England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
HER HONOUR JUDGE SMITH

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/01/2011

Lord Justice Pill :

1. On the 10 August 2009 on retrial in the Crown Court at Reading before Her Honour Judge Smith and a jury Edward Martin Booker was convicted of conspiracy to supply a controlled drug of class A (cocaine) (Count 1). He was sentenced to 5 years imprisonment with a direction that 2 days spent in custody before his original sentence should count towards sentence. Booker had been convicted at the first trial on 3 September 2007. On the 19^th September 2008, the conviction was quashed in this court and a retrial ordered. The court held that evidence at the original trial had been unfairly introduced and used by the prosecution.
2. Booker appeals against conviction by leave of the single judge. If not already granted, the court grants an extension of time of 154 days in which to appeal against conviction.
3. At the retrial, the appellant was charged with Philip Colyer and Robert Breskal. Colyer pleaded guilty to count 1. He was sentenced after the trial to 45 months imprisonment. In the course of the trial, Breskal pleaded guilty to money laundering contrary to section 328(1) of the Proceeds of Crime Act 2002 (count 2) and was found guilty of conspiracy to supply a class C drug (cannabis). He was sentenced to 27 months imprisonment. He was acquitted on count 1. Breskal had not been charged at the first trial.
4. The issue which arises is whether there was an error of law, or an unfair retrial, by reason of the appellant being retried with Breskal who was not a defendant in the first trial. An application that there should be separate trials of the appellant and Breskal was refused by the judge on 17 November 2008. The judge relied on the circumstances of the conspiracy alleged, to which we will refer. Counsel then appearing for the appellant did rely on the absence of meetings between the appellant and Breskal. He also submitted that it had been the conduct of the prosecution which had led to the quashing of the conviction at the first trial and "the interests of the defendant, who now has to be tried for a second time, should be taken into account". Further, it was submitted that it may be "one of those rare circumstances in which two single trials could be shorter than a joint trial".
5. The prosecution case at both trials was of an agreement to supply cocaine from Impact Studios in Reading between 14 December 2005 and 17 July 2006. The premises were under observation by CCTV. It was alleged that Alec Chandler was the head of a cocaine distribution ring in which others, including the appellant, were involved. Chandler and others were convicted at the first trial. The case against the appellant at both trials was that he was a runner for the network.
6. Against the appellant, the prosecution relied on visits by him to the studios on 2 occasions on 7 April 2006, 2 occasions on 10 April and further occasions on 11 April and 13 April. Six visits on 23 May and 3 visits on 24 May were also alleged. The appellant was observed to be carrying boxes or bags to and from Impact Studios. Reliance was also placed on telephone activity between the appellant and conspirators who, as the jury at the second trial knew, had already been convicted on count 1. The appellant's case was that he had been involved in the distribution of counterfeit clothing but not of drugs.
7. For the appellant, Mr Maguire relied on the decision of this court in R v Hemmings & Others [2000] 1 Cr App R 360, Clarke LJ presiding. The case was concerned with a retrial proceeding on different charges, counts of theft, from the conspiracy to steal charged at the first trial. That was held to have been permissible in the particular circumstances. No contrary submission had been made at the trial. That particular issue does not arise in the present case but Mr Maguire seeks to extract from Hemmings a general principle that it would not be permissible to allow amendment of an indictment if to do so puts a defendant in a worse position than he had been at the original trial.
8. Before considering the submission in more detail, it is necessary to consider the circumstances in which Breskal was joined and the impact of his joinder. At the appellant's retrial, Breskal too was claimed to be supplying the network with drugs and reliance was placed on visits to the premises, one of which was close in time to a visit by the appellant.
9. Breskal was arrested in May 2006, that is about two months before the appellant's arrest. Breskal was told that he would not be charged. On 5 August 2008, Breskal was re-arrested in relation to the conspiracy to supply class A drugs and, on the same day, was charged with count 1. The evidence against Breskal emerged during the first trial, that is by September 2007.
10. The first point taken is that Breskal was not charged until August 2008, that is a year later. He was charged only after the appellant's appeal against conviction had been lodged. Had Breskal been charged earlier, his trial would have proceeded before the retrial of the appellant and the prejudice to the appellant would not have arisen. Two other conspirators, Grove and Wright, were dealt with separately, each having pleaded guilty (2 January 2008 and 13 March), following arrest in late 2007 (September and December). Colyer was arrested in February 2008. There was a conference with counsel on 23 April and the CPS authorised the continuation of the prosecution.
11. An explanation for the delay in charging the appellant was sought from the prosecution and information became available after the hearing before this court. The appellant's solicitors have commented on it in writing. Having recited the above dates, the responsible officer stated:

"In August 2008, as we had opened this line of enquiry to deal with Colyer, it made sense to try and scoop up Robert Breskal as being the final person that was outstanding in the investigation and join them together in the prosecution."

