England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT MAIDSTONE
HIS HONOUR JUDGE BYERS
T20137235

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/12/2016

Lord Justice McCombe:

1. On 23 October 2013 in the Crown Court at Maidstone, before HHJ Byers, the appellant pleaded guilty to count 2 of the indictment in this case, charging him with Conspiracy to Evade the Prohibition on the Importation of a Controlled Drug of class B (amphetamine). Count 1 of the indictment charged him with a similar offence in respect of cocaine to which he pleaded "not guilty". His sentence on count 2 was adjourned pending the trial on count 1. On 11 November 2013, after trial before the same judge and a jury, the appellant was convicted on count 1. On 3 July 2015 he was sentenced to 12 years' imprisonment on count 1 and to 6 years' imprisonment to be served concurrently to the sentence on count 2, giving rise to a total sentence of 12 years' imprisonment. What follows explains the delay between conviction and sentence in the appellant's case.
2. There were two co-accused who stood trial with the appellant. First, there was a man called Draper-Smith who pleaded guilty to both counts and to a further charge of unlawful import of cigarettes. He applied for leave to appeal against conviction; the application was refused by the Single Judge of this court and has not been renewed. The second co-accused was a man called Machin in respect of whom the jury could not reach a verdict; they were discharged and re-trial was ordered. Machin came for re-trial together with seven other defendants in respect of the same conspiracy in April/May 2015 before HHJ Griffith-Jones QC. In the meantime, the appellant had declined an invitation to be sentenced prior to the conclusion of that trial. He renewed his application for an extension of time of 7 months and 10 days for leave to appeal against conviction following refusal of that application by the Single Judge. The renewed application came before us on 7 October 2016 when, along with giving other directions, we granted leave to appeal.
3. The appeal arises out of a complaint by the applicant as to prosecution disclosure at his trial. The facts of the underlying conspiracy alleged can be shortly summarised. From a time in 2011 the police deployed an undercover officer, using the alias "Terry", who posed as a freelance lorry driver and he developed a contact with the co-accused, Draper-Smith. In the prosecution case, the Crown adduced evidence from Terry as to dealings with Draper-Smith during 2012 in which smuggling of cigarettes, amphetamine sulphate and cocaine were discussed. There were a series of "cigarette" runs between the continent and this country in July, August and September 2012 in which Terry and Draper-Smith were engaged. In the autumn of that year (October and November) the discussions between Draper-Smith and Terry moved to importing amphetamine and cocaine. In April 2013 the appellant and Machin became involved.
4. What happened then was as follows. On 11 April 2013 Draper-Smith told Terry that drugs were now available for import and meetings followed at a pub in Kent. On 12 April Draper-Smith told Terry that he was going to introduce him to new people working for another co-accused called Willett (known by the alleged conspirators as "Land Rover Man") whom Terry already knew. Terry was told that that a consignment of 100 kilos of amphetamine and 5 kilos of cocaine was "ready to go". On 15 April, on the directions of Draper-Smith, the appellant and a man called Oldham came to the same pub. The discussions were recorded by Terry, but the quality of the recording was poor and the Crown relied upon Terry's oral evidence as to what transpired at the meeting. Terry's evidence was that the appellant's role was to be the arranging of the handover of drugs to Terry in the Netherlands, the handover to the next handler in the UK and the onward distribution in this country. They were to meet again to finalise arrangements.
