England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BIRMINGHAM CROWN COURT
HHJ Henderson
T2011 7698

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/02/2013

REASONS FOR JUDGMENT

Lord Justice Toulson:

1. On 9 July 2012 at Birmingham Crown Court before HH Judge Henderson the appellant was convicted of conspiracy to supply cocaine. The particulars of the offence alleged in the indictment were:

"JERMAINE ROBB, WAYNE SHILLAM and NATHAN REID between the 16^th day of March 2011 and the 13^th day of July 2011 conspired together and with Ned Stirling DEAN and Darren John VIZARD and with others unknown to supply class A drugs namely cocaine to another."

2. The appellant was given leave to appeal on the single ground that the direction given by the judge in response to a note from the jury allowed the possibility that the appellant and his co-accused were convicted of the offence charged without the jury necessarily being sure that they were all guilty of the same conspiracy. The appellant also renews his application for permission to appeal on the ground that the judge failed properly to direct the jury as to the need for proof both of the conspiracy alleged and of the appellant's participation in it. The complaint made under this head is linked with the complaint made about the judge's response to the question from the jury and we give leave for the appellant to advance it.
3. The prosecution's case was based on surveillance, telephone evidence and material obtained on the arrest of suspects. Robb was alleged to be the central character. Cocaine was cut and prepared at 151 Slade Road, Sutton Coldfield. On 6 April 2011 Robb was seen to make a delivery at that address. The prosecution asserted that he was delivering cutting agents. Next day the premises were raided. Dean and Vizard were present. The police found 225.8g of cocaine together with benzococaine and phenacetin, which are well known cutting agents, and a hydraulic press. Dean and Vizard were subsequently convicted of possession of cocaine with intent to supply.
4. The appellant and Reid were both alleged to be regular purchasers of cocaine from Robb for onward sale.
5. In the case of the appellant, on 6 April 2011 a van with two occupants was seen to stop beside Robb's car at a car park. One of the occupants got into Robb's car briefly and then returned to the van. The van was driven off but was stopped shortly afterwards by the police. The appellant was the driver and in it was 6.99g of cocaine. Examination of the appellant's phone revealed a number of text messages from people wanting to buy cocaine from him, and showed also that he was in frequent phone contact with Robb but not with any other alleged conspirator.
6. In the case of Reid, on 23 March 2011 Robb was seen to get into the passenger side of a car registered in the name of Reid. He got out of the vehicle two minutes later and put a large bundle of cash in his pocket. Reid's home address was searched on 28 April 2011. He had 1.4 kg of benzococaine and 245g of lignocaine, as well as a quantity of cannabis and £1,545 in cash. Examination of his phone revealed a number of text messages suggesting that he too was dealing in drugs, and that he too was in regular phone contact with Robb.
7. The prosecution's written case summary concluded:

"It is not asserted that Reid and Shillam knew each other but both knew Robb and obtained their drugs from him in order to cut up and sell to others."

8. Mr Potter confirmed that this was how the case was presented to the jury, except that it was not suggested that the appellant was involved in the cutting up of the drugs. His role was that of a purchaser of drugs from Robb, which he sold on to sub-buyers.
9. Before summing up, the judge wisely provided counsel with a draft of directions which he intended to give to the jury. The proposed directions identified the critical question as follows:

"…did the particular defendant whose case you are considering agree with at least one other person at some point during the period on the indictment that cocaine should be supplied to someone else?"

10. Overnight Mr Brunt on behalf of the appellant produced written submissions in which he suggested, by reference to the analysis of the law of conspiracy in D [2009] EWCA Crim 584, that the jury should be asked:

"Has the prosecution proved that the five named individuals all agreed to be part of a single plot to dilute and distribute cocaine?"

