England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		20 September 2011

1. LORD JUSTICE ELIAS: On 31 January 2011 in the Crown Court at Bristol before His Honour Judge Ford QC, the appellant was convicted by a majority, 11 to one, of conspiracy to supply controlled drugs of class A. That was count 1. This was known as 16 April conspiracy. On 12 February before the same judge he was sentenced to six and a half years' imprisonment.
2. The prosecution offered no evidence in respect of count 2 prior to the commencement of the trial. This was a charge that the appellant had been involved in a different drugs conspiracy known as 21 April conspiracy.
3. There were a number of other participants in the conspiracy who all pleaded guilty. These were Dean Cooper, Sean Mortell, Jody Kerley, Lee Thomas and the appellant's brother, Paul Reid. Some of these defendants had also pleaded guilty to other drugs offences. Mortell, Kerley and Lee Thomas had pleaded guilty to count 2, that is 21 April conspiracy. Dean Cooper had pleaded guilty to count 4, another conspiracy to supply class A drugs, known as 14 July conspiracy. That conspiracy involved Cooper and certain other persons who are not involved in 16 April conspiracy at all. Each of those other participants received significant sentences, the details of which are irrelevant to this appeal.

The appellant now appeals against conviction by leave of the single judge.

4. The ground on which the appeal is advanced is that the judge was wrong to refuse to allow the appellant to adduce evidence of the convictions of his co-conspirators with respect to the other two conspiracies. In view of the nature of the appeal the material background can be stated relatively briefly.
5. On 16 April 2009 at 1.31 pm Paul Reid, the appellant's brother, met Lee Thomas in the car park of the B and Q stores at Filton. Thomas passed Reid a package containing 417 grammes of cocaine. Reid was arrested at his home address later that afternoon at approximately 3.00 pm and the package was recovered.
6. As we have said, Lee Thomas, Paul Reid, Dean Cooper, Sean Mortell and Jody Kerley subsequently pleaded guilty to conspiring to supply that cocaine.
7. There was no direct evidence of the involvement of the appellant but there was circumstantial evidence relied upon by the prosecution.
8. It was not disputed that the pattern of telephone traffic established that the user of mobile telephone number 07827 622850 (herein after referred to as 850) was acting as an intermediary between Paul Reid and other conspirators. There was very significant telephone traffic, the details of which need not be recounted.
9. The telephone, 850, was not registered to an user and worked on a prepaid basis.
10. The prosecution case was that phone belonged to the appellant. They relied on a number of features which they contended established beyond reasonable doubt that this was the case. For example, there was cell site evidence showing that 70 per cent of the telephone calls on mobile 850, and significantly those at the beginning and end of the day, were made from two masts which served the area of the appellant's home address. On examination of the mobile telephone, which the appellant accepted belonged to him, the cell site evidence showed similar patterns. In addition, telephone evidence showed that the mobile 850 had been repeatedly topped up at shops which were within 100 metres of the appellant's home address, and, again, there were similarities in pattern to the topping up of the mobile telephones accepted to have been owned by the appellant. Furthermore, many of these calls were to friends of the appellant.
11. The prosecution also relied on the fact that following the brother's arrest, the calls from phone 850 ceased and thereafter there was traffic on the appellant's clean phone to some of the co-conspirators.
12. There was evidence from a Louise Hemmings who said she had received a telephone call from the appellant on the 850 phone when he was seeking to contact her partner.
13. The prosecution also relied on the fact that the appellant's brother must have known who the owner of 850 was because he had received so many calls and yet the appellant did not appear to have sought to obtain that information from the brother.
14. The defence case was that he was not owner of the phone. He denied making the call to Louise Hemmings. His counsel made a number of points, fairly recorded in the summing-up, as to why the jury should not rely on prosecution's evidence as establishing guilt. They included, for example, the fact that he was 45 year old man with no previous convictions and no grand lifestyle and that he had not been seen by the police in any of their surveillance operations. He also alleged that he did not in fact know some of those contacted by that telephone.
15. This was also evidence of telephone traffic between the appellant and Mortell and Kerley and another person called Harrington, a friend of Cooper's, on 20 and 21 April. The Crown originally relied on this as evidence of his involvement in count 2; that is 21 April conspiracy.
16. The appellant contended that these calls were in fact threats made to him by the callers, who were seeking to extract money from him because the drugs relating to 16 April conspiracy had been lost when Paul Reid, his brother, had been arrested.
17. The prosecution did not seek to challenge this evidence; they were not in a position to do so. Indeed, bad character evidence was admitted showing that each of these three individuals had convictions for violence and would be the sort of people who might well make threats of the kind alleged.
18. The prosecution case was that there was nothing inconsistent in the appellant being a party to the conspiracy and later being subject to the threats. Indeed, apparently they were submitting that the threats may well have been made against the appellant because he had brought his brother, who proved to be a weak link, into the conspiracy.
19. So the issue for the jury was simply whether they were sure that the appellant was the owner of the phone at the material time.
20. The appellant does not dispute that there was evidence on which the jury could convict. His case is that the judge should have allowed the jury to be told of the other conspiracy offences of which the co-conspirators had been convicted.
21. The appeal was initially advanced before us on two bases. The first was that this evidence was not bad character evidence as defined in section 98 because it was connected with the facts of the offence and accordingly there should have been no barrier to its admission. That was not, in fact, an argument that was advanced before the judge when he refused to admit this evidence and it has not been pursued before us today. In our view, Mr Roche was wise not to pursue it.
22. The sole ground now advanced, and it mirrors the argument advanced below, was that the evidence, albeit bad character evidence, ought to have been admitted pursuant to section 100(1)(b) of the Criminal Justice Act 2003. This provides as follows:

(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if --

...

(b) it has substantial probative value in relation to a matter which --

(i) is a matter in issue in the proceedings, and

(ii) is of substantial importance in the context of the case as a whole."

23. There are two questions therefore raised by this subsection. The first is whether adducing the convictions in evidence relates to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole. If the answer to that is yes, then the question arises as to whether it is of substantial probative value in relation to that matter.
24. Mr Roche submits that both aspects are satisfied. He says that the involvement of other co-conspirators in other conspiracies committed at a similar time, and particularly the21 April conspiracy, casts light on the relationship between the appellant and his co-conspirators. He points out that the Crown had relied upon evidence of communications between the appellant and co-conspirators from January. He says, in effect, that the jury ought to have been told about the involvement of the co-conspirators in the other conspiracies because they might have said to themselves "if he was involved with them in this conspiracy we might have expected him to be involved in others too". He also submits that the evidence of the relationship between these individuals might have cast further light on the telephone calls, alleged by the appellant to be threatening, which took place on 20 and 21 April.
25. Mr Lowe for the prosecution denies that either of these requirements are satisfied. He says that the question of the involvement of other persons in quite distinct conspiracies is of no relevance to the question whether the appellant was a party to the conspiracy for which he was convicted. Even if the evidence can be said to have any potential relevance at all to the appellant's relationship with his co-conspirators, it certainly could not be said to have any substantial probative value.
26. We were referred to two cases as to the meaning of that phrase. One was the decision this court in the case of Apabhai [2011] EWCA Crim 917, where the court, relying upon an earlier decision of Scott [2005] EWCA Crim 2457, held that:

"'the word substantial must mean that the evidence concerned has something more than trivial probative value."

27. That case was in fact concerned with section 101 rather than section 100 but we accept that the concept ought to be the same.
28. Reliance was also placed on the observations of Pitchford LJ in Brewster and Cromwell [2010] Cr App R 120 at paragraph 22 where he said this:

"It seems to us that the trial judge's task will be to evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value ..."

29. This case is not in our view of direct assistance here since we are not concerned with the credit-worthiness of any particular witness.
30. We doubt whether the first requirement is satisfied in this case. The case essentially is the fact that the appellant was not involved in the other conspiracies suggests that he was not involved in this one either.
31. We point out, as the prosecution has emphasised, that they never accepted that the appellant was not involved in 21 April conspiracy. There was no concession to that effect. But, in any event, it plainly does not follow that a lack of involvement in other offences might demonstrate a lack of involvement in this one. It is also relevant that not all the other conspirators were involved in the same conspiracies. Different conspirators were involved in different conspiracies at different times, or, more accurately, it could only be established that certain individuals were involved those conspiracies whatever the actual position might have been. We do not accept that the fact that a defendant is not party to conspiracies B and C is evidence that he is not party to conspiracy A.
32. But even if that is wrong, and even if we allow for the possibility that these other convictions may have some bearing on the relationship between the co-conspirators, we are satisfied that it certainly cannot be said to have had substantial probative value as that concept has been defined. It seems to us that the evidence, if relevant at all, is highly marginal indeed.
33. The crucial evidence here was the evidence about the ownership of the telephone. This evidence, establishing that the defendant was not involved in other conspiracies which some of the co-conspirator were involved in, does not seem to us to be of any real assistance at all in dealing with that particular evidence.
34. It follows that in our view, although the judge dealt rather summarily with the submission under section 100(1)(b), he came to the correct conclusion and he was right not to allow this evidence to go before the jury. It follows, therefore, that we reject the appeal in this case.