England and Wales Court of Appeal (Criminal Division) Decisions

COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HHJ KHAYAT QC
T20078187

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2010

Lord Justice Jackson :

1. This is an appeal against the appellant's conviction on one count of conspiracy to supply a class A drug, and on two counts of conspiring to acquire criminal property. The facts giving rise to this litigation are as follows. There was a Serious and Organised Crime Agency drugs and money laundering investigation called "Nebula 1". Nebula 1 involved John Watson, Barry Green, Deryck White, Mark Day, and two customers, Brent Dwyer and Paul Austin, along with one Darren Cotterill in The Hague. Mr Cotterill was a contact of Watson's who obtained cocaine and arranged shipment but was not amongst those tried.
2. It was said that in April 2007 there were two meetings between the appellant and a man called James Slade on the one hand, and two Nebula 1 members on the other hand. The appellant was observed by officers at the first meeting on the 20^th April, and it was as a result of this that he came into the frame. At the second meeting on the 24^th April, a bag (whose contents were never discovered) was delivered by one of the men to the person the police claimed was the appellant (though the identification of the appellant on this date was disputed).
3. The Nebula 1 conspiracy came to an end on 29^th May 2007. On that date White travelled in a transit van to Orpington, and was met by Day and then Watson. They were arrested, and 25kg of cocaine was found in the transit van. Text messages on Watson's phone showed that Cotterill wanted 962,000 Euros. About fifty minutes later, Green left his house and was arrested with that sum.
4. Watson, Green, White, Day, Dwyer and Austin were eventually convicted in relation to conspiracy to supply cocaine and conspiracy to money launder.
5. The present case arose primarily from surveillance and telephone billing evidence spanning the period June to September 2007. That showed meetings and a large volume of telephone contact between the appellant and his co-accused. The present case was also based upon what the police found at various searches carried out after the arrest of the accused.
6. The key events were as follows. On 27^th March 2007 the appellant rented a white VW "Caddy" van which he was not seen using himself but which was used by his co-accused Leaper. Passing over the events of April, which we have already mentioned, we come on to 12^th June. On that date the appellant was observed, inter alia, having a very short meeting with co-accused Downes. He then visited a branch of Carphone Warehouse where he bought two phones. One of these phones, ending in the numbers 675, was over the following fortnight to become his main phone and was to be used to make contact with Smith, Leaper and someone called "Bonj", who appeared to be connected to the events which came to an end on 30^th June.
7. On 30^th June, a handover took place in Bermondsey during which co-accused Smith exchanged 13.8kg of boric acid with cash brought by Leaper. Following the exchange they were both arrested.
8. Leaper was found to have £891.20 on him and Smith £616.76. Each had two mobile phones. Leaper was interviewed and bailed. Smith suffered a diabetic attack and was taken to hospital before being re-arrested on 12^th September and then interviewed.
9. On 1^st July, Leaper's address was searched. Inter alia, the police found two bags of cocaine weighing 0.52g and 0.11g, a box for scales, and a pestle and mortar containing traces of cocaine.
10. On 7^th September, the appellant met with Downes at the latter's flat where he collected a black boot bag which he put in Downes' car. They drove off in the car, and were stopped and arrested. They gave false addresses. Over £40,000 was found in the black boot bag in Downes' car, and Downes also had £440 cash on him, as well as a Rolex watch valued at £4,500. Also in the boot of his car were metal bars and a baseball bat.
11. A search of the appellant's address revealed in the garage a plastic bag containing a total of 1kg of boric acid, and 0.45g of powder containing cocaine was found on a bedside table.
12. A search of Downes' address revealed £54,200 in forged sterling notes, £5,590 in sterling notes and 83,515 Euros. Also found was an 83.8g block of cannabis resin, a note of an address and telephone number in Holland, and a further eight mobile phones, together with a £9,000 Rolex watch.
13. In October and November 2008 the appellant and his co-accused stood trial at the Snaresbrook Crown Court on an indictment containing seven counts. On count 1 the appellant, Leaper and Smith were charged with conspiring together and with others to supply class A controlled drugs, namely cocaine, contrary to section 4(1) of the Misuse of Drugs Act 1971, between 1^st January 2007 and 8^th September 2007. On count 2 the appellant and Leaper were charged with acquiring, using or having possession of criminal property, namely a quantity of bank notes and 13.8kg of boric acid, contrary to section 329(1) of the Proceeds of Crime Act 2002. This offence was said to have been committed on or about 30^th June 2007. Count 3 concerned Smith alone and we can pass over it. On count 4 the appellant and Downes were charged with acquiring, using or having possession of criminal property namely a quantity of bank notes, on 7^th September 2007, contrary to section 329(1) of the Proceeds of Crime Act 2002. Counts 5 to 7 all related to Downes alone, they were offences of money laundering and we can pass over those three counts.