5. There was a further meeting on 18 April 2013 between Terry and Draper-Smith at the same location at which it was intended that Oldham would introduce Terry to the man to whom the drugs were to be handed over. The applicant and Machin, at that time the intended recipient of the consignment, then arrived at the venue and what transpired was recorded both on audio and video. Machin was introduced as the man to receive the drugs. The appellant, it was said, also said that he had negotiated the purchase of 50 kg of amphetamine from a contact in Spain and there was discussion about this. Terry said that at the end of the meeting he arranged with the appellant for the handover of the drugs and a location for that handover was settled. Terry duly collected drugs from the Netherlands and returned to the agreed venue where handover was effected, not to Machin but to two further conspirators called Alliston and Long. At that stage the police descended and the arrests followed.
6. The defence case was simply that the applicant had been offered to be a party to the importation of amphetamine by Willett. He attended the meetings for that purpose and that purpose alone, never intending or agreeing to be involved with the import of cocaine which was, however, mentioned at both the meetings on 15 and 18 April. When the subject arose, he said, he simply kept quiet, not wishing to get involved in that matter with men whom he had not previously met. He said that after the second meeting he disposed of his phone implicating him in the meetings and withdrew from the enterprise entirely. It is submitted that there was and is no demonstrated connection between the applicant, on the one hand, and Alliston and Long on the other. Alliston and Long eventually received the drugs later in April 2013, as we have mentioned. The applicant was arrested in Nottingham within minutes of the swoop on Alliston and Long and telephones recovered at that time showed no link between the appellant and those two men.
7. During the course of the applicant's trial Terry was cross-examined on the basis that it was he who had driven the discussion about the drugs deal at the meeting on 15 April and that neither the applicant nor Oldham made any reference to cocaine. Terry's evidence was that there was a roundtable discussion in which all participated. The reason for the absence of material from the transcript of the recording was that the quality of it was so poor. Mr Kearney, who appeared for the appellant at trial, as he did before us, put to Terry that he was lying about that.
8. The jury proceeded to convict the appellant on count 1.
9. The procedural history thereafter appears from a written open ruling of Judge Griffith-Jones QC of 28 May 2015. At the re-trial, at an early hearing, orders were made for the disclosure of certain material underlying the records of the undercover investigation. Some, it was said, had relevance to the credibility of Terry and had become the subject of a PII applications before Judge Griffith-Jones prior to trial. At that stage disclosure was refused both on grounds of relevance and on public interest grounds. However, as a result of cross-examination of Terry by counsel for a defendant called Lee, concerning a meeting on 24 April 2012, about a year before the involvement of this appellant, the Crown disclosed a de-briefing note of the meeting. It was suggested that the note did not record any suggestion that cocaine had been discussed with Lee. This led to a further PII hearing in relation to other material, which the judge described in his ruling as becoming "protracted". Ultimately, the judge did rule that certain further information relating to the meeting on 24 April 2012 should be disclosed notwithstanding the Crown's resistance. The judge considered that the disclosure might be relevant to the credibility of Terry in relation to other defendants and ordered that disclosure should be made to them also.
10. At that stage, for public interest reasons, the Crown decided that they could not make the disclosure required and decided not to proceed against other defendants.
11. This turn of events prompted applications to be made by Willett, Oldham, Machin, Draper-Smith and the appellant to vacate the various pleas that that had been entered by them in relation to certain of the charges. In the case of the appellant, the application was made to vacate his plea of guilty to count 2 to which we have referred. The judge refused all the applications, largely because the pleas amounted to unequivocal admissions of guilt of the offences concerned and that non-disclosure that had emerged in the case could not be categorised as any abuse of process on the part of the Crown. Further, the material in issue in reality only bore real relevance to the case of Lee, rather than the cases of those other defendants. He said,

