have been inclined to say that the judge was entitled to balance the transcript of the interview by the private investigator with the other evidence that he had seen and heard and come to an appropriate decision. We would have been disinclined to say that he could not reach the conclusion that his decision of 13 March remained correct.
44. However, any doubt we might have had in that regard is dispelled when we see the interview conducted by the private investigator. To underline and repeat, Mr Petersman was by then a man in obvious fear.
45. Against that background we turn to the interests of justice. Even if Mr Petersman was in obvious fear, we must still consider section 116(4). For his part, the judge had had regard to this in his ruling on 13 March. For our part, we would not fault him for not going over the same ground on 23 March. The two rulings must be read together. The second should not be read in isolation from the first. In our judgment, the judge again reached a correct conclusion. There was ample scope for the defence to have a "field day" with submissions on the inconsistencies in the material and we daresay that they did so. To recap, they had all the VIPER procedure witnesses available; they had the DVDs of the procedure; they had all Mr Peterman's statements with their anomalies and inconsistencies; and the defence DVD was there for the court and the jury to consider.
46. Having reached those conclusions, we take what remains briefly. Were the directions adequate? Yes, we answer without hesitation. The judge gave appropriate identification directions, bearing in mind that the basis for Mr Petersman's evidence was recognition over a period of years rather than anything by way of a fleeting glance.
47. What of other complaints? Mr Biddle will, we hope, forgive us if we say that they do not by themselves go anywhere. Questions such as the interview procedure, the state of the appellant's beard and so on do not add much.
48. Though we are far from saying that the conviction would have been safe even if the decision on hearsay had been otherwise, we are fortified in our conclusion by the intrinsic strength of the prosecution case. There was weighty evidence of association, of the reference to "Sully" on the probe, there was the remarkable coincidence in travel arrangements to which we have referred, and there were those interviews from which no doubt inferences could be drawn. The overall impression is of an immensely strong prosecution case. But that is by-the-by because in our judgment the judge was amply entitled to admit Mr Petersman's evidence by way of hearsay and his directions were perfectly adequate.
49. It follows that this appeal must be dismissed, but we would not wish to leave the case without paying tribute to the careful and succinct arguments of both Mr Biddle for the appellant and Mr McLachlan for the prosecution.

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