Jersey Unreported Judgments

[2010]JCA084

COURT OF APPEAL

5^th May 2010

Before     :

Dame Heather Steel, D.B.E., President; Michael S. Jones, Esq., Q.C., and; James W. McNeill, Esq., Q.C.

Curtis Warren

Jonathan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

-v-

The Attorney General

Applications for leave to appeal against conviction by Warren, Welsh, O'Brien, Woodward, Hunt and Lucas.

Applications for leave to appeal against sentence by Warren, Welsh, O'Brien, and Woodward.

HM Solicitor General H. Sharp Q.C.

Advocate S. M. Baker for Warren.

Advocate S. E. Fitz for Welsh.

Advocate J. W. R. Bell for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

JUDGMENT

THE president:

Introduction

1.        On 7th October, 2009, following a trial before Commissioner Sir Richard Tucker and a jury, the six applicants were each convicted of an offence of conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis resin, contrary to Article 6 (2)(b) of the Customs and Excise (Jersey) Law 1999.  The particulars of that offence were that, between 1st May, 2007, and 23rd July, 2007, the applicants conspired together, and with Mohammed Liazid and others, to import a controlled drug, namely cannabis resin, into the Island of Jersey.

2.        On 3rd December, 2009, the applicants were sentenced as follows:-

Warren: 13 years' imprisonment;

Welsh: 12 years' imprisonment;

O'Brien: 10 years' imprisonment;

Woodward:  5 years' imprisonment;

Hunt: 5 years' imprisonment;

Lucas: 5 years' imprisonment.

Grounds of Appeal against Conviction

3.        The applicants presented the following Grounds of Appeal in support of their applications for leave to appeal against conviction:-

(i)        Warren:-

"1. The discharge of a juror ('juror 125') and the Commissioner's subsequent refusal to enter Court to hear defence counsel on questions of discharging the remainder of the jury."

"2. Failure of prosecution to provide proper and timely disclosure."

"3. The Commissioner's refusal to allow the defence to call the witnesses Pashley, Beghin and Jowitt."

"4. The Applicant did not receive a fair trial."

(ii)       Welsh adopted Warren's four Grounds of Appeal.

(iii)      O'Brien adopted Warren's four Grounds of Appeal and added the following further Ground (which we consider in conjunction with, but separately from, Ground 2):-

That the Commissioner wrongly refused O'Brien's application to reverse his earlier ruling, that O'Brien's previous conviction was admissible in evidence, on the ground that the late disclosure of material had changed the position, and that, as a result, there was a miscarriage of justice.

(iv)      Woodward adopted Warren's four Grounds of Appeal.

(v)       Hunt adopted Warren's Grounds of Appeal 1, 3 and 4 and added two further Grounds (which we consider together as Ground 5):-

(a)       That the Commissioner erred by giving the jury a conspiracy direction on one or more conspiracies, but then failed to give a full and correct explanation as to how that direction should be applied to the facts of this particular case; and

(b)       That there was no evidence or no sufficient evidence from which the jury could be satisfied that Hunt had knowledge of, or agreed to take part (in pursuance of a criminal purpose held in common between them) in the Warren/Liazid importation of 60 Kg and/or the Welsh importation of 60 Kg of cannabis resin. 

(vi)      Lucas adopted Warren's four Grounds of Appeal.

The Crown Case

4.        The Crown alleged a single conspiracy formed during June and July 2007, to which each of the six applicants was a party.  The purpose of the conspiracy was to acquire 180 kilograms of cannabis resin, with a wholesale value in Jersey of £720,000 and a street value of £1 million.  The drugs were to be bought from traffickers in Holland, and transported by road from Amsterdam to the Normandy coast and thereafter by boat to Jersey, to be sold on the streets.  In the event, no drugs were acquired.  The applicants had been under police surveillance from an early stage; the police intervened before the drugs were obtained and the importation was foiled.  Warren orchestrated the conspiracy.  He knew and had direct contact with the main coordinators in Jersey and Holland from source to distributor.  He had described the planned importation as "a little starter."

5.        Welsh, who had known Warren for some twenty years and lived in Jersey, was at the hub of the conspiracy throughout June and July 2007.  He invested his money in the scheme and recruited the other Jersey applicants to provide additional finance and transport.  Together with Liazid, Warren's associate in Holland, he was instrumental in coordinating the practical arrangements necessary to execute the object of the conspiracy in Jersey and Holland respectively.  He spent a substantial amount of time with Warren and travelled to Amsterdam to meet with Warren's co-conspirators during the peak of the conspiracy.

6.        O'Brien, a skilled boatman, was recruited by Welsh on 15th July, 2007, to bring a large part of the cannabis resin to Jersey by boat from the Normandy coast.  In 2002 he had been convicted of importing 59.7 kilograms of cannabis resin by boat from the Normandy coast to Jersey.

7.        Hunt was a party to the conspiracy from the outset.  He was in frequent contact with Welsh from late June 2007.  It was originally intended that he, with Woodward, would bring all the drugs from Amsterdam.  Hunt owned a boat in 2007, and was the only boatman concerned in the conspiracy prior to the recruitment of O'Brien.

8.        Woodward and Hunt were to provide 18,000 Euros of their own money, in order to secure their personal interest in the drugs.  They were unable to raise the necessary funds, which led to the postponement of the importation on more than one occasion.  Lucas was brought in by Woodward and Hunt to provide additional finance.

9.        Hunt, Woodward and Lucas travelled to Normandy on 21st July, 2007, with the equivalent of 3,500 Euros, to pay for their share of the cannabis.  The Dutch sellers considered this sum too small and the deal was postponed until the following week.

10.      Lucas was not a party to the early meetings among Welsh, Woodward and Hunt, but he provided a substantial cash input of 1,875 Euros.  He purchased a new pre-pay mobile phone on 18th July, the day before Welsh left for Amsterdam, specifically to assist in the conspiracy and used it to call Welsh and Liazid in Amsterdam.

11.      The applicants were all arrested during a thirty six hour period from the evening of 21st July.

The Evidence

12.      The prosecution evidence consisted largely of police surveillance records and photographs, records of telephone use, audio recordings of conversations and vehicle tracking.  We say more about the evidence when we consider the second Ground of Appeal.  During the trial, the applicants made substantial admissions in relation to much of this evidence.  The content of the prosecution working documents, which were before the jury in relation to the audio evidence, was not admitted.  It was for the jury to accept or reject that the printed words alleged to represent the words spoken and recorded did so.

13.      No applicant gave evidence. O'Brien and Hunt each called a witness.  Admissions were made that Woodward had been a friend of Hunt and Lucas for several years.

Consideration of the Grounds of Appeal

Ground 1

"The discharge of juror 125, and the Commissioner's subsequent refusal to enter court to hear defence counsel on questions of discharging the remainder of the jury."

Context of Ground 1

14.      This was a high profile, high security trial.  When it began on 16th September, 2009, obvious high security measures were in place in and around the court, as they had been at all earlier hearings.  At the commencement of proceedings, an ex parte application was made by the prosecution, without notice to the defendants, after which the Court was convened in chambers.  In the presence of defence advocates and the defendants, the Commissioner indicated that, on the material provided to him, he was persuaded that attempts had been made to influence the jury.  He raised the possibility of discharging the jury pool, which he said he would do with some reluctance, or, in the alternative, question the jury panel as a whole as to whether they could bring an open and impartial mind to the "task which lies ahead and whether they can return a just and true verdict in accordance with their oaths or whether on the other hand they feel influenced by any outside material."  He invited advocates on both sides to consider the wording of a suitable question which would not give the jury any impression that any of the defendants had been guilty of attempting to corrupt its members, whatever the material he may privately have received.

15.      After an adjournment to enable the defence representatives to consult with their clients, Advocate Baker indicated that their preference was that the trial should take place as soon as possible.  After further discussion, a question for the jury panel was agreed in the following terms - "Has anything occurred, been said to you, heard by you or read that you feel may or will influence your ability to sit on this jury?  Can you bring an open and impartial mind to the task and return a just and true verdict or do you feel influenced by any outside material?"  The Commissioner raised the issue of jury protection, and indicated that he was satisfied that that would be a proper measure to take.

16.      The jury selection procedure was undertaken with extreme care.  The panel was asked the above questions and was told that if any felt that he or she had been influenced by any outside material, all that person had to do was to claim exemption; they would be released from jury service and no further questions would be asked.  From a panel of 67 potential jurors, some 20 were the subject of peremptory challenge or were excused for valid reasons and one was challenged for cause by the Crown.

17.      The members of the jury were called by number in accordance with established practice, and no defence objection was raised in relation to that procedure.  Once the jury was sworn, it was given appropriate directions and warnings regarding the requirements of jury service and was told that, for the duration of the trial, jury members would be under police protection.  The jury was reminded of these warnings as the trial progressed.  Before the opening of the Crown case press reporting conditions were lifted, save for a restriction on the photographing of any juror.

18.      No issue is raised in relation to these events.

19.      At a very early stage in the trial, during the cross-examination of the first witness, the reason for the security would have become apparent to the jury.  Evidence was adduced by the defence to the effect that Warren was a notorious career criminal, with a reputation for trafficking in illegal drugs.  The jury was told that he had amassed a considerable fortune and had been at liberty for only about three weeks in the last 13 years.  His last conviction had been in Holland in 1997 for drugs and firearms offences and, whilst in prison, he had killed another prisoner and was sentenced to four years imprisonment for manslaughter.  Further, he was the subject of a book, which was widely available, about his career.  It would appear that this evidence was elicited in support of the suggestion, which was advanced by the defence, that the combined law enforcement agencies of England, the Serious Organised Crime Agency and/or the Dutch authorities and/or the police and prosecuting authorities in Jersey had dishonestly fitted him up for the charge which he faced.

20.      On 5th October, 2009, when the Commissioner was about to begin his summing up, the Crown Advocate appeared before him, ex parte, in chambers.  No notice of that appearance had been given to the defence.  In light of what he was told, the Commissioner instructed that juror 125 be discharged.

21.      Following the ex parte hearing, the Commissioner informed all advocates that, on the evidence placed before him, he had grounds to believe that one member of the jury had been contacted by outside sources, during the course of the trial.  In addition, six silent calls had been made to the wife of juror 137, on her mobile telephone.  He advised advocates that he had instructed that juror 125 should be discharged.  He told them that he proposed to ask the remaining members of the jury certain questions in court, to satisfy himself that no further difficulties remained.  He indicated that he wanted to investigate with juror 137 whether he felt able to continue to sit and remain uninfluenced and return a just verdict, notwithstanding that his wife has received the silent calls.  He proposed to tell the juror that there was no evidence that the calls had anything to do with the case. 

22.      The Commissioner invited the advocates' observations on the course which he proposed to take and stated that he was considering giving the jury the following direction; "Members of the jury, you will recall that I ordered police surveillance in this case.  As a result of information which I have received I have discharged one of your number, juror 125.  You must not hold these events against any of these defendants.  I must emphasise that you must not let this event influence or colour your approach to the case.  I must ask you two questions.  Can you confirm whether or not juror 125, the one that I have discharged, has provided you with extra information about the case that you have not heard in evidence in court?  Do you still feel able to continue to sit on the jury and return a just and true verdict in this case?"

23.      He indicated that juror 125 was being kept separate from the remaining members of the jury, that he had no alternative but to discharge him, and that he intended if possible to continue the case with eleven jurors, explaining that he would be very reluctant to discharge the whole jury.  That, he said, would mean delay and a retrial "and no one wants that to happen."  The Commissioner observed that he was not being asked to discharge the jury as a whole. Advocates' observations were invited and they were offered time to consider their position.

24.      On return to court, Advocate Baker was asked by the Commissioner whether defence advocates were content with his proposals and he replied that they were.  Specifically, the Commissioner was advised that all defence advocates were content that the juror whose wife had been telephoned should be questioned about that and asked if he felt able to continue, and were in agreement with the proposal that the Commissioner should have all the remaining jurors in Court, tell them that he had discharged juror 125 and ask them the questions he proposed.

25.      Juror 137 was then brought into court and questioned, in the presence of the defence, about the telephone calls.  He confirmed that he was able to reach a true, uninfluenced and just verdict in the trial and that he was content to remain on the jury.