11. The judge declined to vary his proposed direction. Mr Brunt's suggestion that the jury could only convict any defendant if they were sure that all five named individuals were guilty of the conspiracy alleged was incorrect; but his submission and his reference to D did have the merit of pointing to the need to identify the scope of what was charged by the prosecution as a single conspiracy.
12. The judge's summing up did not contain any summary of how the prosecution put its case as to the scope of the alleged conspiracy, or make any mention of the matters relied on to show that the appellant and Reid were not merely separate buyers from Robb but rather were parties to a wider conspiracy.
13. In his general directions the judge said that the real issue in the case could be summed up in one sentence, which he expressed in the same way as he had indicated that he proposed to do.
14. After retiring to consider their verdicts, the jury sent the judge a note in the following terms:

"Conspiracy, does it have to be between any two of Robb, Shillam or Reid or can it be any one of Robb, Shillam and Reid plus persons unknown? "

15. The judge raised the matter with counsel. Mr Brunt referred again to D and to the question whether there was a single conspiracy or more than one. The judge said that he had already given his ruling about that.
16. On the jury's return, the judge read out their question and directed them:

"The answer is the latter as a conspiracy is between two people. This indictment includes these three plus persons unknown, so it could be one of them plus a person unknown. "

17. We accept Mr Brunt's submission that this direction was misleading. As the single judge observed when granting leave to appeal, the judge's answer to the jury's question allowed the possibility that all three defendants could be convicted of separate conspiracies with different people.
18. We also accept the broader submission that the judge's general directions were defective. The relevant legal principles have been analysed in a number of cases, most recently in Mehta [2012] EWCA Crim 2824, in which the court said:

"36. The authorities establish the following propositions:

1. A conspiracy requires that the parties to it have a common unlawful purpose or design.

2. A common design means a shared design. It is not the same as similar but separate designs.

3. In criminal law (as in civil law) there may be an umbrella agreement pursuant to which the parties enter into further agreements which may include parties who are not parties to the umbrella agreement. So, A and B may enter into an umbrella agreement pursuant to which they enter into a further agreement between A, B and C, and a further agreement between A, B and D, and so on. In that example, C and D will not be conspirators with each other.

37. These principles are illustrated by the well known lime fraud case of Griffiths ([1966] 1 QB 589). A supplier of lime to farmers, acting in concert with an employee, entered into agreements with several farmers to defraud the government by making false subsidy claims. There was no evidence that any of the farmers was aware of the arrangements being made between the principal defendant and any of the other farmers, but they were all charged with a single count of conspiracy. The Court of Criminal Appeal held that there was no evidence of a conspiracy between all those convicted, as opposed to a number of different conspiracies, and the convictions were quashed. Paull J gave an illustration which has been quoted in later cases:

"I employ an accountant to make out my tax return. He and his clerk are both present when I am asked to sign the return. I notice an item in my expenses of £100 and say: "I don't remember incurring this expense". The clerk says: "Well, actually I put it in. You didn't incur it, but I didn't think you would object to a few pounds being saved." The accountant indicates his agreement to this attitude. After some hesitation I agree to let it stand. On those bare facts I cannot be charged with 50 others in a conspiracy to defraud the Exchequer of £100,000 on the basis that this accountant and his clerk have persuaded 500 other clients to make false returns, some being false in one way, some in another, or even all in the same way. I have not knowingly attached myself to a general agreement to defraud."

19. Conspiracy requires a single joint design between the conspirators within the terms of the indictment. It is possible, as in Mehta, that the evidence may prove the existence of a conspiracy of narrower scope and involving fewer people than the prosecution originally alleged, in which case it is not intrinsically wrong for the jury to return guilty verdicts accordingly, but it is always necessary that for two or more persons to be convicted of a single conspiracy each of them must be proved to have shared a common purpose or design.
20. In the present case the prosecution's argument was in effect that there was a "wheel" or "chain" conspiracy with Robb at its centre or head; but in such a case, although each conspirator need not necessarily know of the identity or even the existence of all the other conspirators, there must be a shared criminal purpose or design in which all have joined, rather than merely similar or parallel ones.
21. The law in this regard is accurately stated in Smith & Hogan's Criminal Law 13^th ed (2011) at 427:

"It may not be necessary to show that the persons accused of conspiring together were in direct communication with one another. Thus, it may be that the conspiracy revolves around some third party, X, who is in touch with each of D1, D2, D3, though they are not in touch with one another (a 'wheel conspiracy'). Provided that the result is that they have a common design – for example, to rob a particular bank – D1, D2 and D3 may properly be indicted for conspiring together though they have never been in touch with one another until they meet in the dock. The same is true of a chain conspiracy where D1 communicates with D2, D2 with D3, etc. In either case it must be proved, of course, that each accused has agreed with another guilty person in relation to that single conspiracy. Ardalan [1972] 2 All ER 257 at 261

"What has to be ascertained is always the same matter; is it true to say…that the acts of the accused were done in pursuance of a criminal purpose held in common between them?" [Meyrick [1929] 21 Cr App R 94 at 102.]."

22. The judge's summing up did not address that issue. On the contrary, he directed the jury that for a defendant to be convicted it was sufficient to show that he had agreed with another person, whether identified or unknown, for the supply of cocaine within the period of the indictment. This left it open to the jury to convict all three defendants of the conspiracy charged against them, is satisfied that the appellant and Reid had each made arrangements with Robb to buy cocaine from him, whether or not the appellant or Reid was party to a wider design. This was wrong.
23. Since Robb was put by the prosecution as the head of the alleged conspiracy, and the involvement of the appellant and Reid was with him, the jury should have been directed to consider first the case in relation to Robb. As to that, there was a strong case that he masterminded the acquisition and processing of the drugs for onward distribution, and that this must have involved the knowing participation of others, so rendering him guilty of the conspiracy charged. The jury should next have been told that if they were not sure of Robb's guilt, they should also acquit the other defendants; but that if they were sure of his guilt, they must then consider whether the prosecution had proved as against each of the other defendants that they shared a common purpose or design (as distinct from separate but similar designs) so as to be a party to the same conspiracy, i.e. a conspiracy wider than the supply of cocaine to that particular defendant.
24. The question then arises whether, despite the defective directions, the appellant's conviction is safe on the evidence which the jury received. On that point, Mr Potter properly accepted that, if the court were to conclude that there had been a misdirection of the kind which we have found, he could not submit that on a proper direction the jury would necessarily have been sure that the appellant was party to a conspiracy which went beyond arranging to buy cocaine from Robb. Indeed, on the material before this court we can see no basis for a properly directed jury finding that the appellant was party to a conspiracy with anyone other than Robb. The appellant appears to have been a regular buyer from Robb of drugs which he would sell to his own customers, but no more than that, as distinct from being, say, an agent acting for Robb as part of a single co-ordinated network for the processing and distribution of drugs. If the appellant were to be regarded on the evidence as a participant in a wider conspiracy, it is difficult to see why the same would not apply to every other person in the chain of buyers and sellers from the originator down to the end users. Mr Potter submitted that the appellant's position could be distinguished from others upstream of Robb and downstream of the appellant, because of the frequency and closeness of the appellant's dealings with Robb, but that is no reason for regarding him as a conspirator with persons other than Robb. The appeal must therefore be allowed and the appellant's conviction quashed.
25. The moral of the case is that the prosecution should always think carefully, before making use of the law of conspiracy, how to formulate the conspiracy charge or charges and whether a substantive offence or offences would be more appropriate. It is unfortunate that the appellant was not charged with possession of cocaine with intent to supply (as Dean and Vizard were), for it is plain from the jury's verdict that he would have been convicted. Prosecutors should take note of the court's words in Griffiths at page 599:

"We venture to say that far too often…accused persons are joined in a charge of conspiracy without any real evidence from which a jury may infer that their minds went beyond committing with one or more other persons the one or more specific acts alleged against them in the substantive counts, or went beyond a conspiracy to do a particular act or acts."