12. That does not provide an explanation for the delay in the appellant's case. It was stated that the "initial trigger" for Breskal's re-arrest "began" in September 2007, when Grove was arrested, but no action was taken against Breskal for almost a year. Breskal's involvement with Wright had been established by September 2007 at the original trial. Why Breskal was treated only as a "scoop up" when proceedings were taken against Colyer is not explained. In those circumstances, it was unfair to require the appellant to be tried with Breskal, it was submitted.
13. At the time the application for a separate trial for the appellant was refused, Breskal's defence appeared to be that he too had visited Impact Studios for purposes unconnected with drugs, that is the delivery of clothing. Five days into the trial, he pleaded guilty to an offence of conspiracy to supply cannabis, a charge having been added, and to money laundering. The prosecution nevertheless proceeded against him on count 1. He gave evidence, after the appellant had given his evidence. In his evidence, Breskal admitted delivering boxes of cannabis to the Studios. He knew it was cannabis because he was told it was and because he could smell it. He admitted that the account he had previously given that the boxes delivered on 22 May contained t-shirts and long sleeved shirts was untrue. Breskal said that he had relied on the lie as a "smoke screen" in order to explain why he had delivered goods to Impact Studios.
14. Breskal was asked about his visit on 22 May:

"Q On 22^nd May you delivered the boxes we have seen and we have seen Mr Booker carrying boxes out from Impact Studios? A. Yes.

Q Did they look to you like the same boxes that you had delivered, Mr. Breskal? A. I – I wouldn't know if they were or not. I couldn't say. They were – they were boxes, they were similar boxes."

15. We agree with Mr Maguire that, in the event, the appellant's defence was adversely affected, and substantially so, by the evidence of his co-defendant Breskal. The appellant was seen to carry away from Impact Studios boxes which, from the video observation, appeared identical to the boxes delivered by Breskal which Breskal said contained cannabis. No application was made on behalf of the appellant to discharge the jury when Breskal had given his evidence.
16. The application to amend the indictment in November 2008 was to add Breskal and Colyer, already alleged to be conspirators, as defendants at the appellant's retrial. Section 5 of the Indictments Act 1915 provides:

"(1) Where, before trial, or at any stage of trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice . . ."

For the prosecution, Mr Hope submitted that, evidence against Breskal having emerged at the first trial, the judge was entitled under the section to permit the amendment adding Breskal as a defendant. The conspiracy was centred upon the delivery to and collection of goods from Impact Studios and it was in the interests of justice that those involved in such traffic should be tried together. Mr Hope accepted that a defendant in such circumstances would be better off being tried alone but each person alleged to be involved was not entitled to a separate trial.

17. The relevance of this being a retrial needs to be considered. Provision for retrial is made in section 7 of the Criminal Appeal Act 1968, as amended:

"(1) Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be re-tried.

(2) The person shall not under this section be ordered to be retried for any offence other than-

(a) the offence of which he was convicted at the original trial and in respect of which his appeal is allowed as mentioned in sub-section (1) above;

(b) an offence of which he could have been convicted at the original trial on an indictment for the first-mentioned offence; or

(c) an offence charged in an alternative count of the indictment in respect of which the jury were discharged from giving a verdict in consequence of convicting him of the first-mentioned offence."

18. In Hemmings, at page 371G to 372D, the court stated its reasons for permitting amendment in that case, where the issue specifically dealt with by section 7(1) arose:

"(1) Section 5(1) of the 1915 Act is in wide terms. If it is construed by reference to its terms, the judge had power to permit the amendment. The indictment was defective within the meaning of section 5(1) for the same reason as it was defective at the first trial. At the first trial the amendment would have been 'necessary to meet the circumstances of the case' within the meaning of section 5(1) for the reasons given in paragraph 7 above. Further it could not have been said that the amendment could not have been made without injustice.

(2) This Court could not have ordered a retrial under section 7(1) of the 1968 Act on an indictment containing the theft offences because of the terms of section 7(2). However, there is nothing in section 7 or 8 of the 1968 Act which expressly affects the power of the trial judge at a trial (which logically must include a retrial) to permit the amendment of the indictment preferred pursuant to an order of this Court under section 7. Neither section is concerned with amendment. Section 7(2) is concerned with the order and section 8 with the subsequent procedure.

(3) It is not implicit in section 7(2) that the trial judge's power to permit any amendment under section 5(1) is proscribed. There is no reason why the trial judge should not permit an amendment under section 5(1) if the criteria in that section are satisfied.

(4) In the instant case those criteria are satisfied because the amendment was 'necessary to meet the circumstances of the case' and, not only could the amendment be made without injustice, but the amendment served the interests of justice for the reasons given above.

(5) The position would almost certainly have been different if the proposed amendment had put the appellants in a worse position than they had been in at the original trial. As we see it at present, it would not be permissible to permit the amendment of an indictment if to do so would put the defendant in a worse position than he had been after the original trial because any decision on an application to amend must respect the statutory purpose behind section 7 of the 1968 Act.