14. At trial the prosecution case was that whilst no significant quantity of drugs had been found, the accused were part of a business enterprise going beyond mere possession. In relation to the April meetings, the prosecution argued that the appellant was driving in a highly surveillance aware manner; and that the bag delivered to the person said to be the appellant was obtained and handed over in unusual circumstances. It was suggested that the bag contained money rather than drugs.
15. The convictions of Watson, Green, White, Day, Austin and Dwyer were relied upon to show the context of the April meetings. There was also evidence concerning the activity of Watson, Green, White, Day, Austin and Dwyer both before and after the April meetings. We shall return to that evidence a little later in this judgment.
16. The prosecution said that the exchange on 30^th June 2007 was not carried out in the course of any legitimate business involving chemicals and there was no business documentation relating to it. The non-legitimate use for boric acid was as a cutting agent for cocaine. The circumstances of the obtaining of this boric acid made it plain that it was paid for with the proceeds of crime, and that its planned use was illegitimate. Whilst the appellant was not present at the exchange, the presence of boric acid at the appellant's home linked him to the activities of Smith and Leaper on that day; indeed the prosecution said there was evidence that the deal was controlled by him.
17. No legitimate reason could be found for the amount of money found in the black bag in Downes' car, which was clearly being transported somewhere for delivery, nor in his house. He had no legitimate income nor was he claiming benefits. It was said that the Euros found related to purchasing power in mainland Europe, and that the quantity showed that the banking system could not be used. It was said that the fact that much of the sum was in 500 Euro notes was significant because these notes were small in size (smaller than £50 notes) and so easily concealed. Telephone schedules showed a volume of calls between the accused, which the prosecution alleged was inconsistent with mere friendship. Furthermore, the fact that the appellant had given incorrect personal details when buying the two phones from the Carphone Warehouse meant that the two phones could not be attributed to him. Indeed, Downes ended up with some eleven phones over a very short period of time. Downes' previous conviction in Belgium for drug trafficking went to his knowledge of the criminality of the money and rebutted his assertion of innocent association with it. It was said that the baseball bat and the metal bars were in Downes' car because carrying large amounts of currency and/or drugs would necessitate being able to protect oneself.
18. Whilst very little of the factual evidence adduced by the prosecution was disputed, the defence case was that there was no criminal element to any of the activities observed. The principal allegation of fact, which was disputed by the defence, was the allegation that the appellant was the man whom the police officers observed at the incident or the meeting on the 24^th April. There was no dispute that the appellant was the person whom the prosecution observed on the 20^th April. The appellant denied knowing Watson, Green, White, Day, Dwyer or Austin. The appellant said that he was a good friend with Downes. The appellant said that he knew Smith and Leaper. The appellant said that Leaper was using the appellants' Caddy van because the appellant was hiring it out as a way of mitigating his losses after the courier business, for which he had hired that van, failed. The appellant said that he had no use for the van and he was trying to recoup his money. Accordingly, he rented it out to Leaper. The appellant said that he did not know until his arrest that the powder in his garage was boric acid. He had thought that he was buying that powder as a supplement to help weight loss and muscle building. He must therefore have been cheated. We will not summarise the details of the defences of the other defendants, since those matters are not directly relevant to the present appeal.
19. At the end of the trial, the appellant was convicted on counts 1, 2 and 4. The conviction of the appellant on counts 1 and 2 was unanimous. The conviction of the appellant on count 4 was by a majority of 11 to 1. The appellant was sentenced to 11 years imprisonment, less 73 days spent on remand.
20. The other defendants were convicted on a number of counts and sentenced to terms of imprisonment.
21. The appellant was aggrieved by his conviction. Accordingly, he applied for leave to appeal on six separate grounds. The first ground of appeal was wrongful admission of evidence. The second ground of appeal was failure to remedy misdirection relating to the defence statement. The third ground of appeal was misdirection on adverse inferences from silence at interview and special warnings. The fourth ground of appeal was misdirection on identification evidence. The fifth ground of appeal was misdirection on good character. The sixth ground of appeal was judicial misconduct. The single judge gave leave to appeal on grounds 1, 3, 4 and 5. The single judge refused leave to appeal on grounds 2 and 6. At the hearing on 19^th March, the appellant pursued his appeal on grounds 1, 3, 4 and 5. The appellant also renewed his application for leave to appeal on grounds 2 and 6.
