England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LIVERPOOL CROWN COURT
His Honour Judge Wright
T20137916 & 7917

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th July 2014

Lady Justice Rafferty:

1. The Respondents currently stand trial at the Crown Court in Liverpool for conspiracy to supply heroin. On Wednesday 18^th June 2014 the judge ruled there was no case to answer for 6 of the 7 defendants charged. The jury was not discharged. The Crown appealed against that ruling pursuant to Section 58 of the Criminal Justice Act 2003. We heard the appeal on the 1^st July 2014. The trial was due to resume on that day against the remaining defendant, Fowler. We allowed the Crown's appeal, reversed the ruling and ordered that the trial be resumed against all defendants.

The legal framework

2. Section 67 Criminal Justice Act 2003 provides that this court may not reverse a ruling unless satisfied it was wrong in law, involved an error of law or principle, or was not reasonable for the judge to make.

The facts in synopsis

3. The case for the Crown is that Nicholls and Johnson based in Evesham in Worcestershire sourced drugs from Gibson and Roach (assisted by Siddeley and Thompson) based in Leigh in Lancashire with Fowler as courier. Having observed Fowler travel to Leigh on 25^th September 2013 and having monitored his movements on the 25^th and 26^th September in the Leigh area, police intercepted him on his return south next day and seized a package containing heroin. On November 28^th 2013 at a point approximately equidistant between Evesham and Leigh Nicholls and Johnson in one vehicle and Gibson, Thompson and Siddeley in another met on a quiet road leading to a quarry. The meeting was very brief. Police stopped both vehicles on their respective journeys homeward. £4,000 cash was seized from Gibson's vehicle or its occupants.

The history of the proceedings

4. The trial began on 2^nd June 2014. Gibson, Roach, Nicholls and Johnson had applied to dismiss the charge. The judge refused the applications and gave reasons in an oral judgment of 5^th June 2014. Submissions of no case to answer were successful on 18^th June at the close of the case for the Crown when the judge gave an oral judgment.

The judge's approach

5. The judge took the Crown's case at its highest. The case relied on circumstantial evidence. Thus, where "a key issue ….was whether there was sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer involved the rejection of all realistic possibilities consistent with innocence" (Goddard 2010 EWCA Crim 1756; Jabber 2006 EWCA Crim 2694) Hedgecock 2007 EWCA Crim 3486)
6. The judge found the circumstantial evidence centred on 25^th to 26^th September and 28th November. He summarized the Crown's case. On 25^th September Fowler travelled from Evesham to Leigh to collect drugs. His movements were controlled by a person or persons using a mobile never recovered, but whose number was stored in Fowler's handset as 'Reko' ("Reko"). The Reko number liaised with Roach. Roach organised Gibson's meeting with Fowler whilst the drugs were being sourced ie until the following day. Over the two days in September Fowler met Gibson Roach and Siddeley. On the evening of 26^th September Fowler when stopped on the M6 had secreted in his trousers a half kilogram sealed package comprising 5gm heroin at 23% purity and a 500gm packet of breadmix. Over those September days Fowler was in contact with Roach and the Reko telephone. On 28^th November Gibson, Siddeley and Thompson drove from Leigh to the Midlands to meet Johnson and Nicholls on a quiet road leading to a quarry, the Gibson vehicle having taken anti-surveillance precautions en route. After a few minutes both drove away, Gibson Siddeley and Thompson heading north, Nicholls and Johnson south. Both cars were stopped and searched. Nothing was found on Nicholls or Johnson but two bundles of £2,000 fell from the rear of the Gibson vehicle near Thompson. The money was payment for the intercepted package or was ongoing trade.
7. The judge observed that there was no direct evidence of the passing of the package to Fowler, there were no admissions to participation on the part of any defendant, no science linked the package to any defendant making a submission and there was no evidence of dealing on any other day.
8. The judge considered whether a reasonable jury properly directed could reject all realistic possibilities consistent with innocence. He ignored what Fowler said in interview when considering the case against the other defendants. He accepted that a reasonable jury could infer that Fowler had travelled north so as to collect drugs. The issue was whether Fowler's trip were associated with any other defendant.
9. The evidence disclosed significant periods when Fowler had not been under observation. In particular Fowler had not been observed in the hour before he left Leigh, during which, inferentially, he had collected the package.
10. Other potentially significant telephone contacts involving Fowler had not been investigated. The police had determined that they were not relevant yet two numbers were in regular contact in the relevant period. Neither these nor any other number had been attributed or cell-sited (sic).
11. Science had emerged during the Crown's case. Two DNA matches on the packaging had been identified. The detail was set out in the Admissions. The two men from whom the DNA came were from the Manchester and Salford areas and linked to drugs. Neither was linked by the Crown to any defendant. [The judge referred to then rejected a contention (actual or potential) by the Crown that they could have acted at the behest of Gibson and Roach. Such was never part of the Crown's case.]
12. There was no evidence against Nicholls and Johnson regarding the September events. Evidence about the Reko phone linked it only to Fowler and Roach. What Roach said in interview about having spoken to Nicholls when his telephone was connected to the Reko number was not admissible against Nicholls. Evidence from D.C. Greenhough excluded any link between Johnson and Reko. The clandestine meeting in November and the payment of £4,000 did not cast an informative shadow over the events of September.
    Expert evidence was that £4,000 was too much for five grams of heroin at 23% purity and too little for half a kilogram.
13. A jury could infer that money passed from Nicholls and Johnson to Gibson, Siddeley and Thompson as part of a conspiracy. On its own, divorced by two months and absent evidence in between, those events had insufficient probative force to show it related to Class A drugs. The evidence demonstrated a realistic possibility that the package seized in September 2013 had come from the two whose DNA was on the packaging. A jury could not reject all realistic explanations consistent with innocence and there was no case to answer against the 6 defendants in relation to whom submissions had been made.