"The significance of the relevant information was that it went to Terry's credibility. I would also add, incidentally, that it related directly only to the case against Mr Lee and, whilst disclosable more generally, had only indirect (and in some cases only marginal) relevance to the case against the other applicants."

12. It is now submitted on the appellant's behalf that his conviction is unsafe on count 1 because the Crown has failed to disclose, before his trial, such material as appeared to Judge Griffith-Jones potentially to be relevant to the credibility of the witness, Terry. It is submitted that if the applicant had stood his trial with the others, the likely result would have been that he too would have been acquitted on the basis of the Crown's unwillingness to proceed in the face of the order for disclosure of the material relating to the meeting with Lee in April 2012 and the failure to resist disclosure on public interest grounds. His position, it is said, would have been no different from that of Machin, who was initially tried with him and was later acquitted when the Crown declined to proceed against him at the re-trial.
13. At the hearing on 7 October 2016, after hearing Mr Temple for the Crown in private, we ordered the Crown to disclose to the appellant's representatives the materials which they had already disclosed to Mr Lee's defence team at the re-trial, i.e. a de-briefing note of 24 April 2012 relating to the meeting with Mr Lee and others on that day. We also directed disclosure of the sound recordings of the meeting and an audio aide-memoire compiled by Terry shortly after he had left the scene of the meeting on the same day. We saw no need to direct any further disclosure.
14. The meeting on 24 April 2012 had two parts: a first part when Draper-Smith, Terry and a man identified as George were present and a second part after Lee arrived.
15. Having seen and heard these materials, Mr Kearney pointed out the poor quality of the sound recordings and that most of the exchanges are inaudible, save for Terry's own contributions. There are, he submitted, no recorded discussions with Mr Lee about cocaine, just as the appellant says there was no active discussion between him and the others about cocaine at the meetings a year later.
16. Mr Kearney pointed to three particular passages in the materials which he said could not be justified in the light of the absence of corresponding materials on the recordings. First, he picked out this from the transcript of Terry's aide-memoire voice recording after the meeting on 24 April 2012:

"…I went over the Spanish problem about me getting legitimate work first, we discussed prices and the prices were pretty much agreed that it would be £250 per kilo on the green, about £2500 on cocaine, in relation to wiz or the fast one, amphetamine sulphate, I was asking for £1500 they were saying they paid the same as cannabis which was about £250, so they said that wasn't viable…" (p.22 line 2-7)

In the debriefing note, the following appears:

""We went over the run and commodity as follows. Green £250 a bit, white Percy asked for £2500 a bit. Nathan asked me about the fast one (A/sulphate). I said £1500 a bit and he said that was too much and would pay £250 per bit…" (End of page 27 line 203)

Mr Kearney argued that this in turn was inconsistent with the note for the period when only Terry, Draper-Smith and George were present which took this form:

"He (Percy) asked me how much I would charge for the white and I said £1500-00 per kilo. Percy said his people may pay as much as £2500 or even £3000 per bit so if he said if I could get that price would I give him £500 per bit as a drink and I said I would.." (End of page 23 into page 24)

17. Mr Kearney argued that this type of discrepancy, relating to the April 2012 meeting, suggested viable further material that could have been deployed at the appellant's trial to seek to discredit Terry before the jury.
18. Without descending into the detail, Mr Kearney also argued that there was a discrepancy between Terry's evidence and an audio recording of a conversation between him and one of the co-accused called Wheat while collecting the consignment in the Netherlands. This material was put to Terry at the appellant's trial and Terry said that the discrepancy was to be explained by the fact that part of the written record was his "perception" of what was being communicated overall. Mr Kearney argued that the discrepancy was an issue going to the credit of Terry which would have been reinforced by the material from 24 April 2012, had it been available.
19. Mr Kearney further submitted that it simply was not fair that, because the appellant was tried first in the October of 2013 and separately from the other defendants, including Machin for a second time, he was deprived of the likelihood of acquittal when the Crown declined to proceed in the face of Judge Griffith-Jones's decision to order further disclosure from the Crown. He said the result was "unfair" and referred us to passages from the judgment of Lord Hope of Craighead in McInnes v Lord Advocate [2010] UKSC 7 at [20] and [24], cited by Lloyd-Jones LJ, giving the judgment of this court in Garland [2016] EWCA Crim 1743 at paragraphs 36 and 37. In the second passage Lord Hope said this:

"The question which lies at the heart of it is one of fairness. The question which the appeal court must ask itself is whether after taking full account of all circumstances of the trial, including the non-disclosure in breach of the appellant's Convention right, the jury's verdict should be allowed to stand. That question will be answered in the negative if there was a real possibility of a different outcome – if the jury might reasonably have come to a different view on the issue to which it directed its verdict if the withheld material had been disclosed to the defence."