26.      The remaining jurors were brought into court.  The Commissioner told them that what he had to say to them was being said in the absence of the public and the press and would not be reported.  He told them that, as a result of information that he had received, juror 125 had been discharged, and that he hoped that the trial would continue with a jury of eleven members.  He continued:-

"You must not hold these events against any of the defendants.  I must emphasise that you must not colour your approach to the case.  I am also aware of another event which I have discussed with another member of the jury.  What I want you all to think about, please, now, and confirm is whether or not the juror I have discharged, number 125, has provided you with any extra information about this case that you have not heard in evidence in court.  Insofar as that juror may have expressed a view, either in favour of the Crown or the defence, you should disregard that view.  The second question I want to ask, and it is an important one, do each of you still feel able, as I hope you do, to continue to sit on the jury and reach a just and true verdict in this case?   Now, if any of you feel any doubts about the answers to those questions will you say so now?  Do I take it that each of you feels able to continue to sit on the jury and reach a true and impartial and just verdict?  Thank you very much."

27.      The Commissioner then summed up the case to the jury who retired to consider their verdicts.

28.      At 17.39 on 5th October Advocate Baker, on behalf of all of the applicants, sent an email to the Crown Advocate, in the following terms:-

"I have reflected on events this morning whereby a juror was discharged following an ex parte application by the Crown.  I am uncomfortable at this turn of events.  I do not know why an ex parte application would be made in such circumstances particularly without notice.  Why at the very least would notice not be given of such an application? 

"I am also concerned that a juror was discharged without any opportunity for the defence to make submissions or even to know any detail of what the problem was.

"I am troubled as to how the Crown became involved at all.  Did the juror liaise with the Viscount?  If the juror did liaise with the Viscount I cannot understand how the Crown would come to be involved.  The communication should be from the Viscount to the Commissioner who would then raise the matter with the parties.  Could you explain to me how the Crown came to be involved?"

29.      During the morning of 6th October, Advocate Baker provided a copy of that email to the Judicial Greffe, saying that he wished to make submissions to the Court on the matters which he had raised with the Crown.  He was advised that the Commissioner had declined to come into court because he had ruled on the matter the previous day and the jury had now retired.

30.      Advocate Baker's request was recorded in an email sent to the Greffe at 14.43 the same day.  It reads:-

"For the avoidance of doubt I thought it might be helpful to set out in writing what I told you orally this morning namely that it had been my intention to make submissions to the Judge on the correspondence which I handed you this morning.

The message you gave me was that the Judge had declined to come into court because he had ruled on the matter yesterday and the jury had now retired."

The Basis of the Court's Decision to Discharge

31.      Before we heard submissions in support of this Ground of Appeal, we were invited by the Crown to consider the material which had been before the Commissioner in the ex parte hearing of 5th October.  In an email to the Court, dated 22nd March, 2010, Advocate Baker had intimated that the applicants considered that it would be proper for this Court to review that material.

32.      Following the communication from Advocate Baker, we examined and considered all the material which was before the Commissioner at each of the two ex parte hearings.  We read the transcripts and the Commissioner's written Judgment in relation to these matters. 

33.      Independently of the Commissioner's Judgment and ruling, and keeping in mind that this is an application for leave to appeal and not a rehearing, we are satisfied that, on 5th October, 2009, the Commissioner was provided with material which entitled him to conclude that the ex parte hearing was necessary and that the circumstances were such that the material should not be disclosed, nor reasons given to the defence for the discharge of the juror other than the careful words he used, that he had grounds to believe that one member of the jury had been contacted by outside sources.  We are satisfied that the material fully justified the Commissioner's ruling that juror 125 be discharged, and that the silent telephone calls which had been received by the wife of juror 137 be investigated with juror 137.  Further, we are satisfied that it would have been inappropriate in the circumstances to have invited submissions from the defence prior to the discharge of the juror.

34.      We note that Advocate Baker appeared to recognise the principle that a judge is entitled not to disclose the reasons why he may see fit to discharge an individual juror or an entire jury when he was told of the intended discharge of juror 125 on 5th October and replied "we, of course, cannot see any of the evidence which has been put before you."

Submissions for the applicants

35.      Advocate Baker submitted that what took place constituted a material irregularity, that the applicants were denied natural justice and that, in consequence, there had been a miscarriage of justice.

36.      The applicants emphasised that no notice had been given to defence counsel of the ex parte application, and that they still have no knowledge of what took place.

37.      The applicants complain that they were given no true opportunity to make submissions in advance of the discharge of the juror or to test the validity of the decision after it was announced as a fait accompli.  Whilst the defence had agreed that the trial should proceed, no notice had been given that submissions about the discharge of the remainder of the jury were to be expected.  Having been excluded from the facts available to the Crown and the Commissioner, defence advocates were handicapped by ignorance of detail as to why the juror had been discharged, only knowing there had been contact from "outside sources."  Without any sufficient information or notice, and with only a preliminary indication from the Commissioner of his own views, defence advocates were not placed to make a case for the discharge of the remainder of the jury. 

38.      On reflection, and in the light of his concern that the ex parte application had been made without notice, on 5th October Advocate Baker emailed the Crown Advocate in the terms set out in paragraph 28 above.  The Crown Advocate refused to provide further information or to answer questions on this matter. 

39.      On 6th October the Commissioner was asked to come into Court to receive representations and submissions in open Court; but he had declined.  Because the Commissioner had refused to hear defence advocates, the defence was precluded from properly considering or applying for the discharge of the jury.

40.      It was submitted to this Court by Advocate Baker that there was a real possibility that he would have applied for the discharge of the jury and, without further information, he was denied the opportunity to take instructions or to do so.  He accepted, however, that defence advocates had been given time to consider matters when the issue was raised in Court by the Commissioner and that they had input into the jury question.  He maintained, however, that they were in a difficult position when the Commissioner had indicated what he was minded to do and they were forced to rely on his view as to what should happen next, when only he and the Crown knew what had happened in chambers. 

41.      Turning to the way in which the remaining jurors had been questioned, Advocate Baker submitted that, rather than asking the questions of the jurors together, the Commissioner should have sent them to reflect and then questioned each one individually.  He further suggested that, by using the words "as I hope you do" when asking the jurors if they were able to continue, he was wrongly indicating the answer that he wanted from them.  He acknowledged, however, that, although no response from the jurors is recorded on the transcript, their assent must have been indicated otherwise the trial would not have proceeded further.

42.      When the Commissioner told the jurors of an event which he "had discussed with another member of the jury" (juror 137), he had failed to counsel that juror to silence nor had he directed the other jurors not to ask questions of that juror.  He did not warn the other jurors against speculation to the detriment of the accused in respect of this other matter.

43.      The applicants submit that these events amounted to serious material irregularities, and we were referred in the written contentions to the general authorities of R-v-Hambery [1977] Q.B. 924, R-v-Hutton (1990) Crim L.R. 875 and R-v-Momodou and R-v-Limani [2005] 1 WLR 3442.

44.      It was contended that the Commissioner's refusal to hear advocates on the discharge point breached an elementary rule of natural justice.  The applicants had been denied the right to be heard.  Defence advocates could not participate effectively in the conduct of the case; so the appearance of a fair trial was lost.  Justice should not only be done, but should "manifestly and undoubtedly be seen to be done."  R-v-Sussex J.J. Ex p. McCarthy [1924] 1 KB 256, per Lord Hewart CJ.

45.      It was argued on behalf of the applicants that the assent of the accused to the continuation of the trial, while not determinative, is nevertheless relevant, so that to refuse to hear defence advocates was to ignore a relevant consideration: R-v-Smith and R-v-Mercieca [2005] 1 WLR 704.  The effect of the events complained of here was to vitiate the discretion exercised.

46.      Because the Commissioner had refused to hear defence advocates, the defence was precluded from properly considering whether or not to apply for the jury to be discharged.  Nevertheless, even when there has been no application made at the trial for discharge of the jury, this Court is not, as a matter of principle, precluded from investigating the safety of a conviction: R-v-Shuker and Shuker 1998 Crim. L R 906.

47.      It was inappropriate for the Commissioner to give his personal indication of the decision he hoped for from the jury.  He did not say what steps he had taken to investigate any suggestion of improper approaches having been made to either juror and did not conduct proper enquiries of the remaining jurors so as to make possible an informed exercise of his discretion as to whether or not any or all of the jurors should be discharged: the written contentions cite R-v-Blackwell 1995 2 Cr. App. R. 625; R-v-Putnam 1991 93 Cr. App. R. 281; and R-v-Appiah (1998) Crim. L.R. 134.

48.      The Commissioner gave no reason for his decision to discharge the juror and no reason for his refusal to hear defence advocates thereafter so that the appearance of fairness was lost.   Such fair trial requirements under the European Convention on Human Rights are referred to in Hiro Balani-v-Spain (1995) EHRR 566.

Submissions for the Crown

49.      In response, Her Majesty's Solicitor General submitted that the Commissioner was correct to hold an ex parte hearing, in accordance with the principles set out in R-v-Comerford [1998] 1 WLR 191.  There was no prejudice to the defence.  The applicants were informed that juror 125 had been contacted by outside sources, justifying his removal.  Defence advocates knew, therefore that the key issue was whether juror 125 had said anything to the remaining members of the jury.  The Commissioner asked relevant questions of the jury.  It became clear that there had been no contamination.  The jury received appropriate directions and it was proper to continue.

50.      Warren's attempt on 6th October to re-litigate the removal of the juror had no legitimate purpose.  The issue was whether that juror had spoken to other jurors, not how he came to be removed in the first place.  The Commissioner was entitled to decline to hear the application.

51.      The legal principles, as set out by Lord Bingham of Cornhill CJ in R-v-Comerford, cited above, at pp 198H - 199B, had been put before the Commissioner at the beginning of the application and are summarised as follows:-

(i)        The starting point is that applications in respect of the jury should be made in the presence of the defence.

(ii)       Any ex parte communication between the prosecution and the judge should be kept to a minimum.  The judge must be satisfied that it is necessary and would not render the trial process unfair.

(iii)      If a judge is satisfied that an ex parte application is necessary, and the material before him provides proper justification, he may dismiss a member of the jury and make such directions to protect the jury as he sees fit.  If the circumstances so justify he need not give reasons to the defence; nor invite submissions prior to dismissing a juror; nor disclose what was said in the ex parte application;

(iv)      The Court of Appeal is entitled to review the decisions of the judge on an ex parte basis if it sees fit.

52.      It was submitted by the Solicitor General that it was necessary to conduct an ex parte hearing, without notice, to withhold from the defence the content of the communications and the material produced, and to refuse to elaborate upon the reasons for the juror's discharge.  The Commissioner was obliged to remove juror 125 for the reasons given at the ex parte hearing.

53.      The Crown further referred this Court to two recent decisions of the English Court of Appeal in relation to "jury tampering" and the provisions of the Criminal Justice Act 2003, which concern trial without a jury; and where the principles in R-v-Comerford, set out above, were revisited.  In R-v-Twomey and Others [2010] 1 WLR 630, at paragraphs 25 and 26, Lord Judge CJ said:-

"25  ... ... Experience suggests that the seriousness of jury-tampering problems is usually proportionate to the seriousness of the alleged criminality.  There will be cases where the evidence to demonstrate the risk of jury-tampering will be so sensitive that it can only be addressed under PII principles.  Mr Aspinall [on behalf of the defendant] would argue that, important though these considerations may be, he has nevertheless been unable to address the evidence of the alleged danger.  The application should therefore fail.

"26 The immediate attraction of the argument is plain.  If correct however it would produce a remarkable outcome.  It would mean that the court's ability to discharge a jury because of jury-tampering and order trial by judge alone could never be exercised if the evidence of the real and present danger were so sensitive that it could not be disclosed to the defendant.  In short, the process could not apply where the actual or potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health or involve the disclosure of police operational evidence or methodology which if disclosed, would be of considerable interest to the criminal world and damaging to the public interest.  In such cases, faced with an order for disclosure, the Crown would be left with no alternative but to discontinue the prosecution.  If so, the objective of the jury-tampering would have succeeded.  In short, therefore, we reject the submission that the evidence relied on by the Crown, or the bulk of it, must always be disclosed.  This would indeed represent what Lord Bingham of Cornhill CJ in R-v-Comerford [1998] 1 WLR 191, 198 described as "the ideal".  It is, as he observed, "an ideal which cannot always be achieved in practice".  We agree that the evidence should be disclosed to the fullest extent possible, but it would be contrary to the legislative purpose to make an order for disclosure which would in effect, bring the prosecution to an end, and enable those who had been involved in jury-tampering to derail the trial and avoid the consequences prescribed by statute, trial by judge alone."