The Appellant Crown's Grounds

14. The Grounds rely upon insufficient change in the position between the refusal to dismiss and allowing the half-time submissions, the rulings inherently contradictory. The starting point for its criticism is the reliance on Fowler not being under observation for the entirety of his time in Leigh. The submission is that the rulings are inherently contradictory. The Crown argues that the ruling on the submissions was unreasonable in light of the whole of the evidence, it contained errors and important errors on the question of inferences and that the overall evidence provided ample grounds on which a jury could convict.

The Respondents' Grounds of Opposition

15. These are common to all with a limited number of exceptions which for the purposes of this ruling need not trouble us. All argue that for the reasons the Judge set out the Crown must fail. The Judge was not wrong in law as his recitation of the relevant extract from the authorities made clear. He made no error of law or principle. The wide ambit of his discretion means that the Crown cannot clear the very high hurdle of showing that his decision was one it was not reasonable for him to make.

Discussion and conclusion

16. The Crown was before us dogged in its emphasis upon the evidential differences between the position at the application to dismiss and at the close of its case. To the extent that an exercise in comparison might serve to isolate where the judge fell into error we were content to receive its submissions in that form. However, as we repeatedly made clear, what mattered was not the difference between the two rulings. Never mind what the dismissal ruling set out, analysis of the position at the close of the case for the Crown was dispositive.
17. The starting point for its criticism is the reliance on Fowler not being under observation for the entirety of his time in Leigh. The Crown was never anxious about this and could afford not to be. The defence made a certain amount of hay whilst the sun shone as the negative was highlighted in cross-examination. This is of no consequence, particularly given the approach of the Crown. All it had to prove on this part of its case, if only by setting up a tenable inference, was that in the Leigh area someone at some relevant time handed the drugs to Fowler. Who, when and precisely where is neither here nor there. Since it could show that Fowler must have obtained the heroin during his visit to Leigh, someone or some people at the Leigh end must have been conspirators. The Crown could prove that Fowler began this expedition from Evesham and it was an obvious inference that when stopped he was going back. The Crown could also show that others were in the Midlands. That such were party to the conspiracy was obviously a conclusion it was entitled to invite a jury to draw.
18. Some numbers Fowler had rung were not investigated. DC Greenhough, to whom the Crown gave the label "expert" did not dispute in cross-examination that only 15 of the apparent telephone contacts between Roach and Fowler were meaningful communications. This had to be seen in the context of the 283 communications via Fowler's handset in the two days before his arrest. The raw telephone data revealed Fowler calling popular numbers throughout his time in Leigh. This is also of little consequence given our analysis of known calls, to which we shall come.
19. What of the DNA evidence? DNA on the package, which had an inner and outer layer of wrapping, was consistent with that of two individuals neither of whom was in the dock, and who had no established link to the defendants. Each was named in the Admissions and each had connections to the world of drugs, at least according to untested police intelligence. This had not been known at the dismissal hearing. At first blush this development might have appeared to have more bite since no science linked any defendant to the packaging. However on more rigorous examination it is in our view of little evidential relevance. Inculpation of X and Y as rebuttably involved with the heroin falls a long way short of exculpation of the defendants from a criminal agreement as pleaded. It was always important that the world of drug dealing was seen in its context. Common sense indicates that this branch of commerce makes it likely that the goods or their containers or in this case their wrapping have passed through more hands than those in the dock.
20. The judge found that the Reko telephone could not, as had first been claimed by the Crown, be attributed to Johnson. This was presented to us by the respondents as a distinct change between dismissal ruling and ruling at the close of the Crown's case. This aspect of the case below puzzled us. DC Greenhough agreed there was no evidence to show Johnson had been in contact with Roach or Fowler or that he had made calls to either. He said there was no evidence Johnson had even been in possession of the Reko phone or that he ever used it. Understandably the defence emphasized this.