(6) In this case the amendment was consistent with that statutory purpose and not inconsistent with it. In our judgment, section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the 1915 Act."

19. Mr Hope submitted that Hemmings was concerned only with the power to charge a different offence at the retrial and the court's conclusion that section 7 should not be construed as impliedly limiting the powers which the trial judge would otherwise have under section 5(1) of the 1915 Act. Mr Maguire relied on the concern expressed by the court that amendment should not put the appellant in a worse position than he had been at the original trial. Mr Maguire accepted that evidence not available at the time of the first trial may be called at the second trial but submitted that, at the time the amendment was allowed, the appellant was in a worse position as a result of the "unknown quality" of the added defendant. In the event, the potential for disadvantage was amply fulfilled.
20. The addition of Breskal as a defendant put the appellant in a worse position than he had been in at the original trial, it was submitted. Moreover, at page 371D-F of Hemmings the court appeared to accept the prosecution's reference to the "underlying purpose of section 7" as being "to ensure that justice is done while at the same time protecting the defendant by ensuring that he is not put in a worse position than he was at the original trial". Mr Maguire submitted that the appellant was undoubtedly in a worse position and that, on a retrial, a joint trial involving him and Breskal was unfair. Moreover, the situation had only arisen because of the unexplained delay of the prosecution in charging Breskal.
21. At the heart of the issue is the question whether an amendment to an indictment, which would otherwise have been unobjectionable as necessary to meet the circumstances of the case, becomes objectionable because, for the appellant, this was a retrial. But for the retrial aspect of the case, we have no doubt that the application to join a conspirator as a defendant was on the facts permissible. Co-conspirators should normally be tried together and the circumstances of the conspiracy alleged in this case made that course appropriate, subject to consideration of the particular circumstance that, for the appellant, it was a retrial.
22. The delay in charging Breskal is a notable feature of the case and, given the available evidence, it is surprising that proceedings were not taken against him in late 2007 when action was taken against Grove and Wright. We are not, however, able to conclude that this was anything more than a lack of focus on the part of the prosecution. There can be no suggestion that there was an abuse of process in relation to Breskal, and none was suggested. We are not prepared to infer that the delay was permitted to occur, or that Breskal was arrested at the time he was, with a view to prejudicing the appellant in the event of a retrial. The sequence of events and the explanation, such as it is, does not permit that inference. The "scoop up" approach, though unattractive, does not demonstrate that the motive or intention was to prejudice the appellant.
23. The appellant was, in the event, put at a disadvantage at the retrial because he was tried with Breskal. Defendants are often at a disadvantage at a retrial, as compared with the trial, because of supervening events or better preparation of the prosecution case.
24. Like the court in Hemmings, we have not found the issue an easy one. We have come to the conclusion that there was no error of law in the procedure followed:

(1) Section 7(2) of the 1968 Act deals with charging for different offences and specific situations in which that may arise. Hemmings was concerned specifically with the substitution of a different charge.

(2) A ban on adding a defendant to the indictment does not appear in section 7(2) and section 5(1) of the 1915 Act should not be applied as if it did. Section 7(2) does not proscribe the exercise of the trial judge's power to permit an amendment under section 5(1).

(3) There is no general principle that previously absent co-conspirators cannot be tried with a conspirator subject to retrial.

(4) While we would accept that it may be necessary to take other factors into account when considering an application to amend in the case of a retrial, the interests of justice require that too restrictive an approach should not be taken. A defendant may often be in a worse position at a retrial, amendment or not, because further evidence has emerged, or is better presented, and he cannot normally complain about that.

(5) We accept that there could be circumstances in which an application to join a defendant at a retrial could be an abuse of the process of the court. The requirement of fairness inherent in section 7(2) could spill over into consideration of a decision to add a defendant. By using the language it did, the court in Hemmings, particularly at reason (5) cited above, probably had broader considerations in mind than the change of charge specifically considered. If a court found that the prosecution were manipulating the process of the court, and hence the fairness of the retrial, by attempting to add a defendant, the court would not permit it.

(6) Notwithstanding the absence of an explanation for the delay in charging Breskal, we are not prepared to conclude that the delay was contrived to make possible a joint trial or that the prosecution were abusing the process of the court when applying to join Breskal as a defendant at the retrial. In the event, it worked against the appellant but it is not established that the prosecution abusively took advantage of the situation to prejudice the appellant in circumstances where Breskal's change of position emerged only during the trial.

(7) In considering whether there has been an abuse, it is appropriate to have in mind the information available at the time the amendment was granted, which in this case did not include Breskal's dramatic change of position. Moreover, when that change did occur, no application to discharge the jury was made on behalf of the appellant.

(8) The judge retained a discretion in deciding whether to permit the amendment of the indictment. Fairness to a defendant being retried must be central to the decision. In our judgment, the judge was entitled to make the decision she did when she did.

(9) The case against the appellant was a strong one and we have no doubts about the safety of the verdict.

25. For these reasons, the appeal is dismissed.