54.      In R-v-S(K) [2010] 1 Cr App R 20, the English Court of Appeal expressed this view, at paragraph 20:-

"It is an inevitable concomitant of the extended powers of the court to control jury-tampering that there will be occasions when public interest immunity principles will apply to the information brought to its attention.  In reality the principles are not new; the judge has always been entitled not to disclose the reasons why he may see fit to discharge an individual juror or an entire jury.  In any event it is obvious that if they were disapplied there would be occasions when the court would be obliged to continue with a trial even when satisfied after an examination of the evidence submitted under public immunity principles, that the jury was contaminated by, and as a result of, tampering.  In other words, the court would permit a tainted jury to deliver its verdict, notwithstanding that clear evidence which demonstrated that the verdict would not be or would be unlikely to be a true verdict reached by an uncontaminated jury.  That would make a nonsense of the legislation, and indeed, quite apart from making the judge complicit in the successful contamination of the jury (successful because the trial is allowed to continue) would undermine all the principles which lead us to trust the jury system."

Discussion

55.      In our judgment, the defence was not prejudiced by the ex parte hearing having taken place, nor were defence advocates disadvantaged in deciding whether or not to apply for the discharge of the jury following the ex parte hearing and the discharge of juror 125.

56.      The defence was told that juror 125 had been contacted by an outside source; and that the event was sufficiently troubling to justify his removal from the jury. Defence advocates were aware that the removal of juror 125 in those circumstances was not of itself a basis for an application to discharge the rest of the jury.  Much depended on whether or not there had been any inappropriate communication between him and the other jurors.

57.      The Commissioner afforded time and opportunity to all advocates to contribute to the form of the investigation he proposed to undertake.  If the defence had reached the view that the questions and/or answers were inappropriate or insufficient in terms of eliminating any possible risk of contamination or bias, then, no doubt, defence advocates would have applied to discharge the jury.  They did not, nor, so far as we can discern from the submissions made to us, would they have had any sensible basis on which to do so.

58.      We were advised by the Solicitor General that the members of jury listened to the questions which were put to them by the Commissioner with obvious care, and responded unequivocally either by a nodding of the head or simply saying "yes", albeit at an insufficient volume for transcription.  That was not challenged by the defence.  The defence have accepted that the jury appeared to have had a good relationship with the Commissioner throughout the trial and had shown a readiness to ask questions and participate in the process without pressure from him.

59.      It was established that juror 125 had not sought to influence the remaining members of the jury.  There was no risk of contamination and, therefore, no basis on which to consider discharging the jury.  That is, no doubt, why none of the six defendants made any application for a discharge at that time.

60.      In our opinion, the Commissioner's investigation can readily be distinguished from that undertaken by the judge in R-v-Robert Clifford Brown [2001] EWCA 2828, which was relied on by the applicants.  There, two jurors had complained that they had been intimidated by confrontations involving the accused and persons associated with him, during a lunch adjournment.  The judge questioned the jury in court in an attempt to determine possible jury bias and, having done so, he refused a defence application to discharge the jury.  It was held that the general questions posed by the judge in open court were not aptly phrased to determine the matter under investigation, and did not allow members of the jury to reflect or respond privately and individually.  In this case, in our judgment, the questions which the Commissioner put were entirely appropriate for the purpose, and members of the jury were given sufficient opportunity to indicate that they felt unable to continue to sit on the jury and reach a true and impartial and just verdict if that were so.

61.      As to juror 137, the questions asked of him were agreed by the defence, and his answers and demeanour conveyed a comfortable acceptance of his position.  No defence advocate had suggested that he should be removed from the jury, nor was there any proper basis for doing so.  As it transpired, investigation after the trial revealed that the calls had originated from an automated call centre in the UK and, therefore, would have had no relevance in any event.

62.      The jury was given an appropriate direction not to hold the events surrounding juror 125 against the defendants.  It is not credible that they disregarded those words insofar as they knew about and were in any way concerned about the telephone calls which the wife of juror 137 had received.  The Commissioner asked the members of the jury if they had "any doubts" about whether they could continue.  The direction was given and the question was asked on the day of the summing up.  There was no opportunity for their impact to wane.

63.      We reject the applicants' contention that the Commissioner should have counselled jury members to silence.  It would have served no purpose in the circumstances of this case and could have caused unnecessary distress to one or more jurors.

64.      There was no refusal by the Commissioner to hear Advocate Baker on the question of the discharge of the juror.  To the contrary, the Commissioner had explained - to the furthest extent that he considered that he could - the circumstances which had given rise to his decision.  As we have said, the defence could not have challenged that decision.  What would have been immediately obvious to them - and, of course, they had time to reflect on matters when considering the terms of the proposed communication to the jury - was that an event had occurred which had the potential to raise an issue as to the remaining jurors.

65.      Of the six defendants, only Warren desired to revisit the ex parte application of 5th October.  Advocate Baker's purpose in wishing to make submissions, however, as communicated to the Court, was:-

(i)        to discover why the defence were not given notice of the ex parte application;

(ii)       to express concern that the juror was discharged without an opportunity being given to the defence to make submissions or to know what the problem was, and

(iii)      to be told how the Crown came to be involved.

In our judgment, the Commissioner was entitled to refuse to entertain any such representations.  He had ruled on the matter the previous day and the jury had retired.  Defence advocates had been afforded a fair and proper opportunity to make appropriate submissions at that time.  There was nothing in the request for a further hearing which was communicated to the Commissioner on 6th October to suggest that an application to discharge the remaining jurors may have been in contemplation.

66.      Further, we do not accept that the Commissioner's words "as I hope you do," spoken to the jury, should be interpreted as a form of improper pressure on any juror to continue to sit, whilst entertaining doubts about the answers to the Commissioner's questions.  Given the context, we consider the proper construction to be that they were merely words of reassurance and comfort in the situation which had arisen.

67.      For the foregoing reasons, we reject the submissions of Advocate Baker on behalf of all the applicants that there was any material irregularity in this part of the trial.  The Commissioner's refusal to entertain a further application by Advocate Baker to reopen matters already decided, after the jury had retired to consider its verdicts, was not in any way a denial of natural justice.  All these matters had been carefully considered by this very experienced judge who, in the exercise of his discretion, had already ruled in a manner that was fair to each defendant.

Decision on Ground 1

68.      We have to consider whether it is seriously arguable that, as a result of the matters set out in Ground 1, there has been a miscarriage of justice, Warren and Others-v-AG [2008] JCA 135.  We cannot so find.  Consequently, we refuse all six applicants leave to appeal on the first Ground.

Ground 2

"Failure of Prosecution to Provide Proper and Timely Disclosure"

69.      In his Grounds of Appeal, Warren contends that "the crown failed to fulfil its duty to make proper disclosure of unused material".  It is explained on his behalf that the Crown had been ordered to disclose unused material by 24 October, 2008.  On 15th September, 2009, the day before the trial was due to start, the Crown emailed defence advocates in the following terms:-

"Dear all,

Please find attached some further unused material in this case.

Yours sincerely,

Howard Sharp"

70.      The attachment was a document containing what is described in the written contentions as "a series of bare assertions unsupported by any evidence or other material", to the effect that co-defendants may have been involved in substantial drug trafficking in the past.  The disclosure was in the following terms:-

"On l0th April, 2007, WELSH sent £2,500 to Rotterdam Holland by moneygram for collection by Floyd Ricardo DELISLE.

"It is understood that this is the Ricky who was telephoned by WELSH in April 2007.  It is understood that Ricky is a drug dealer.

"On 6th April, 2007, WOODWARD and HUNT flew to Amsterdam on BA8038 to London Gatwick and BA442 to Amsterdam.  They returned on 10th April, 2008, (sic): BA8112 to Gatwick and BA8045 to Jersey.

"It is believed that WELSH imported a large quantity of cannabis at around this time. HUNT has ties to WELSH.

"HUNT has access to or ownership of several boats.  He has uses (sic) these boats to import drugs for several years.  He has been linked to most recent drugs operations in Jersey.  Historically HUNT owned the CHAPARAL Sportsboat JY1397 with Alex De La HAYE in 2004.  In 2005, HUNT owned the PARADOX JY1651 and JY931 SPLASH.  It is not clear if HUNT owned boats in 2006/2007 in his own name but he had access to them.

"It seems that Philip James MCFEAT has links to this group and HUNT in particular.  HUNT and MCFEAT have acquired engines for boats together.  At some point ownership of the PARADOX was transferred to MCFEAT.

"It is understood that LUCAS has been dealing for several years.  It is believed that he dealt drugs at Year 11 at HAUTE VALLEE School in 2002.  Since, there are ground (sic) to suspect that he has been concerned in the importation of cannabis and that he regularly has access to large amounts of the drug up to 100 kilograms."

For convenience, we shall refer to the contents of the attachment to the email of 15th September as "the 15th September disclosures".

71.      When the Royal Court convened on the morning of 16th September, Advocate Baker brought the 15th September disclosures to the attention of the Commissioner.  He expressed a number of concerns.  It was not clear, he said, what the document attached to the email was, pointing out that it was not an index of unused material nor it did it identify unused material.  There should have been full disclosure of this material and everything supporting it, he argued, two years earlier, because it must have been obvious that Warren's defence would involve an assertion that he was not involved with his co-defendants in a conspiracy to import drugs.  If, he continued, there was evidence to suggest that his co-defendants had been importing large quantities of drugs, without Warren's assistance, he must be entitled to know that so as to advise Warren properly as to how to run his defence.  Advocate Baker concluded his submissions by applying for a stay of the Indictment.

72.      For Welsh, Advocate Fitz submitted that without the material lying behind the disclosure document, the defence was prejudiced, and she supported the suggestion that the Indictment should be stayed, as did the advocates for all of the other applicants.

73.      In reply, the Crown Advocate explained that, in light of certain developments which had taken place earlier that week, it had occurred to him that Warren might run a cut throat defence. Until then, he had believed that the issue in the trial would be whether or not the prosecution could prove all the material facts. In these circumstances, he considered it proper to make the 15th September disclosures. He submitted that, having regard to disclosures that had been made previously, there was no prejudice to the defence.

74.      Having heard parties' submissions, the Commissioner retired to consider his ruling.  When he returned, he announced his decision that the trial would proceed, explaining that he did not regard the content or timing of the disclosure as something which compromised or prejudiced the defence.

75.      In his written contentions in support of this Ground of Appeal, Advocate Baker makes the following criticisms of the disclosure:-

(a)       No material was disclosed to support the assertions made in the attachment to the email of 15th September.  That made it impossible for the defence to deal properly or at all with the assertions which were now being made by the prosecution;

(b)       In response to a further order by the Commissioner to disclose relevant material to support the assertions, nothing other than a money order which vouched the payment of £2,500 by moneygram was produced;

(c)       The assertions were relevant to the question whether co-defendants may have been involved in drug trafficking without the involvement of Warren;

(d)       In the absence of disclosure of, or reference to, the provenance of the information contained in the attachment the defence was unable to make properly informed decisions;

(e)       A feature of Warren's defence was that, even if it were proved by the prosecution that others were involved in a conspiracy or conspiracies to import drugs, he was not so involved;

(f)        Without the material supporting the assertions he was prohibited from presenting that defence in its strongest light;

(g)       The missing material was highly relevant to Warren's defence and it is reasonable to suppose that its absence may have affected the outcome of the trial.

76.      No written contentions in support of his application for leave to appeal were filed by Welsh, Woodward or Lucas.  In his written contentions, O'Brien effectively adopts Warren's written contentions in support of this Ground.  As already noticed, Hunt does not advance this Ground of Appeal.