22. We turn first to ground 1, namely the alleged wrongful admission of evidence. The prosecution put before the jury extensive evidence given by surveillance officers concerning the conduct of the appellant and his co-accused between late March and early September 2007. In respect of the first part of that period (namely between 20^th March and 29^th May) there is also an amount of evidence concerning what the Nebula 1 defendants were doing.
23. The appellant contends that much of this surveillance evidence relating to Nebula 1 defendants is inadmissible. The appellant submits that this amounts to an attempt to prove guilt by association.
24. Ms Janice Brennan who appears for the appellant, advances as her first argument that it was not open to the prosecution to adduce any evidence concerning the activities of the Nebula 1 defendants because they were not named on the indictment as being co-conspirators. We do not accept this argument. There were, on the prosecution case, two meetings between the appellant and the Nebula 1 defendants. The prosecution say that drug dealing was the purpose of those two meetings. It does not follow from this that the appellant and his co-accused together with the Nebula 1 defendants were all part of a single conspiracy. It was perfectly possible that there were dealings between two groups of conspirators. The indictment in the present case asserts that the appellant conspired with Leaper, Smith and others to supply class A drugs. In our view, that formulation of count 1 was sufficient. The prosecution was entitled to adduce evidence of the encounters on two occasions between the appellant and the Nebula 1 defendants, namely on 20^th and 24^th April 2007. The prosecution was entitled to assert that those meeting were for the purpose of drug dealing, without necessarily asserting that the other parties to the meeting were involved in a conspiracy with the appellant.
25. Ms Brennan did not place undue emphasis on her argument relating to the wording of the indictment. Ms Brennan's real complaint on ground 1 was not that there should have been no surveillance evidence concerning the Nebula 1 defendants, but that the surveillance evidence as adduced was too extensive. Ms Brennan accepted that the convictions of the Nebula 1 defendants were rightly placed before the jury. Ms Brennan also accepts that the prosecution was entitled to call evidence concerning the movements and actions of the Nebula 1 defendants on the 20^th and 24^th April 2007. Those were the two dates when (on the prosecution case) the appellant had dealings with certain of the Nebula 1 defendants. Ms Brennan objects however to the detailed evidence which was adduced about the Nebula 1 defendants on dates other than the 20^th and 24^th April. Ms Brennan submits that such evidence was extensive and prejudicial.
26. Mr Andrew Marshall for the prosecution submits that the surveillance evidence about the Nebula 1 defendants before 20^th April and after 24^th April was necessary to provide context. It shows what those defendants were doing on the two key dates in April. It also shows the character of the encounters which took place between the appellant, and the Nebula 1 defendants, on those two dates in April.
27. With these submissions in mind, we have re-read the schedule of events upon which the prosecution relied at trial. It can be seen upon re-reading the schedule that the evidence concerning the Nebula 1 defendants has been strictly limited. The greater part of that evidence is focussed upon the period just before and just after the meetings in April. There is also a short summary of events leading up to the arrest of the Nebula defendants in May. It seems to us upon careful study of that schedule that the evidence adduced concerning the movements of the Nebula 1 defendants and concerning the numerous telephone conversations between the Nebula 1 defendants was all necessarily adduced in order to provide immediate context for the evidence concerning the movements of the Nebula 1 defendants on the 20^th April and 24^th April when, on the prosecution evidence, there were encounters between the appellant and the Nebula 1 defendants. In our view the judge rightly admitted that evidence and we reject the first ground of appeal. In any event, in the light of the common ground as to the admissibility of the evidence concerning the 20^th and 24^th April, 2007, there can be no or no realistic question of the relatively limited evidence going to the Nebula 1 defendants on other dates rendering the conviction unsafe.
28. We turn now to the second ground of appeal, namely failure to remedy misdirection relating to the defence case statement. On 30^th October 2008, during the re-examination of the appellant, it emerged that the defence case statement had not been signed by the appellant. The defence case statement had been signed by the appellant's solicitor. It also emerged that the appellant had not previously seen the defence case statement. It was also made clear that the defence case statement reflected the instructions which, at the material time, the appellant had given to his solicitors. Both the prosecution and the judge expressed surprise and displeasure at this state of affairs. The prosecution suggested in the presence of the jury that the defence solicitor should attend. There was subsequently legal argument, in the absence of the jury, concerning the position relating to the defence case statement. Ms Brennan on behalf of the appellant pointed out that although it was good practice for a defendant to sign his case statement, that was not required. In due course, the judge gave a direction to the jury, in agreed terms, in order to rectify the mistaken impression which had been given to the jury on 30^th October. The direction reads as follows:

"When this matter about the defence statement arose I indicated that a defendant was required under the rules to sign his defence statement. In fact the law does not require a defendant himself to sign his defence statement. It is good practice for the solicitor to obtain the signature of the defendant on the defence statement because it confirms that the defendant's agreement with the contents of the document drafted on his behalf by the solicitor. In this case the defendant does not deny that the contents of the defence statement reflect the defendant's instructions which he gave to his solicitor- he simply denies both that he has seen the document before and that the signature is his."

29. It is clear that the jury were interested in this particular point because, before the judge gave his remedial direction, the jury had sent a note asking whether the defendant's solicitor was going to be called to explain the position about the defendant's case statement. Nevertheless it seems to us clear that the direction given by the judge, in the terms which we have just set out, clarified the position and substantially undid any damage which may have been caused by the exchanges on the 30^th October. Although no transcript is available, we are told that when explaining that the prosecution could not call for the defence solicitor to attend, the judge said that prosecution counsel wanted to get the matter off his chest. The single judge when considering this ground of appeal wrote as follows:

"I am not persuaded that the debacle over the DCS adds to your grounds. It was unattractive but was put right and since you do not suggest that it was not your document there is little if anything in the point."

30. We agree with that analysis by the single judge. The renewed application for leave to appeal on ground 2 is refused.
31. We turn now to the third ground of appeal, namely misdirection in respect of adverse inferences from the appellant's silence at interview and in respect of special warnings. Section 34(1) of the Criminal Justice and Public Order Act 1994 provides as follows:

"34. –(1) Where, in any proceedings against a person for an offence, evidence is given that the accused –

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or

(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact[; or

(c) at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact],

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection(2) below applies."

32. Section 34(2) provides that in the circumstances described in section 34(1) the court or the jury in determining whether the accused is guilty of the offence charged may draw such inferences from the failure as appear proper.
33. The appellant made no comment in his interview following arrest save that in respect of one or two unimportant matters the appellant volunteered certain information. The judge therefore had to direct the jury as to adverse inferences which may possibly be drawn from the appellants "no comment" interview. On pages 26 to 29 of the summing up, the judge gave the jury a standard direction concerning the effect of section 34 of the 1994 Act and concerning the jury's entitlement, if they saw fit, to draw adverse inferences from silence in interview. Ms Brennan makes no complaint about the adequacy of that direction. Later in the summing up the judge turned to the matters which the appellant might have mentioned in his interview, but failed to do so because he said no comment in answer to relevant questions. The relevant part of the summing up reads as follows:

"As far as Daniel Davis, it is his failure to account for his presence, or involvement on 20^th April, 24^th April, 12^th June, that is Bermondsey, 30^th June and 7^th September. So, he failed to account for any of those matters and then all the circumstances leading up to and including the events of 30^th June, that is that. Then the obtaining of the '675' phone number, because that is the one they caught. The hiring of the Caddy van, which he did not say in interview, clearly, because he said nothing. His knowledge of the co-defendants. The contents of the bag on 7^th September and the surrounding arrangements. The boric acid from the garage that he had. Where it came from. What was the purpose of it? Where was it going to? And about his income and his work, because he said he was a plumber when giving interview, or part of the plumbing business. So, all these are matters that he could have, but chose not to answer."