20. Mr Temple for the Crown argued that the conviction on ground 1 was safe. He argued that the differences in terms used in the records of the meeting of 24 April 2012 were not true discrepancies at all. He submitted that the fair reading of the transcripts and by listening to the oral recording (which had been possible for counsel but not for us) was that at the first part of the meeting Terry had been pretending that his price for shipping cocaine would be £1500 per kilogram. Draper-Smith had indicated that he believed that it would be possible to extract a higher price. Terry said that £1500 per kilogram was his minimum, but that "if you can get up to those sorts of numbers then I will give you a money [£500] for every bit [kilo]…".
21. When Lee joined the meeting somewhat later, Terry played along with getting a higher price. In what, Mr Temple said was the crucial passage on this topic, Terry is recorded as saying, "Looking at about fifteen (inaudible) something like that, fifteen-ish for the (inaudible), for the white [cocaine] or anything else is obviously going to be considerably more". By this stage, argued Mr Temple, Terry was pitching for £1500 per kilogram for amphetamines and looking for more for cocaine. Shortly after this, an unidentified speaker (who the Crown contended was Lee) said, "Fifteen hundred quid that's far too much…" (meaning, said Mr Temple, amphetamine). Then Terry said, "Yea, but I'm bringing it in on there aren't I. What are you paying on that at the moment". "Not a lot (inaudible)…", said the unidentified speaker (Lee?), "…On the coke (inaudible) talking good money (inaudible)…green [i.e. cannabis]".
22. Mr Temple submitted that this type of price haggling, actually recorded, was quite consistent with the subsequent notes made after the meeting in which figures are recorded, not always identical but reflecting the bargaining process that went on. He argued that the passages to which we have referred, together with one further passage on the recording for the period when Lee was present, showed that "white" or cocaine was discussed; the issue was Lee's participation/agreement in the proposal to ship cocaine.
23. Having made these submissions, Mr Temple submitted that the conviction was safe, there had been (as Judge Griffith-Jones found at the later trial) no breach of the Crown's disclosure obligations. Thus there was no potential for "unfairness" from such a breach in any event, since there was nothing in the additional material that either reflected on the credit of Terry in any event and none of it had any relevance to the important discussions involving the appellant a year later.
24. In our judgment, Mr Temple is correct. There was no breach of the Crown's obligations of disclosure in this case. The proof of that is that Judge Griffiths-Jones found that there had been no breach, at the much later stage of proceedings, when he initially ruled that none of the material in issue had relevance in the trial that was to be conducted before him. The potential relevance in Lee's case only emerged after cross-examination conducted by counsel for Lee.
25. In the present case, the same applied. There was no relevance of this material apparent at the disclosure stage. At the appellant's trial, when Mr Kearney cross-examined Terry upon his evidence as to the business transacted at the April 2013, we do not consider that anyone could reasonably have been expected to think that the further materials which we have seen about a meeting a year earlier involving other people could have any relevance, even given the line of challenge to Terry's evidence that Mr Kearney was pursuing.
26. In our judgment, for the reasons given by Mr Temple, we do not consider that anything in the materials involving Lee in April 2012 had relevance to the events involving this appellant a year later.
27. As demonstrated by the judgment of this court in Garland (supra), the question for us is whether the additional material causes us to doubt the safety of the appellant's conviction, having regard to the question of what impact that material might have had on the jury in this appellant's trial: see the judgment delivered by Lloyd-Jones LJ at [55]. We answer that question in the negative. It seems to us that the jury in the appellant's trial had before it all material that was truly relevant to the issues before them. There was nothing in the material relating to Lee which could truly have been deployed as a test of Terry's evidence against the appellant. The credibility of Terry was properly tested by Mr Kearney before the jury, but they returned the verdict that they did, in the face of the appellant's evidence which they had also heard.
28. There is nothing unfair to the appellant in the processes that followed at the re-trial of the other accused. We are not in a position to judge the material presented against Machin or his defence to that material; we make no comment upon it. It is possible that Machin was fortunate to reap the benefit of the disclosure decision made by the judge, in respect of material which the judge described as having only indirect and, in some cases, only marginal relevance to defendants other than Lee. However, that does not bear upon the safety of the appellant's conviction.
29. In our judgment, therefore, we have nothing that causes us to doubt the safety of this conviction and we dismiss the appeal.