Discussion

77.      While preparing for the hearing on these applications, and having regard to the submissions that were made in the course of the debate which took place in the Royal Court on 16th September, 2009, and to parties' written contentions in support of and in opposition to these applications, we came to the view that it might be appropriate to examine the jurisprudential basis for and the content of the prosecution's duty of disclosure.  For that reason, we invited parties to prepare to address us on these issues.

78.      The first question that arises is, what is the rule of law which gives rise to the Crown's duty to disclose?  In England and Wales, the answer is clear.  In R-v-H and C [2004] 2 AC 134, Lord Bingham of Cornhill, delivering the Opinion of the Judicial Committee of the House Lords, said this:-

"14 Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence.  Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure.  The golden rule is that full disclosure of such material should be made.

"15 This is a field in which domestic practice has developed markedly, although not always consistently, over the last 20 years.  Until December 1981, the prosecution duty was to make available, to the defence, witnesses whom the prosecution did not intend to call, and earlier inconsistent statements of witnesses whom the prosecution were to call: see Archbold, Pleading, Evidence and Practice in Criminal Case, 41st ed (1982), paras 4-178-4-179. Guidelines issued by the Attorney General in December 1981 (Practice Note (Criminal Evidence: Unused Material) [1982] 1 All ER 134) extended the prosecution's duty of disclosure somewhat, but laid down no test other than one of relevance ("has some bearing on the offence(s) charged and the surrounding circumstances of the case") and left the decision on disclosure to the judgment of the prosecution and prosecuting counsel.

"16 In R-v-Ward (Judith) [1993] 1 W.L.R. 619, 674 this limited approach to disclosure was held to be inadequate:

"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case.  This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence.  Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial."

The rule was stated with reference to scientific evidence, because that is what the case concerned, but the authority was understood to be laying down a general test based on relevance: see R-v-Keane [1994] 1 W.L.R. 746, 752. 

"17 The Criminal Procedure and Investigations Act 1996 gave statutory force to the prosecution duty of disclosure, but changed the test.  Primary disclosure must be made under section 3(1)(a) of any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused.  Secondary disclosure under section 7(2))(a) is to be made, following delivery of a defence statement, of previously undisclosed material which might be reasonably expected to assist the accused's defence.  Section 32 of the Criminal Justice Act 2003, yet to take effect, has amended section 3(1)(a) of the 1996 Act so as to require primary disclosure of any previously undisclosed material "which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused".  Whether in its amended or unamended form, section 3 does not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence."

The amendment of section 3(1)(a) of the 1996 Act by section 32 of the 2003 Act took effect from 4th April, 2005 SI 2005/950.

79.      In Scotland, over the last dozen years or so, what has been described as a "cultural revolution as to the disclosure by the Crown to the defence of material in its possession" has taken place.  Until the decision of the Scottish appeal court in McLeod-v-HM Advocate (No 2) (1998) JC 67, the only material which the Crown routinely provided to the defence was the list of witnesses and productions annexed to the indictment.  "The duty of disclosure was defined as a duty at any time to disclose to the defence information in their possession which would tend to exculpate the accused ... ... But, while it was open to the defence to apply for an order for the recovery of documents that the Crown were under a duty to disclose, it had to aver a sufficient basis to justify the making of such an order by the court and show that it would be likely to be of material assistance to the proper preparation or presentation of the accused's defence ... ...  In order to meet these requirements the defence had to know of the existence of the material that it was asking for."  HM Advocate-v-McDonald [2008] UKPC 46, 2008 SCCR 954, per Lord Hope of Craighead, at paragraph 20.  By 2008, the prosecution's duty of disclosure in Scotland could be formulated in this way:-

"Put shortly, the Crown must disclose any statement or other material of which it is aware and which either materially weakens the Crown case or materially strengthens the defence case (disclosable material)"

(HM Advocate-v-McDonald, paragraph 50, per Lord Rodger of Earlsferry).

80.      Today, therefore, the same general duty of disclosure which lies on the prosecution authorities in England and Wales is incumbent on the Crown in Scotland.  It is relevant to the matters under discussion in this Judgment to understand by what route the position in Scotland was reached.

81.      Section 57(2) of the Scotland Act 1998 provides that a member of the Scottish Executive, which includes the Lord Advocate, has no power to do any act so far as it is incompatible with any of the rights and freedoms guaranteed by the European Convention on Human Rights.  As head of the prosecution service in Scotland, therefore, the Lord Advocate has no power to bring and maintain a prosecution in a way which is incompatible with Article 6 of the convention.  In a case where the Lord Advocate brings proceedings and seeks a conviction without having disclosed disclosable material, her acts are regarded as incompatible with the accused's right to a fair trial: Sinclair-v-HM Advocate 2005 1 SC (PC) 28. 

82.      In Le Pavoux-v-AG [2003] JCA 127, this Court identified the source of the duty of disclosure in Jersey as the requirement that prosecuting counsel acts as a "minister of justice".  At that time, however, the Human Rights (Jersey) Law 2000 ("HRJL") was not yet part of the law of this Island.  It came into force on 10th December, 2006.  Article 7(1) is in these terms:-

"It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

83.      "Public authority" is defined to include a court or tribunal and any person certain of whose functions are functions of a public nature.  As the Solicitor General acknowledged in the hearing before us, the Attorney General and those prosecuting on his behalf fall within that definition.  In essence, and insofar as is relevant to this case, Article 6(1) of the Convention, which is set out in Schedule 1 to the HRJL, provides that, in the determination of any criminal charge against him, everyone is entitled to a fair hearing. Article 6(2)(b) provides that everyone charged with a criminal offence has the right to have adequate time and facilities for the preparation of his defence.

84.      The requirements of Article 6(1) in respect of disclosure were identified by the European Court of Human Rights in Edwards-v UK (1992) 15 EHRR 417, at paragraph 36, in these terms:-

"The Court considers that it is a requirement of fairness under paragraph 1 of Article 6 (art. 6-1), indeed one which is recognised under English law, that the prosecution authorities disclose to the defence all material evidence for or against the accused."

85.      In our judgment, therefore, it is no longer appropriate to regard the prosecution's duty of disclosure as flowing solely from the requirement that prosecuting counsel acts as a minister of justice.  It flows principally from the requirement of fairness under Article 6(1) of the Convention.

86.      We turn now to consider the content of the duty.

87.      We note that, in his formulation of the duty of disclosure, which we have quoted in paragraph 79 above, Lord Rodger made it clear that he was putting the matter shortly.  In Allison-v-HM Advocate [2010] UKSC 6; 2010 SLT 261, Lord Hope observed that the prosecution's duty had been formulated in a number of different ways in the authorities.  The examples which his Lordship gave included the formula as worded by Lord Bingham in R-v-C and H, and Lord Hope continued:-

"These formulations should however be regarded as expressing what has been described as the golden rule in shorthand.  After all, they are describing a decision about disclosure which must normally be taken before the trial.  It is a decision which will be based on an assumption as to what may happen in the future.  So the question the Crown must ask itself is what the possible effect would be likely to be if the material were to be disclosed.  As I said in R-v-Brown (Winston) [1998] AC 367, 374, it would be contrary to the principle of fairness for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence.  [Original emphasis] Lord Collins, referring to what I said in that case, also used the word "might" in Murtagh, [2009] UKPC 36, 2009 SLT 1060] para 75.  That is the way Lord Rodger has expressed the position that the Crown has adopted in this case in para 14, above, and I respectfully agree with it."

88.      In our opinion, in the performance of its obligation under the HRJL to act in a way which is compatible with Article 6, the prosecution must disclose to the accused all material of which it is aware which might undermine the Crown case or which might assist his defence.

89.      In Le Pavoux, this Court expressed the view that the prosecution would perform its duty of disclosure by complying with the Farquharson guidelines for prosecuting barristers as laid down in England and Wales, and with the additional guidance given by the Attorney General for England and Wales from time to time.  In our view, that approach is no longer appropriate in Jersey.  The latest such guidance in England and Wales, the "Attorney General's Guidelines on Disclosure", was published in April 2005.  The first three paragraphs of its foreword are in these terms:-

"Disclosure is one of the most important issues in the criminal justice system and the application of proper and fair disclosure is a vital component of a fair criminal justice system.  The "golden rule" is that fairness requires full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence.

"This amounts to no more and no less than a proper application of the Criminal Procedure and Investigations Act 1996 (CPIA) recently amended by the Criminal Justice Act 2003.  The amendments in the Criminal Justice Act 2003 abolished the concept of "primary" and "secondary" disclosure, and introduced an amalgamated test for disclosure of material that "might reasonably be considered capable of undermining the prosecution case or assisting the case for accused".  It also introduced a new Code of Practice.  In the light of these, other new provisions and case law I conducted a review of the Attorney General's Guidelines issued in November 2000.

"Concerns had previously been expressed about the operation of the then existing provisions by judges, prosecutors, and defence practitioners.  It seems to me that we must all make a concerted effort to comply with the CPIA disclosure regime robustly in a consistent way in order to regain the trust and confidence of all those involved in the criminal justice system.  The House of Lords in R-v-H & C made it clear that so long as the current disclosure system was operated with scrupulous attention, in accordance with the law and with proper regard to the interests of the defendant, it was entirely compatible with Article 6 of the European Convention on Human Rights."

90.      Two observations fall to be made about the 2005 guidelines.  The first is that they are intended to aid compliance with CPIA and its related Code of Practice, which regulate disclosure in England and Wales.  CPIA has no counterpart in Jersey.  Second, to the extent that the guidelines may be helpful in considering the practical implementation of the golden rule, they must be read with the understanding that there are significant procedural differences between Jersey and England and Wales, which have a bearing on the performance of the Crown's duty of disclosure in these jurisdictions.  Perhaps the most important of these differences is that, in Jersey, there is no requirement on the accused to disclose his or her defence in advance of trial.  Section 5 of CPIA, by contrast, requires the accused to give a defence statement to the court, the prosecutor and, where ordered by the court, any co-accused.  The statement must be given during a prescribed period before trial.  (Section 12) Section 6A prescribes the content of the defence statement, requiring the accused, for example, to set out the nature of the defence, including any particular defence on which he intends to rely, the matters of fact on which he takes issue with the prosecution and the particulars of the matters of fact on which he intends to rely for the purposes of his defence.

91.      In a system in which the defence is required to disclose its case at a preliminary stage, the duty on the prosecution to disclose material if it "might reasonably be considered capable ... ... of assisting the case for the accused", as it is put in CPIA, is intelligible and workable in practice.  If the prosecutor knows what the defence case is, he ought to be able to identify such material.  In Jersey, where there is no obligation on the defence to disclose its case in advance of trial, difficulties may arise, as they appear to have arisen in this case, if the prosecutor focuses on what might assist the defence case, rather than on what might assist the defence.  For example, the reason given by the Crown Advocate on 16th September, 2009 for not having made earlier disclosure of the 15th September material was, as he put it, "I have no idea what the Defences are. I'm guessing. I guessed that Advocate Baker's case was changing. He didn't tell me, I guessed."

92.      In Scotland, as in Jersey, an accused person is not required to disclose his or her defence prior to trial.  Problems which that might create for a prosecutor in determining whether particular material should be disclosed to an accused are avoided by the way in which his duty is formulated - he or she must disclose material that might assist the accused's defence.  As Lord Hope says, in the passage quoted in paragraph 87 above, the various formulations "are describing a decision about disclosure which must normally be taken before the trial.  It is a decision which will be based on an assumption as to what may happen in the future.  So the question the Crown must ask itself is what the possible effect would be likely to be if the material were to be disclosed." (Emphasis supplied)

93.      Since Le Pavoux was decided, Her Majesty's Attorney General in Jersey has introduced his own "Attorney General's Guidelines for Prosecution Case Management and Disclosure", which came into force on 1st August, 2006.  Given the procedural differences that exist between England and Wales and Jersey on the matter of disclosure of the defence case, it is unsurprising that the Jersey guidelines require disclosure of material which helps or may help "the defence" rather than "the defence case".