34. Ms Brennan contends that the matters set out by the judge on pages 93 and 94 of his summing up were not facts relied upon by the appellant in his defence and they ought not to have been put before the jury on this basis.
35. This ground of appeal turns upon the meaning of the phrase "any fact relied on in his defence" in section 34(1) of the 1994 Act. A number of authorities have been cited to us in relation to this question, of which the most important is the decision of the House of Lords in R v Webber [2004] UKHL 1; [2004] 1 Cr App R 40. In that case the appellant did not give evidence. However, the appellant's counsel adopted certain matters as part of the defence in his closing speech. The judge gave a direction under section 34 of the 1994 Act and the appellant complained about that direction in his grounds of appeal. The appeal was dismissed. In the House of Lords, Lord Bingham giving the decision of the Appellate Committee said this:

"33. Since the object of s.34 is to bring the law back into line with common sense, we think it clear that "fact" should be given a broad and not a narrow or pedantic meaning. The word covers any alleged fact which is in issue and is put forward as part of the defence case: if the defendant advances at trial any pure fact or exculpatory explanation or account which, if it were true, he could reasonably have been expected to advance earlier, s.34 is potentially applicable. When directing the jury in this case the trial judge made repeated reference to "fact or matter" which is consistent with the reference to "something" in the caution and in our view expresses the meaning of the subsection.

34. We consider that a defendant relies on a fact or matter in his defence not only when he gives or adduces evidence of it but also when counsel, acting on his instructions, puts a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case. This is so whether or not the prosecution witness accepts the suggestion put."

36. All of the matters identified by the judge on pages 93 and 94 of his summing up had been the subject matter of questions put to the appellant in interview. When the appellant came to give his evidence, although he skirted around certain of the topics, it was his case that all of his activities in the period between January and September 2007 had an innocent explanation. The appellant had not been engaged in any conspiracy to supply controlled drugs. With the exception of the identification of the appellant on 24^th April 2007, the appellant did not dispute the accuracy of what the surveillance officers asserted that the appellant and his co-accused had been doing during the relevant period. It seems to us that all of the matters enumerated by the judge constituted "facts relied on in his defence" for the purpose of section 34 of the 1994 Act, as that section has been interpreted by the House of Lords in Webber. We do not therefore accept that criticism of the summing up.
37. Ms Brennan makes the further criticism of the trial judge that he failed adequately to deal with special warnings under section 36 and 37 of the 1994 Act. We must confess that at first blush this is a somewhat surprising ground of appeal, because the absence of special warnings under sections 36 and 37 of the Act would appear to have been of advantage to the defence. However, Ms Brennan points out that the judge had earlier indicated an intention to give such a direction when discussing matters of law with counsel in the absence of the jury and had rebuked counsel for suggesting that the opposite course was appropriate. Whilst we understand that Ms Brennan may have been aggrieved that her submissions were not accepted earlier, nevertheless it does seem to us that the omission of any special warnings under sections 36 and 37 of the 1994 Act can only have inured to the benefit of the defence. Indeed, when pressed in argument Ms Brennan accepted that proposition. She did point out that there was reference to special warnings in the interview transcripts read out by the prosecution during the trial. However, neither those transcripts nor any summary of them have been placed before us. When pressed in argument Ms Brennan was inclined to accept that it would have done more harm than good if the judge had come back to that matter in the course of his summing up.
38. For all of the above reasons we are not persuaded by the appellant's submissions in relation to the third ground of appeal. That ground of appeal is dismissed.
39. We turn now to the fourth ground of appeal, namely misdirection on identification evidence. The prosecution adduced evidence from surveillance officers which was summarised in a schedule of events. The relevant part of the schedule of events for present purposes relates to the period 12 noon to 12.10pm on the 24^th April 2007.
40. It can be seen from that schedule that at 12 noon Officer Sanders saw a small white van registration number CE03 KKZ being driven along Grove Park Road, Wanstead. The driver was James or Michael Slade. The important point emphasised by the defence is that it was not Davis. At 12.02pm Officer Sanders saw a Mercedes Sprinter, registration number X669 AAN, and white van CE03 KKZ driven along Grove Park, Wanstead. At 12.03pm Officer Sanders saw both vehicles stop on Stansted Road. She saw White get out of the vehicle X669 and then get back into that vehicle. At 12.04pm Officer Sanders saw both vehicles being driven along Grosvenor Road in convoy. After that Officer Sanders' observation of the vehicle ceases. At 12.08 Officer Farrow and Office Machar saw the appellant exit from Ford van CE03 KKZ on Wellington Road, Wanstead. They saw him using a mobile phone and carrying a black holdall. They saw him walk away from the van. At 12.10 Officer Hartley saw the white van CE03 KKZ left unattended with the driver's window partly down.
41. The evidence of Farrow and Machar to the effect that the man exiting the Ford van at 12.08 was the appellant was strongly disputed by the defence. Accordingly the judge gave a very full Turnbull direction to the jury concerning the dangers of mistaken identification. No criticism is made of the general adequacy of the Turnbull direction. Furthermore, in relation to the evidence of Farrow and Machar the judge pointed out that one of those two officers, namely Farrow, said he had made a mistake and subsequently changed his mind to say that the man in question was Davis. No criticism is made of the judge's summary of that aspect of the evidence of Farrow and Machar.
42. The criticism made by Ms Brennan of the judge's summing up is that in his summing up he omitted to mention the following seven facts:

i) The registered owner of the van was Michael Slade.

ii) At 12 noon two surveillance officers, Sanders and Bibi, identified the driver as Michael Slade and signed the log accordingly.

iii) Thereafter, Sanders and Bibi kept the van under surveillance.

iv) When Sanders was shown photographs of Michael Slade, James Slade and the appellant (exhibit 1), she maintained her identification of the driver as Michael Slade.

v) No one saw the van stop or anyone exit the driver's seat between midday and 12.08, a period when the vehicle remained under constant observation.

vi) Michael Slade did not make any contact with the authorities over a missing van after it was abandoned at 12.08.

vii) The authorities made no attempt to contact Michael Slade to ask whether he was the driver on 24^th April 2007 and if not, who was.

43. Item 1 in the above list does not seem to us to be a relevant matter which required to be mentioned. Turning to item 2 in the list, no one suggests that the driver of the van at 12 noon was the appellant and nothing turns on which Slade it was. We do not see that there can be any criticism of the judge for summing up as he did and summarising the evidence of Sanders to the effect that the driver of the van was identified by her as James Slade at 12 noon. Turning to item 3 in the list it is true that Sanders and Bibi kept the van under surveillance until 12.04pm. However, on the evidence the van then passed out of the sight of Sanders and was next seen at 12.08. So it is not the case that the van was kept under constant observation by Police Officer's throughout the period between 12 noon and 12.08. Turning to item 4 in the list, it is quite true that the Officer Sanders identified the person she saw in the van as Slade and not as the appellant. This was made clear in the summing up by the judge. Turning to item 5 in the list, the fact is that no Police Officer had the van CE03 KKZ in view between 12.04 and 12.08. No one saw whether or not the van stopped. No one saw whether or not anyone got in or got out of the van during that 4 minute period. Therefore, it was not the case that the van was kept under constant observation during those 4 minutes. Turning to item 6 in the list, and indeed item 7 in the list we do not see why the judge should have enumerated those two matters in his summing up.
44. What the judge did do, quite accurately, was to set out a summary of what the different police officers saw at 12 noon, 12.02, 12.03, 12.04, 12.08 and 12.10.
45. It would in our view have been better if, in the judges summing up, the judge had specifically drawn attention to Ms Brennan's argument concerning this period. Ms Brennan, we are told, placed considerable weight on the fact that the officers who saw the van at 12, 12.02, 12.03 and 12.04 specifically did not say that they had seen the appellant in the van during that period. Ms Brennan in her argument to the jury placed considerable reliance on the fact that the first time the appellant was said to have been seen in the van was at 12.08, when on the evidence of Farrow and Machar, the appellant was in the van and got out of it. Nevertheless, the judge did summarise accurately the evidence which was placed before the jury. Both counsel for the prosecution and defence advanced their respective submissions concerning the significance of that evidence. The judge gave a very clear and very full Turnbull direction, concerning the dangers inherent in identification evidence. Although this part of the summing up could have been improved upon, we do not consider that it was defective. As has frequently been said, it would be wrong for this Court to adopt an unduly prescriptive approach to a summing-up. We do not consider that this part of the summing up, in any way makes the conviction of the appellant unsafe. In the result, therefore, we reject the fourth ground of appeal.
46. We turn now to the fifth ground of appeal, misdirection concerning good character. The position concerning the character of the defendants was as follows. The appellant had one previous conviction for a motoring offence. Downes had a previous conviction in Belgium for drug trafficking. Also, evidence provided by Downes amounted to an admission of tax fraud. Turning to Leaper, he had no previous convictions but one caution for possession of cocaine. Smith had no convictions. The approach of the judge was that Downes was, for all practical purposes, the only defendant with a bad character.
47. The judge gave a very full and clear direction to the jury concerning the effect of both good character and bad character. The judge's direction in relation to the effect of good character followed the standard form and no criticism is made of the adequacy of that direction. The judge went on to make clear to the jury that Downes was the only defendant who should be treated as being of bad character and the other defendants were of good character. We are unable to see any substance in this ground of appeal. We therefore dismiss it.
48. We turn now to the sixth ground of appeal, namely judicial misconduct. Leave to appeal on this ground was refused by the single judge. Therefore, in relation to this ground of appeal the appellant is making a renewed application for leave to appeal.
49. The appellant's essential argument on ground 6 is that the judge's rudeness and discourtesy to counsel was so serious as to amount to misconduct and as to have the effect of denying a fair trial to the appellant. The appellant relies upon two authorities to which we should refer, namely R v Lashley [2005] EWCA Crim 2016; [2006] Crim LR 83 and R v Cordingly [2007] EWCA Crim 2174; [2008] Crim LR 299. In each of these cases there was extreme rudeness by the judge to counsel in conjunction with other factors. In the case of Lashley, some of the rudeness by the judge to counsel occurred not during arguments of law whilst the jury had retired but actually in the presence of the jury. In the case of Cordingly, the rudeness of the judge to counsel occurred in the absence of the jury but there were other matters as well. In particular, the judge refused to allow the defendant to have a change of clothes which had been brought for him before he gave evidence. Also, the judge withdrew bail from the defendant at the start of trial in circumstances which were regarded by this court as questionable. Having studied the two decisions to which we were referred, all members of the court have then read the transcripts upon which Ms Brennan relies as exemplifying discourtesy and rudeness by the judge towards herself. One member of the court has also listened to the tape of some exchanges between Ms Brennan and the judge, as we were requested to do by counsel.
50. It is clear to us from the transcript that there were a number of irascible exchanges between counsel and the judge. On some occasions there was some justification for the judge's impatience. On other occasions the judge's impatience was not justified and we consider that he was rude to counsel. However, it should be noted that all of these exchanges occurred in the absence of the jury. Furthermore counsel Ms Brennan is a member of the Bar of very considerable experience, who stood her ground firmly and in no way was beaten down by the judge.
51. Although we do not feel able to commend the manner in which the judge addressed counsel on a number of occasions, in our view this case falls far short of the extreme circumstances exemplified by the cases of Lashley and Cordingly. We do not think that any of the exchanges between the judge and counsel should be characterised as judicial misconduct. Nor do we consider that those exchanges would have the effect of denying a fair trial to the appellant. In the result, therefore, we refuse leave to appeal on ground 6.
52. We add only this, with regard to more general questions of trial and case management:

i) Robust case management is to be encouraged and supported. We apprehend that the origin of at least some of the unhappiness between counsel and the Judge lay in counsel's resistance to the production of a summary of evidence on one area of the case and her insistence that, instead, extracts of witness statements be read. In that regard, counsel's stance was, with respect, untenable. Either the evidence in question was admissible or inadmissible. If inadmissible, the difficulty could not be cured by reading extracts from the witness statements. However, if the decision was once taken that the evidence was admissible, then the question which remained was essentially one of practicality: was the evidence better adduced by way of statements (or extracts of statements) or a summary? In such circumstances, no legitimate interest of the appellant would have been infringed by reading a summary instead of a number of witness statements.

ii) We cannot help thinking that much of the "feeling" surrounding the direction as to identification could have been avoided had the Judge done as he should and encouraged counsel's assistance on directions for the Jury. That is a course much to be encouraged, exemplifying as it does the dialogue between Bench and Bar, itself a strength of the common law system. The Judge ought not, with respect, to have been dissuaded from this course even if by that stage of the trial there was a degree of tension between him and counsel concerned.

iii) When a matter of any substance arises that is dealt with in the Judge's room, save in the most exceptional of circumstances, a logger should be present. We can understand how on one occasion in this case it came about that a logger was initially not present – albeit that it would have been better had the Judge arranged for a logger from the start. But once counsel asked for a logger, the Judge should as a matter of course have agreed – or adjourned the hearing into court. That his failure to do so did not, in the event, render the conviction unsafe (for reasons already given in this judgment) does not affect the principle of the matter.

53. Let us now draw the threads together. For the reasons set out above, we dismiss the appellant's appeal. We refuse leave to appeal on the grounds which were refused by the single judge.