    Quite why DC Greenhough was thought qualified to interpret, rather than factually to set out, the evidence for the assistance of the jury is another matter. What the jury made of what the Crown could (and could not) establish about the Reko telephone was a matter for it and it required no overlay of interpretation even assuming one such were admissible. This aspect however need not trouble us.
21. The judge found that the November meeting and the presence in the car of £4000 was no help for the jury when it considered events in September. Had he had more assistance as he analysed the position we suggest he would have taken a different view. The telephone activity in September is the starting point. Then there was the meeting in November which, per the defendants, was for no reason. It included possession of £4000 by Thompson, for which there was no explanation. All of this was probative of the conspiracy and the meeting in November clearly informative in relation to September.
22. The only evidence against Johnson, it was said, was his presence in the car in November and Johnson had given an explanation in interview. That is correct so far as it goes. However that during that interview Johnson said money was handed over during the November meeting. He later appeared to dilute the force of that admission, but admission it was.
23. Our analysis reveals that the Crown could show the following: In September Fowler in Leigh was in contact with co-defendants. He left with a package containing heroin. After a gap of two months Gibson Siddeley Thompson Johnson and Nicholls met in secluded circumstances. After the meeting, next to Thompson, in one of their cars, was £4000 for which no-one offered a plausible explanation.
24. Information to be gleaned from telephone traffic, as so often in allegations of conspiracy such as this, proves its worth.
25. Reko over this period rang Johnson's girl-friend and Johnson's landline. Johnson's girl-friend's telephone had stored in it numbers used by Reko. Reko used the same cell sites as her telephone at the same time on the days flanking Fowler's visit to Leigh, suggesting the two handsets were together. The cell site used by Reko making calls to Fowler was consistent with the handset being at the address of Johnson and of Nicholls, a caravan site near Evesham. The Crown was entitled to invite the inference that Johnson used Reko, a number in play only from 23^rd September - 1^st October.
26. On 25^th September at 1539 Fowler rang Roach for long enough to permit of conversation. Roach promptly rang Gibson, also long enough for conversation. At much the same time Fowler rang Reko. After a few minutes Roach rang Fowler then Gibson.
27. For more than an hour beginning at about 1630 traffic included Reko to Fowler, and immediately Fowler to Roach, or Fowler to Roach then immediately Roach to Gibson. By 1817 Gibson reached the car park where Fowler had based himself in Leigh and got into Fowler's car. Fowler never left Leigh that night, staying overnight at a local hotel.
28. Next day, 26^th September, from 0932 Gibson Siddeley and Fowler breakfasted at Fowler's hotel until 1030. Fowler spent the balance of the day in Leigh and it included more telephone traffic of interest and significance. There were repeated sequences of calls: Fowler would call Roach whereupon Roach would call Fowler; Roach would call Gibson following which he would call Fowler: Fowler would call Reko following which he would call Roach. Variations on these sequences occurred throughout the day with a particular concentration in the hour prior to Fowler's departure. The Crown could rely upon this as suggesting arrangements about the heroin being discussed and/or made. Once it had that, it could remind the jury of the subject matter of the indictment and rely on the telephone data to support a criminal agreement, not only between those involved in these particular exchanges but also, arguably, by any to whom the tentacles extended.
29. The Crown could then turn to events as Fowler moved south. From 1900, when the Crown could suggest he was beginning or had begun his journey, traffic was abundant between Roach and Gibson, Roach and Fowler, Roach and Reko and Fowler and Reko. By 1949 Roach Siddeley and Gibson were together, at a locus at which Fowler had been recently seen.
30. Uninterrupted by arrest he would have been back in Leigh barring disruption no later than 2200. From 2150 there was a litany of attempted contact by Reko to Fowler's number. Since he was under arrest the Reko number did not speak to Fowler. Twice during this litany the Reko number contacted Roach.
31. Gibson, who denied knowing the content of the package, figured in the telephone traffic. The day after the arrest of Fowler, Gibson was one end of another litany of calls, many to or from Roach.