94.      In Durkin-v-AG [2005] JRL 12, this Court adopted as applicable in Jersey the following dictum of Jowitt J in R-v-Melvin and Dingle unreported 20th December, 1993, which was approved in R-v-Keane (1994) 99 Cr. App. R.1:-

"We would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

These words may be regarded as in line with, but, perhaps, narrower than the definition of disclosable material set out in paragraph 88 of this Judgment.  In our view, to the extent that there is any difference in practice, material as defined in paragraph 88 should be disclosed.

95.      Turning to the facts of this case, in our opinion each accused had two obvious possible lines of defence.  The first was that there was no conspiracy to import cannabis resin, and the second was that, if there was such a conspiracy, he took no part in it.  The prosecutor's duty was to disclose material that might assist the defence if it chose to pursue either or both of these lines.  As is noted in paragraph 75 above, in his written contentions, Advocate Baker submits that the matters referred to in the 15th September disclosures "were relevant to the question whether co-defendants may have been involved in drug trafficking without the involvement of (Warren)".  As he put it in the hearing before us, the 15th September disclosures might suggest that "rather than being the kingpin of this investigation, rather than being the controlling mind of the conspiracy as the Crown allege, there is evidence to suggest that others were capable of running such a conspiracy without him".

96.      In this Court, the Solicitor General accepted that the 15th September disclosures should have been made earlier, and offered his apologies.  We deal with the consequences of the timing of the disclosures later in this Judgment.  There was some discussion during the hearing about the form of the disclosures, and questions were asked about whether other disclosable material lay behind them.  The terms of the second paragraph of the 15th September disclosures, for example - "It is understood that this is the Ricky who was telephoned by WELSH in April 2007.  It is understood that Ricky is a drug dealer" - give no clue as to the factual basis on which these things were understood nor to the identity of those who had such understanding.  The Solicitor General explained his position as follows:-

"I am happy to answer it in this way, in the sense that the prosecution sometimes come into possession of evidence and sometimes come into possession of information, and sometimes the prosecution can only disclose information.  That is what has happened here."

97.      There are two classes of material which the prosecution must not disclose.  The first is material which the Court determines that it is not in the public interest to be disclosed and orders accordingly.  The second is material disclosure of which is prohibited by statute.  The nature and extent of the statutory exception from disclosure will depend on the terms of the relevant Law.  An example of a statutory prohibition on disclosure is to be found in the Regulation of Investigatory Powers (Jersey) Law 2005.  Article 21 is in these terms:-

"(1) Subject to Article 22, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner) -

(a) discloses, in circumstances from which its origin in anything falling within paragraph (2) may be inferred, any of the contents of an intercepted communication or any related communications data;

or

(b) tends (apart from any such disclosure) to suggest that anything falling within paragraph (2) has or may have occurred or be going to occur."

It is unnecessary to rehearse the terms of paragraph (2).  It is sufficient to say that it includes, for example, the issue of an interception warrant or of a warrant under the Interception of Communications (Jersey) Law 1993.  The Article 22 exceptions relate to proceedings of certain specified types. 

98.      There may be circumstances, therefore, in which the prosecution has material which might assist the defence, but is prohibited from disclosing it.  The decision whether or not the material is such that disclosure is prohibited is to be taken by the prosecutor.  The Court will not be involved in the making of that decision, and neither the Court nor the defence will know of the existence of the material.  Further, the prosecution is prohibited from making any assertion which tends to suggest that any of the paragraph (2) events specified in the Law has or may have occurred.  That calls for a degree of circumspection.  In such circumstances, it is the Crown's duty to have regard to the risk of unfairness to the accused which the statutory prohibition on disclosure may create, and to consider whether proceedings should be discontinued. 

99.      In this case, the Commissioner was assured by the Crown Advocate that, beyond the information contained in the 15th September disclosures, and the moneygram documentation, the Crown had no further disclosable material.  This Court was given the same assurance.  We proceed, therefore, on that basis.

100.   The question which falls to be determined, therefore, is whether, given the timing of the disclosure, the applicants, or any of them, were deprived of a fair trial.  In McInnes-v-HM Advocate 2010 SLT 266, in a passage with which Lords Walker and Kerr expressly agreed, Lord Hope held that, where material has been withheld from the defence, two questions arise to which a test must be applied, as follows:-

"... ... The first question is whether the material which has been withheld from the defence was material which ought to have been disclosed.  The test here is whether the material might have materially weakened the Crown case or materially strengthened the case for the defence: HM Advocate-v-Murtagh, para 11.  The Lord Advocate's failure to disclose material that satisfies this test is incompatible with the accused's article 6 Convention rights. ... ...

"20. The second question is directed to the consequences of the violation.  This is the question that arises at the stage of an appeal when consideration is given to the appropriate remedy: see Spiers-v-Ruddy [2009] SC (PC) 1.  In that case it was the reasonable time guarantee that was in issue, but I think that the ratio of that case applies generally.  As Lord Bingham of Cornhill put it in para 17, the Lord Advocate does not act incompatibly with a person's Convention right by continuing to prosecute after the breach has occurred.  A trial is not to be taken to have been unfair just because of the non-disclosure.  The significance and consequences of the non-disclosure must be assessed.  The question at the stage of an appeal is whether, given that there was a failure to disclose and having regard to what actually happened at the trial, the trial was nevertheless fair and, as Lady Cosgrove said in Kelly-v-HM Advocate, para 35, as a consequence there was no miscarriage of justice: see section 106(3) of the Criminal Procedure (Scotland) Act 1995.  The test that should be applied is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict."

Later in this Judgment, we refer to test to be applied to the second question as "the second McInnes test".

101.   As we have said, the Solicitor General accepted that the 15th September disclosures ought to have been made earlier.  Implicit in that was an acceptance that they contained material which ought to have been disclosed.  For that reason, we grant Warren, Welsh, O'Brien and Lucas leave to appeal in respect of Ground 2.  We do not do so in the case of Woodward because, during the course of the hearing before this Court, Advocate Gilbert advised us that she was unable to contend on behalf of Woodward that there is a real possibility that, had the 15^th September disclosures been made earlier, the jury might have reached a different verdict in his case.  In light of that concession, we treat Woodward's application for leave to appeal against conviction on Ground 2 as abandoned.  What we must now determine, therefore, is whether there is a real possibility that the jury would have arrived at a different verdict in respect of Warren, Welsh, O'Brien and Lucas, had the material been disclosed timeously.

102.   As can be seen from paragraph 75 of this Judgment, most of Advocate Baker's complaints about the 15th September disclosures are to the effect that no underlying material was disclosed.  Given the Solicitor General's assurance, which we accept, that there was and is no more disclosable material, these complaints fall away.  What remain are to the effect that the disclosures were relevant to the question whether co-defendants may have been involved in drug trafficking independently of Warren. 

The 15th September Disclosures in Context

103.   It is important at this stage to consider what had already been disclosed to the defence.  The prosecution's case statement was served in early December 2007. It contained the following:-

"April to June 2007

Throughout April and June, Welsh made repeated calls to a Dutch mobile telephone listed as "Ricky 3" in his Jersey mobile.  A contacts book seized on Welsh's arrest suggests Ricky is Ricky De Lisle from Rotterdam.  A phone bill recovered on Welsh's arrest shows repeated calls to Ricky throughout April 2007.  The Crown say that Ricky was Welsh's Dutch contact before Warren introduced him to Liazid."

104.   We were informed by the Crown that, further, in 2007 and 2008, the prosecution served on the applicants admissible evidence, which included the following:-

(i)        Welsh's previous convictions for commercial drug trafficking in Jersey;

(ii)       Evidence that Welsh had a criminal contact in Rotterdam ("Ricky") with whom he was in very frequent telephone contact until early June 2007 when the Dutch telephone ceased answering calls;

(iii)      Evidence of persistent and frequent contact between Welsh and Hunt over the same period;

(iv)      Hunt's conviction in April 2007 for possession of cannabis and other drugs;

(v)       Evidence of telephone numbers associated with Hunt at the time that were stored in Welsh's mobile telephone as Paulboat and Paul2boat;

(vi)      The police interview of Paul Hunt in which he admitted owning a boat; and

(vii)     The statement of a prosecution witness who later told the Court during trial that Hunt had piloted his boat back from France to Jersey.

105.   The Crown argue that, if Warren, or any other co-defendant, had wanted to run a defence that suggested that others had established drug links with Holland, and did not, therefore, require his assistance, he could have adduced the evidence served on him in 2007 and 2008 together with the moneygram sent by Welsh to his Rotterdam criminal contact, which was disclosed in September 2009.  No defendant chose to do so.  Consequently, runs the argument, earlier disclosure of the 15th September material would have made no difference to the way in which the defence case was advanced and, therefore, no appellant advancing this Ground of Appeal was prejudiced by late disclosure.  

106.   Further, the Crown submit, even if Warren had led evidence suggesting that co-defendants were well able to run a drugs importation operation without him, there is no real possibility that the jury would have arrived at a different verdict in respect of him.  On the contrary, they argue, such a line would have undermined his defence. To the extent that other defendants adopted the contention that Warren had been fitted up, and suggested that they had been "caught up" in that their defence, too would have been undermined. 

107.   The prosecution case was based largely on evidence about the defendants' movements during the period of the conspiracy, a series of meetings involving the defendants in various combinations, the use of telephone kiosks to make calls when mobile phones were available to them, the frequency, timing and pattern of telephone calls, the terms of various conversations, and a visit by Welsh to Holland to meet Warren's associate, Liazid.  The Crown's case was that the evidence pointed to illegal activity involving the importation of drugs to Jersey.

108.   So far as Warren was concerned, the Crown placed particular reliance on the circumstances of, and words spoken by him during two conversations which were tape recorded.  The circumstances of the first were that, on 14th July, Warren flew to Jersey, and was collected from the airport by Welsh.  They went to a telephone kiosk in St Brelade's Bay where, according to the evidence, Warren telephoned Liazid in Holland.  The pair then toured the Island in Welsh's car, during the course of which Warren phoned another Dutch contact.  Eventually, Warren and Welsh drove to People's Park, where Welsh met Hunt and Woodward.  A little later, Warren and Welsh drove to St Catherine's Breakwater.  There was evidence that it was to be used as a drop off point for drugs.  During the course of that journey, Warren talked about someone whom he had met and asked Welsh, "Yeah, and what did he say after he had met me?"  According to the Crown's transcript there follows this exchange:-

"Welsh: He said tell your mate that he needs someone with kellog with that                     because (laughter)

"Warren: Because what?

"Welsh: It's all shabite here, none of them can get a decent ...

"Warren: Reefer."

A little later:-

"Warren: What do they give them for selling hash here?

"Welsh: What?

"Warren: What's the difference in sentencing?

"Welsh: Er well

"Warren: What did they give that lad charged with inaudible kilos?

"Welsh: Thirteen years

"Warren: For that like yeah?"

As we have said, the transcripts were not agreed, but the tapes were played to the members of the jury, who were directed to decide for themselves what was being said.  The Crown led evidence from a SOCA officer, Tony Saggers, to the effect that a reefer is a cannabis cigarette, and that hash is cannabis.

109.   There was evidence which the jury was entitled to accept that, on 20th July, at 10:49 p.m. Warren called Liazid from a telephone kiosk.  Warren's end of the conversation was recorded and according to the Crown, he could be heard to say "even if we get twenty or thirty pieces ourselves I will be happy."  Mr Saggers testified that, in the context of drugs trafficking "pieces" is drugs slang for kilograms.  

110.   On the prosecution's case, the context of the call was important.  The plan, the Crown said, was to import a total of 180 kilograms.  As noted above, 60 kilograms was to go to Welsh, 60 kilograms to Woodward, Hunt and Lucas, and 60 kilograms to Warren and Liazid.  According to Mr Saggers, a kilogram of cannabis could be acquired in Holland for £200 if it was a bulk buy and there was an established relationship between the purchaser and seller.  Liazid had told Welsh on 19th July that he expected "the boys", who, according the Crown, were Woodward, Hunt and Lucas, to bring 18,000 Euros to Amsterdam to pay for their share.  The sterling equivalent was £12,000.  At £200 a kilogram, that would buy up to 60 kilograms of cannabis.

111.   Welsh informed Lucas by telephone on 21st July that he had paid for his "half".  That, said the prosecution, that Welsh was acquiring the same amount as Woodward, Hunt and Lucas, i.e. 60 kilograms.  Further, Welsh told O'Brien on 15th July that he was going to import 60 kilograms.  It was the Crown's case that Liazid and Warren had their own slice on top.  On 19th July, while Welsh and Liazid were together in Holland, Welsh spoke to Liazid about "putting yours on".  Welsh went on to tell Liazid that it might take four weeks to sell 50-60 kilograms.  This, said the Crown, was a reference to the amount that Liazid was putting on top of the 120 kilograms.

112.   The Crown invited the jury to understand that, during the 20th July call, Warren was saying that he expected to share 40-60 kilograms with Liazid. That, contended the prosecution, was consistent with what Welsh had said to Liazid during the previous day, about selling 50-60 kilograms in the context of "putting yours on." Later, during the 20th July conversation, Warren is recorded as saying "Then we'll see it as a little starter, you know".

113.   As we have noted, the central theme of Warren's defence was his assertion that he was fitted up.  In a written statement of the defence case, dated 2nd October 2009, served by Advocate Baker, he argued that at no stage in the taped conversations could Warren be heard discussing the importation of cannabis resin to Jersey.  He continued:-

"4.       The main elements of the prosecution case are observations, telephone communications and the product of the audio surveillance.

"5.       So far as observations are concerned there is no challenge to his movements.  His movements were nothing to do with conspiring to import drugs into Jersey.  His movements are consistent with someone seeking to reduce the risk of the police snooping on him.  There are potentially many reasons for a man with Warren's criminal history to act in such a way which do not include him conspiring to import these drugs into Jersey.  By way of example a man of considerable wealth who did not want the police to discover his wealth may act in such a way. ... ...

"6.       So far as telephone communications were concerned the really significant element is what was heard being said by him.  The same is true of the product of audio surveillance.

"7.       The main planks of his defence are:

(i) his visits to and movements in Jersey should be seen in the true context of him having a girlfriend in Jersey, mixing with persons he knew such as Welsh;

(ii) the content of his telephone conversations and the audio recordings need to be heard in the context of a man who had been in prison for many years.  It is accepted that he speaks in slang and his conversations include references to crime;

(iii) his conversations with Liazid need to be considered in context.  The other side of the conversation is not heard.  The context of the conversation includes whether Liazid was a police agent who may have influenced and deliberately steered or influenced the terms of the conversation.  Alternative potential scenarios have been put to the jury as to the possible topics of the conversation namely that cash is being discussed or firearms.  Knowledge of Liazid's true status as a police agent would enable the jury to assess those potential other alternatives.  Those discussions are instead being represented as conversations about drugs.  Full knowledge of the circumstances in which the conversations take place has been denied the jury by the failure to extradite or even look for Liazid despite his obvious availability.

(iv) Full knowledge of the circumstances of Warren's previous dealings with Liazid have been denied to the jury because of the authorities' desperation to fit up Warren.  The conversations can not thus be considered in their full and proper context."

The remainder of the statement was concerned with the assertion that the authorities would stop at nothing to fit up Warren and that they had denied the jury the full context of events so as to enable them to reach a true verdict.

114.   Advocate Baker had cross-examined Mr Saggers, and put to him that "pieces" can mean guns.  Mr Saggers agreed, but explained that the context was relevant.  In his closing submissions to the jury, Advocate Baker suggested that, in Warren's conversation with Liazid, "pieces" may have been a reference to guns, or that it might have been a reference to money, and that what Warren was doing was seeking the recovery of cash held by associates while he was in prison.

The Second McInnes Test - Warren, Welsh, Woodward and Hunt

115.   In order to determine whether or not the trial of any of these appellants was unfair, the question which we must ask ourselves is whether taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict if the 15th September disclosures had been made earlier. 

116.   In our view, earlier disclosure would have made no difference to the way in which the appellants ran their defence.  The 15th September material was not evidence.  As the Solicitor General said it amounted to no more than information and there was no further disclosable material, other than the moneygram.  The disclosures might be regarded as providing a lead, pointing the way to further investigation, and they might have given ammunition for cross-examination.  The defence, however, did not apply for an adjournment to allow further investigations to be made.  In the event, none of the defendants gave evidence, so there was no opportunity for cross-examination of any of them.  We agree with the Crown that the 2007 and 2008 disclosures had provided the appellants with material which would have enabled any of them to run a defence to the effect that his co-defendants, or some of them, were capable of running a drugs smuggling operation without him.  No appellant sought to do so.  In our opinion, therefore, even if the 15th September disclosures had been made earlier the material would not have been deployed by any of the Ground 2 appellants.  Timeous disclosure would not, therefore, have had any effect on the outcome of the trial.

The Second McInnes Test - Warren

117.   As we have recorded at paragraph 95, Advocate Baker submitted that if earlier disclosure had been made, Warren would have been in a position to establish, or at least suggest that rather than being the kingpin of this investigation, rather than being the controlling mind of the conspiracy as the Crown allege, there is evidence to suggest that others (the co-defendants) were capable of running such a conspiracy without him".  In our view, if the jury had been made aware that, on 10th April, Welsh had sent £2,500 to Delisle in Holland; that Delisle was a drugs dealer; that Welsh imported a large quantity of drugs around that time; that Lucas had been dealing drugs for several years and that Hunt had ties to Welsh and access to boats, the jury would have been more rather than less likely to conclude that Warren's activities during June and July 2007 were related to drugs trafficking.  For the foregoing reasons, in our opinion the second McInnes test is not met in the case of Warren. 

The Second McInnes Test - Welsh

118.   The information contained in the 15th September disclosures which concerned Welsh was damaging to him and cannot properly be regarded as disclosure which the Crown had a duty to make to him. If the remainder of the 15th September disclosures had been communicated to Welsh sooner, and even if they had been deployed in his defence, we are unable to see on what basis it could properly be said that there is a real possibility that the verdict in the case of Welsh would have been different.  The evidence against him was, among other things, that he had direct contact with Liazid by telephone and in person, and discussed the details of the importation with him.  There was no attempt to argue before us that there is a real possibility that, if the jury had known of the activities of Woodward, Hunt, Lucas and McPheat as narrated in the 15th September disclosures, its verdict in respect of Welsh would have been different.

The Second McInnes Test - O'Brien

119.   Although adopting Warren's second Ground of Appeal, the focus of O'Brien's attention, in his written contentions and in the hearing before us, was his separate Ground of Appeal which is recorded in paragraph 3(iii) above, and which, for ease of reference, we repeat:-

"That the Commissioner wrongly refused O'Brien's application to reverse his earlier ruling, that O'Brien's previous conviction was admissible in evidence, on the ground that the late disclosure of material had changed the position, and that, as a result, there was a miscarriage of justice."

120.   On 2nd April, 2009, the prosecution applied to be permitted to adduce in evidence the fact that O'Brien had previously imported cannabis into Jersey from the Normandy coast in 2002 by using his speedboat for the purpose, and also the fact that he was convicted of an offence for so doing.  On 3rd April, 2009, the Commissioner ruled that the previous conviction was admissible as similar fact evidence.  In the course of his Judgment, he said this:-

"I take the view that the number of men in Jersey who would be willing and able to carry out such an unlawful and potentially hazardous operation, as it is alleged was required here, and who possessed a boat suitable for doing so must be few.  The evidence which it is proposed to adduce is logically probative that the defendant, James O'Brien, was one of them."

"This evidence, in my view is relevant to the question of identification and whether O'Brien was a likely candidate for selection as a member of the conspiracy to carry out the role of importing drugs into Jersey by sea or boat courier, as the Crown put it.  It is also evidence which goes to explain conversations which it is alleged O'Brien had with Welsh and the meaning of the word "it" as being the subject matter of the enterprise, which was drugs.  In my opinion the evidence is also relevant and admissible as tending to show that the defendant has been otherwise involved in drugs, so as to prove knowledge of the purpose of the conspiracy and to rebut a defence of innocent involvement."

AG-v-Warren & Others [2009] JRC 060E

121.   The Commissioner granted leave to appeal against that ruling, and, on 1st July, 2009, the appeal ("the first appeal") was dismissed by this Court.  Advocate Bell had submitted on behalf of O'Brien that there was no unique signature feature in the nature of Mr O'Brien's offending and that the method used by Mr. O'Brien to import drugs into Jersey was commonplace, since most importations of drugs into Jersey were effected by private boat.  Furthermore, Advocate Bell submitted, there was no evidence of system, there being only one occasion when Mr. O'Brien could be shown to have been involved in the importation of drugs by sea and that importation involved, moreover, different points of embarkation and delivery.  The Court held as follows:-

"... ... the issue in this trial is the nature and purpose of the contact between Messrs. O'Brien and Welsh.  In the circumstances we consider that evidence of Mr. O'Brien's role in a previous importation is highly relevant to that issue.  There is no requirement for striking similarity or system to be shown where the issue is not one of identification but rather one of purpose.  The jury are entitled to consider the likelihood that during the currency of the alleged conspiracy Mr Welsh should have an innocent contact with a man with the skills necessary to carry forward the importation of drugs by private boat or whether that contact is only explicable on the basis that the contact was because Mr. O'Brien had been recruited to join the conspiracy by Mr. Welsh because of his established drug smuggling skills."

Warren & Others-v-AG [2009] JCA 135.

It is to be noticed that this Court parted company from the Commissioner on the question whether the evidence was relevant to the issue of identification.

122.   On 17th September, following receipt of the 15th September disclosures, and a copy of the sentencing Judgment in AG-v-De La Haye [2009] JRC 061, which was received on 17th September, an application was made on behalf of O'Brien to the Commissioner to reverse his ruling of 3rd April, on the ground that the 15th September disclosures and the disclosure of the De La Haye Judgment had changed the position.  (The De La Haye Judgment demonstrated the existence of another boatman on the Island who had imported illegal drugs.  There was some controversy during the hearing before us about whether it was in the public domain before the hearing of the first appeal.  In light of our reasons which follow, it is not necessary for us to determine that controversy.)  The Commissioner refused the application.  In doing so, he gave the following reasons:-

"The basis of Advocate Bell's application is, first of all, that the basis of my ruling was of similar fact evidence but that, now there has been a change of circumstances, that must weaken the Crown's case in so far as it was based on similar fact evidence and the issue of identification.  But, as now appears clear and was certainly most clearly analysed by the Court of Appeal, the true purpose of this evidence is purpose; what was the purpose of O'Brien's undoubted contacts and conversations with his co-Defendant Welsh?  What was it all about?  It doesn't seem to me that the new information impinges on that issue at all.  There may well have been other candidates whom Welsh could have approached.  Maybe he did, maybe he didn't.  What the issue for the Jury to determine in this case is what was the purpose/object of Welsh's conversations with O'Brien, and I don't see that the new information affects that or weakens the Crown's case.  ... ... I am not prepared to reverse my ruling."

123.   In support of O'Brien's application for leave to appeal against conviction on this Ground, Advocate Bell submitted that all such unused material should have been disclosed to the defence before the prosecution made their original application to adduce O'Brien's previous conviction as similar fact evidence.  The turn of events, he contended, begged the question as to why the Court and the defence were effectively told by the prosecution during the hearing on 2nd April that it would be an "affront to common sense" to exclude O'Brien's previous conviction, when there was undisclosed relevant information relating to persons other than O'Brien and their use of boats to import drugs.  The prosecution, he argued, had withheld information which could have been used by O'Brien to challenge the prosecution's original application to admit O'Brien's previous conviction as similar fact evidence and the subsequent appeal in that regard.  The balance of any probative force against the degree of prejudice should have been found to tip against the inclusion of O'Brien's previous conviction in evidence at trial.  It was unduly prejudicial to allow O'Brien's previous conviction to remain in and the consequences of its admission were or may have been so unfair as to affect the verdict ultimately given by the jury.

124.   In our judgment, there is no merit in this Ground of Appeal.  It cannot be said that the late disclosure of the 15th September material rendered O'Brien's trial unfair.  The fairness or otherwise of a trial falls to be determined on a consideration of the process taken as a whole.  Although not in a position to deploy the 15th September disclosures at the first hearing before the Commissioner, or before this Court in the first appeal, O'Brien applied for the reversal of the Commissioner's ruling, and was given a full hearing on that application, with reference to the 15th September disclosures.  Further, the admission into evidence of O'Brien's previous conviction was upheld by this Court in the first appeal on the basis that it was relevant to the determination of an issue in the trial - i.e. the nature and purpose of the contact between Messrs. O'Brien and Welsh.  The evidence of O'Brien's role in a previous importation was held to be highly relevant to that issue.  By contrast, evidence that others had access to boats and may have used them for the importation of drugs is of no relevance to that issue.