November

32. Roach was in custody. Gibson Siddeley and Thompson travelled south to an old quarry and within minutes were joined, in this secluded location entirely lacking in amenities, by Johnson and Nicholls. The cars pulled up driver to driver. Gibson got out and spoke to those in the Johnson and Nicholls car. On parting Gibson Siddeley and Thompson drove north, Johnson and Nicholls south. From Gibson's car from the position occupied by Thompson fell the two bundles of £2,000. Siddeley said he had been there to view a bike. All this was plainly probative, especially set against what the Crown could prove about September.
33. In interviews Nicholls and Gibson made no comment. Roach conceded he knew Johnson and Nicholls. He said that his 26^th September telephone contact with Nicholls concerned Fowler wanting money. Johnson said that in November he had given Nicholls a lift as asked and knew nothing of the purpose of the meeting save hearing an unspecific reference to some money. Siddeley admitted meeting Fowler on 26^th September but had paid no attention to any dialogue between Fowler and Gibson. In November he had time on his hands and he went along for something to do. He did not pursue the suggestion that he had been interested in buying a bike. Thompson initially adopted Siddeley's bike-buying account. In a later interview he conceded that was a lie. He then claimed the money was his savings.
34. The telephone traffic without more was sufficient for the Crown to answer the submissions at the close of its case. It provided evidence from which a jury could infer contact between defendants, during a time or times when conspirators would take a keen interest in keeping abreast of developments, or formulating plans, or understanding why things were not running to schedule, or all of the above. Leaving aside the telephone traffic, the Crown also pointed to Roach, Nicholls and Johnson serving in the same prison two years earlier. It could rely on the November meeting as supporting the continuance of the conspiracy after the September episodes.
35. We are confident that, had the judge had the assistance of the analysis as we have set it out, his vast experience of criminal trials coupled with his undoubted familiarity with these facts would have led him to reject the submissions.
36. We add that he is also criticized for having omitted from his citation of Goddard what might be the vital passage relating to putting the prosecution case at its highest. It is unnecessary for us to reach a conclusion on that point. Had we dealt with it in more detail we would have begun with a rehearsal of how, unimpugnably, the judge had dealt with the same extract at the dismissal stage and the unlikelihood that by the time of the challenged ruling he had forgotten any part of it as opposed to making one slip of the tongue.
37. For the reasons given we conclude that the judge made an error of principle, or reached a conclusion not reasonably open to him. We quash his decision and the trial will thus continue.