125.   Other than by reference to the admission of evidence about his previous conviction, O'Brien advanced no submission in support of the proposition that he did not receive a fair trial.

The Second McInnes Test - Lucas

126.   In his Notice of Application for leave to appeal, Lucas says this about the 15^th September disclosures:-

"Without the supporting material the applicant was prohibited from making proper tactical decisions as to how to conduct his defence.  The bare assertions by the Crown were wholly useless for the purposes of cross examination or establishing facts at trial.  The applicant was thus prohibited from making fully informed tactical decisions as to how to run his defence."

127.   In the hearing before us Advocate Preston submitted that, had the 15th September disclosures been made sooner, and had the defence had the opportunity to examine, investigate and probe further, they may have discovered what was behind them.  He conceded that there seemed to be some doubt as to what that might have revealed.  Such examination, investigation and probing may in turn, he said, have enabled the advocates to make different decisions as to the defence that was run.  So far as his client, in particular was concerned, Advocate Preston's complaint was that, had he been able to attack the assertions made about Lucas at an earlier stage, he might have been able to run his defence differently.  He might have been able to take different decisions in relation to whether or not Lucas gave evidence.  He did not suggest that Lucas had been disadvantaged by late presentation of any of the material in the 15th September disclosures which referred to co-defendants. 

128.   In our view, the contention that, given more time, Lucas' representatives may have been able to attack the assertions made about Lucas is misguided.  So far as Lucas was concerned, the assertions about him did not constitute disclosure.  They were served because they might undermine the Crown case against others, particularly Warren, and might help their defence.  In our opinion, the possibility that things might have been done differently by Lucas' representatives if material that was unhelpful to him had been disclosed earlier does not address, let alone meet the second McInnes test. 

Decision on Ground 2

129.   Having regard to the whole circumstances, we are not persuaded that the timing of the 15th September disclosures resulted in an unfair trial in respect of any of the appellants.  We accordingly hold that, in no case, was there a miscarriage of justice.  For the reasons given in paragraphs 116 and 117, Warren's appeal on Ground 2 is dismissed.  Welsh's appeal on this Ground is dismissed, for the reasons given in paragraphs 116 and 118.  O'Brien's appeal on Ground 2 is dismissed for the reasons given in paragraphs 116, 124 and 125 and Lucas' appeal on Ground 2 is dismissed for the reason given in paragraphs 116 and 128.

Ground 3

"The Commissioner's refusal to allow the defence to call the witnesses Pashley, Beghin and Jowitt."

130.   At the conclusion of the prosecution case, Advocate Baker filed an application to call a number of witnesses - Detective Sergeant Louis Beghin and Detective Inspector Gary Pashley, of the Jersey Police, Crown Advocate Matthew Jowitt, and others.  The reason for the application was given as follows:-

"... ... In Jersey there is no express filter in place before a witness can be notified to attend under Article 58 of the Loi (1864) Reglant la Procedure Criminelle ... ..  However, it is accepted by the Defence on behalf of the present accused that the Judge nevertheless has the power, on the attendance of witnesses, to regulate the liberty of an accused person to cause all and any witnesses of his choosing to be heard by the Court.  It follows that if a person were to be summonsed by the Viscount and so appeared before the Court as he was bound to do, the Judge could still refuse to hear him if his proposed evidence was judged to be irrelevant.

"6. On that analysis, it seems that the most sensible course is for the Defence to give advance notice, as it now does, of its intention to cause certain witnesses to be summonsed on behalf of the accused Warren.  Should the Court find that it would not, in the event, hear those witnesses, then naturally the Defence would not proceed to cause summonses to be issued to those witnesses".

131.   Advocate Baker reiterated that Warren's defence was that he had been fitted up or set up.  It was claimed that "deep undercover informants will have been used against him.  It is suspected that Liazid is such an informant."  Reasons were given for that suspicion.  Noting that the main planks of the prosecution case against Warren were observations, telephone communications and the product of the audio surveillance, Advocate Baker asserted that it was a common activity for participating informants or agents to steer conversations in a way which may be misinterpreted.  The jury, he said, was being invited to listen to one sided conversations and to draw conclusions from them.  It was submitted that the conversations needed to be considered in the context of the intelligence known to SOCA, and the authorities in Jersey and Holland, which may be much more detailed than had been disclosed.  This was highlighted, it was said, by the material disclosed very late before trial.

132.   Among the reasons advanced for seeking to call Pashley and Beghin were the following:-

"They can both give evidence as to the circumstances of the creation of [what the defence alleged was a false police] witness statement and the true nature of communications between Jersey and foreign authorities particularly SOCA and the Dutch.  That will go to the issue of who knew what, if anything, about Liazid's role.  It will go to whether SOCA truly refused to get involved in the unlawful audio monitoring or rather used a jurisdiction SOCA considered or hoped may be more compliant to their plans to fit Warren up at all costs. They can give evidence as to the lengths the Jersey police would take to secure Warren's conviction including lying to Her Majesty's Attorney General and the Chief Officer.  That evidence is relevant to the lengths to which the police will go to secure the conviction of Warren.  The question that will be posed to the jury by the defence will be this. If a small jurisdiction like Jersey will go the lengths shown in order to secure a conviction how much further might a larger more sophisticated jurisdiction go to?  Could that include the dishonest use of a deep undercover agent like Liazid?"

Of Advocate Jowitt, it was said:-

"This witness can give evidence as to the circumstances in which [the allegedly false] witness statement was obtained, taken and served on the defence. 

"... ... He can also give evidence as to the communication between the Law Officers' department and the Dutch authorities concerning the audio device.  The defence wish to submit that the Dutch reaction to the audio device may be indicative of a "fit Warren up at all costs" attitude. 

"... ... He can also give evidence as to the extremely slow and the defence say misleading way in which disclosure was made in this case.  This will go to the issue of whether the authorities are really prepared to make full disclosure to the defence so as to allow Mr. Warren to put his case in the best light. 

"... ... He can give evidence as to the Dutch failure to seek to arrest or extradite Liazid.  That evidence is relevant to the jury reaching true conclusions as to the likelihood of Liazid being a police agent/informant.". 

133.   A hearing on that application took place before the Commissioner on 28th September, during the course of which Advocate Baker was asked whether, even if Liazid were or might be an informant, that afforded a defence.  Advocate Baker replied in these terms:-

"Sir the point is this that the agent, the police agent, is in a position to manipulate the relationship so that what is said is misconstrued.  And Mr Warren's Defence, his case is, that they were not talking about drug trafficking when they were engaged in conversation.  And if there's a police agent who's manipulating conversation so that they give, those conversations can be misinterpreted, that is something which the Jury should know in assessing the conversation, or the one side of the conversation that they are listening to.  And to assess, the issue therefore becomes may it be that Liazid is a police agent, and to fully understand and appreciate that point in Mr Warren's defence they need to know the full lengths to which the police are prepared to go in order to fit Mr Warren up, to use the vernacular.  But that's my submission in a nutshell.  If it may be, if an issue in the case is, is Liazid or may Liazid be an informant, then the Jury are entitled to know so that Warren can put forward this tenable defence, the fact that the police are prepared to go to such lengths in order to fit him up.  I say that in my skeleton.  He doesn't know how the conspiracy against him works.  He doesn't know the lines of communication and the like.  And he seeks to explore that and to call witnesses who will enable him to do that. 

"What they can give evidence as to, or may be able to give evidence as to, are a number of things.  One, they may be able to give evidence as to the true nature of the relationship between the Jersey authorities, SOCA and the Dutch agencies, so as to cast some light on the submission that Liazid may be a police informant, they can do that.  They can give evidence as to the length the Jersey authorities have been prepared to go to in order to, I submit, fit Mr Warren up, including the unlawfulness that we've heard about to date, the creation of a false witness statement and the submission of those witness statements to this Court and to the Defence in the proceedings.  And I will submit from, on the back of that, I would submit that if this is what a smaller jurisdiction, and relatively unsophisticated jurisdiction, like Jersey is prepared to do in order to fit up Mr Warren, how much more likely is it that the Serious Organised Crime Agency or the Dutch authorities will go further and take more serious steps, in terms of trying to fit Mr Warren up.  And I will submit to the Jury that what's happened to him is part of a SOCA/Dutch driven financial investigation, the purposes of which to get him at all costs."

134.   The prosecution opposed the application. The Crown Advocate described the issue in the case as very straightforward and submitted that it did not require any of these witnesses to give evidence.  The issue was what was Mr Warren saying to Liazid on the telephone?  The prosecution case was that Mr Warren was talking about drugs.  The defence position was that Warren was talking about some other subject.  That, contended the Crown Advocate was a straight factual dispute.  The only two people who could tell the jury directly what that conversation was about were Liazid and Warren.  The jury had the transcript, and was entitled to consider it in light of the circumstances in which the telephone call was made, and in light of the other conversations that Warren had with, for example, Welsh, and they were entitled to reach a view about the matter on that evidence.  It was submitted that whether or not Liazid was an informant was irrelevant.  In any event, none of these witnesses knew whether or not Liazid was an informant.

135.   At the conclusion of the hearing, the Commissioner advised that he was not persuaded that the witnesses which the defence wished to call could give relevant or material evidence and that if they were called, he would not allow the line of questioning that Advocate Baker proposed.

Submissions

136.   In his written contentions, Advocate Baker repeats the submissions which were advanced before the Commissioner.  Evidence should be admitted, he submits, if it is material and it is material if it is relevant to an issue in the case: R-v-Reading JJ ex. p Berkshire County Council [1996] 1 Cr App. R. 239 DC.  The relevance of the evidence which these witnesses could give, he contends, was self-evident.  The Commissioner's refusal of leave for them to be called was wrong and deprived Warren of an opportunity to present his case in its proper light.

137.   The Crown's response is that the evidence which Warren sought to adduce was intended to shed light on the question whether Liazid was an informant.  Misconduct by the authorities in Jersey could shed no light on that question.  In any event, say the prosecution, even if he were an informant, that could not assist the jury to determine whether the 20th July conversation between Warren and Liazid was about drugs, or something else.

Discussion

138.   The Commissioner made the ruling with which this Ground of Appeal is concerned in the exercise of his discretion.  It is not suggested that, in doing so, he took into account any irrelevant consideration, or left out of account any relevant matter.  We can interfere with the exercise of his discretion, therefore, only if his ruling was "plainly wrong": Michel and Gallichan-v-AG [2006] JCA 190.

139.   In our judgment, it cannot be said that the Commissioner's ruling was plainly wrong.  The central issue for the jury was whether Warren was talking about drugs during the 20th July telephone conversation.  Whether or not the Jersey authorities had behaved unlawfully was not relevant to that issue.  There was no evidence that any authority in another jurisdiction had misconducted itself and it was not contended that the proposed witnesses could give such evidence.  Whether or not Liazid may have been an informant could not help the jury decide whether the conversation was about drugs.  There was no evidence that Liazid had, somehow, steered the conversation.  No evidence that the proposed witnesses could give would entitle the jury to conclude that he did.  

140.   Advocate Baker was not in a position to say that any of these witnesses would be able to give any evidence that would be relevant to the central issue.  He was able to put it no higher than that they may be able to give evidence as to the true nature of the relationship between the Jersey authorities, SOCA and the Dutch agencies, so as to cast some light on the submission that Liazid may be a police informant.  It is clear to us that the purpose in seeking to examine these witnesses was to see what might turn up. In our view, that would not have been a legitimate exercise, and the Commissioner was justified in indicating that he would disallow it.  In our judgment, it is not seriously arguable that the Commissioner erred in the exercise of his discretion. 

141.   In his written contentions, Advocate Baker raises another issue in the context of this Ground, in these terms:-

"What is more, having refused leave for the defence to call these witnesses, the Commissioner appears to have entertained overnight doubts on the propriety of his ruling.  He returned to Court the following morning and asked prosecuting counsel whether he was sure the witnesses were not relevant to the defence case.  Prosecuting counsel assured him they were not and thus none of the witnesses were called.  Involving the prosecution in this way was in breach of an elementary rule of natural justice (the prosecution became a judge in its own cause) and once more the appearance of fairness was lost."

142.   What the Commissioner said was this:-

"I want to be as sure as I can that I am correct in my ruling.  Crown Advocate Sharp you heard the way that Advocate Baker put his application.      And the issues which he said would arise in the Defence.  Can you assure me that none of the Witnesses listed in the application would be able to give material evidence in the sense that it would be relevant to an issue which the Jury have to consider."

143.   We reject Advocate Baker's submissions on this matter.  It is clear that Advocate Baker was not in a position to know, and did not know, precisely what evidence the proposed witnesses could give.  The prosecution was, or may have been, in that position.  We read the Commissioner's words to be an invitation to the Crown Advocate to give an assurance that none of the witnesses could give relevant evidence.  That is different from asking him whether the evidence which the defence sought to adduce was relevant, which is the question on which the Commissioner had been addressed and had determined the previous day.  In our view, therefore, the defence criticism of the Commissioner is ill-founded.

Decision

144.   It follows from what we have said that leave to appeal against conviction on Ground 3 is, in each case, refused.

Ground 4

"The Applicant did not Receive a Fair Trial"

145.   On behalf of Warren it is contended that he did not receive a fair trial.  Particular reference was made to the view, expressed by Lord Brown in the Privy Council decision in Michel-v-R [2009] UKPC 41, at paragraph 32, in these terms:-

"It is imperative that a party to litigation, above all a convicted defendant, will leave court feeling that he has had a fair trial, or at least that a reasonable observer having attended the proceedings would so regard it".

Advocate Baker advanced a number of contentions in support of this Ground.  We address each in turn. 

146.   The first contention was that the Commissioner refused to hear Advocate Baker on what was described as "a crucial point" when, at the end of the trial, he wished to be heard on a matter concerning the discharge of a juror, the effects on the remainder of the jurors and the possible need to discharge them - an area usually regarded as being of the utmost importance. 

147.   We have dealt with this issue as an individual Ground of Appeal.  Having discussed the matter above, we do not perceive it to have any bearing on concerns as to whether or not there was a fair trial. 

148.   Secondly, it was submitted that, at a pre-trial hearing, the Commissioner had "quickly" ruled against a defence application for disclosure, sent the press out of Court and gave notice that he was minded to make a personal wasted costs order against Advocate Baker.  Whilst the Commissioner did not make a wasted costs order, it was submitted that his threat to do so was intimidating.  Although the defence advocate was not intimidated, nevertheless, in the applicant's perception, there was an attempt to intimidate the advocate from defending his client to the best of his ability. 

149.   A wasted costs order is a serious matter and, if proposed, may well be dealt with in a firm manner.  It will be a rare occasion, indeed, that its being proposed suggests intimidation; an example might be that there were no possible grounds for making an order.  That is not suggested here. 

150.   Thirdly, at a very late stage, the Commissioner ruled that the applicant should be tried by Jurats and not a jury, even though the applicant had elected for trial by jury and even though that right had vested.  It was submitted that, whilst the ruling was overturned by this Court, the applicant was put to the lengths of an appeal against a first instance decision.  We do not accept that such a difference of view between a trial judge and an appellate court could, of itself, indicate the likelihood that there was not a fair trial. 

151.   Fourthly, Advocate Baker advanced a number of individual points, as follows:-

(i)        Warren has been singled out in the way he has been treated;

(ii)       The police have acted unlawfully towards him and neither the Court of trial nor any other authority has applied sanctions about that in his favour in order to redress the balance of fairness;

(iii)      He has been denied the right to call material witnesses;

(iv)      He did not receive timely and proper disclosure;

(v)       He has been deprived of information concerning the discharge of a juror and the Commissioner made no proper enquiry as to its effects on remaining jurors;

(vi)      The Commissioner wrongly sought to influence the remaining jurors from seeking to be discharged.

152.   We do not consider any of these points, individually or collectively, to advance the applicant's claim that he did not receive a fair trial.  Whilst there may emerge, on occasion, conduct which can be considered oppressive and which might be considered to be an abuse of process, the circumstances are likely to be stark, in that any right minded individual, properly considering the whole matter, would consider oppression to have occurred: see, for example, R-v-Heston-Francois 1984 Q.B. 278 and Michel-v-R, cited above, at paragraphs 1 and 12-14.  That is to be contrasted with the conduct of a trial where the presiding judge, properly carrying his or her duties, acts with firmness and, on occasion, finds against a defendant on procedural matters. 

153.   In summarising matters in Michel, cited above, at paragraph 34, the Privy Council, in considering judicial control and intervention stated:-

"Of course he can clear up ambiguities.  Of course he can clarify the answers being given.  But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow.  He must not cross-examine witnesses, especially not during evidence-in-chief.  He must not appear hostile to witnesses, least of all the defendant.  He must not belittle or denigrate the defence case.  He must not be sarcastic or snide.  He must not comment on the evidence while it is being given.  And above all he must not make obvious to all his own profound disbelief in the defence being advanced."

154.   The Privy Council also referred to the views of the Board set out by Lord Bingham of Cornhill in Randall-v-R [2002] 1 WLR 2237, 2251:-

"But the right of a criminal defendant to a fair trial is absolute.  There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.  The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

155.   The Privy Council observed, at paragraph 28, that Lord Bingham was, of course, right to recognise that by no means all departures from good practice render a trial unfair.  So much, indeed, had been plainly implicit in the Judgment of the European Court of Human Rights in CG-v-United Kingdom (2002) 34 EHRR 31, 789 which rejected the complaint that the trial proceedings as a whole were unfair notwithstanding the court's finding that the judicial interventions had been "excessive and undesirable".  Ultimately, the question was one of degree.  The Board concluded that rarely will the impropriety be so extreme as to require a conviction, however safe in other respects, to be quashed for want of a fairly conducted trial process. 

156.   The submissions on behalf of the defence in support of this Ground of Appeal do not begin to approach such a threshold. 

Decision

157.   Leave to appeal on Ground 4 is, accordingly refused. 

Ground 5 - Hunt

(a) "That the Commissioner erred by giving the jury a conspiracy direction on one or more conspiracies, but then failed to give a full and correct explanation as to how that direction should be applied to the facts of this particular case; and

(b) "That there was no evidence or no sufficient evidence from which the jury could be satisfied that Hunt had knowledge, or agreed to take part (in pursuance of a criminal purpose held in common between them) in the Warren/Liazid importation of 60 Kg and/or the Welsh importation of 60 Kg of cannabis resin.

158.   Hunt alone seeks leave to appeal in respect of the direction given to the jury by the Commissioner as to how they should approach the offence of conspiracy alleged in this case.

General

159.   Advocate Haines accepts that the conspiracy direction given in the summing up and handed to the jury is correct.  It was prepared and approved in consultation with the defence advocates, and, with specific reference to the evidence in this case, follows exactly the standard directions approved by the Judicial Studies Board with the addition of a passage from R-v-Griffiths and Others [1966] 1 Q.B. 589 and a passage from R-v-Meyrick and Ribuffi (1923) 21 Cr. App. R 94.  Advocate Haines submits, however, that the direction should have been expanded in relation to the evidence concerning his submission of evidence concerning "one or more conspiracies."

160.   In order to consider whether the jury was, or may have been, misdirected, we set out the direction in full:-

"Just as it is a criminal offence to import a controlled drug such as cannabis or cannabis resin (as in this case), so it is a criminal offence for two or more persons to agree with one another to commit the offence.  An agreement to commit an offence is called a conspiracy, and that is the offence which is charged here.  Before you can convict any of these defendants of this offence you must be sure (1) that there was in fact an agreement between two or more persons to commit the crime of importing Cannabis Resin into Jersey, and (2) that the defendant whose case you are considering was a party to the agreement, in the sense that (a) he agreed with one or more of the other defendants that the crime should be committed, and (b) at the time of agreeing to this, he intended that they should carry it out.

You may think that it is only in a rare case that a jury would receive direct evidence of a criminal conspiracy.  You would not expect criminals to reduce their agreement to writing.  When people make agreements to commit crime, you would expect them to do so in private and when they think they are not being observed.  But people may act together to bring about a particular result in such a way as to leave no doubt that they are carrying out an earlier agreement.

Accordingly, in deciding whether there was a criminal conspiracy, and if so whether the defendant whose case you are considering was a party to it, look at all the evidence as to what occurred during the relevant period, including the behaviour of each of the alleged conspirators.  If, having done so, you are sure that there was a conspiracy and that he was a party to it, you must convict.  If you are not sure, you must acquit.

In this case, the prosecution seeks to rely upon things said and done by the defendant Welsh not only against him, Welsh, but also as part of the case against other defendants, for example, Warren and O'Brien.  I have in mind the conversations which Welsh had while in the hire car and during meetings with Liazid and other men in Amsterdam.  The other defendants were not present when these things were said or done and were therefore unable to confirm or deny the truth of what was said by Welsh or Liazid.  Equally, the other defendants could not approve or disapprove of what Welsh or Liazid did.  For this reason, you should treat this evidence with caution when you come to consider its effect on the cases against the other defendants.  Before you can hold this evidence, or any part of it, against the other defendants, you should consider all of the evidence on which the prosecution relies and then ask these questions; Are you sure (1) that this evidence is true; (2) it amounts to things said or done by Welsh in the course of and for the purpose of carrying out the conspiracy; and (3) that Welsh, in saying what he did was not maliciously and falsely involving the other defendants in the conspiracy to which in truth they were not parties.

If the evidence passes these tests, then you may take it into account when you consider the cases against the other defendants, and it is for you to decide what weight you shall give it.  If it fails either or any of the tests, you must ignore it in the other defendants' cases.  And I would add this.  What I have said about Welsh applies equally to Liazid, do you follow, the other named conspirator, although not co-defendant?

When criminal conspiracies are formed, it may well happen that one or more of the conspirators is more deeply involved in and has a greater knowledge of the overall plan than the others.  Also, a person may agree to join in the conspiracy after it has been formed, or he may drop out of it before the crime has been fully carried out.  Provided you are sure in the case of any defendant that he did at some time agree with another conspirator that the importation should be carried out, and at that time intended that it should be carried out, it does not matter precisely where his involvement appears on the scale or seriousness or precisely when he became involved, he is guilty as charged.  Neither does it matter that the conspiracy was not completed and that it was foiled by police intervention.  The organiser of a crime who recruits others to carry it out is equally guilty of conspiracy whether or not the organiser intends to play some active part in it thereafter".

161.   The Commissioner then went on to deal with what he referred to as "an issue which has been raised in the present case, that is to say as to whether there was one conspiracy or two or more."  He put forward the following two quotations from separate authorities:-

"In law, all must join in the one agreement each with the others in order to constitute one conspiracy.  They may join in at various times, each attaching himself to that agreement.  Any one of them may not know all the other parties but only that there are other parties.  Any one of them may not know the full extent of the scheme to which he attaches himself.  But what each of them must know is that there is coming into existence or is in existence a scheme which goes beyond the illegal act which he agrees to do."

"If one or more persons are at the centre of the conspiracy of the unlawful activity and deal with individuals who do not know or know of each other and each of whom is ignorant of the fact that the activities go beyond his own dealings, then the whole evidence relating to all the individuals does not disclose one single conspiracy.  If however, each individual, although ignorant of the details concerned, knows that there are others and that the activity in which he takes part extends beyond his own dealings with the person or the persons at the centre, then the evidence discloses one conspiracy.  The question is whether there was a common criminal purpose."

162.   Hunt contends that the Commissioner then erred when he went on to explain his direction in relation to the facts of the case, in the following terms:-

"The prosecution case is that there was one conspiracy.  It is said that Warren, Liazid and Welsh knew the whole details of the scheme.  The prosecution allege that O'Brien, Woodward, Hunt, and Lucas joined in that one conspiracy.  The prosecution case is that they knew that the importation was bigger than their personal investment and that there were other people involved.  Therefore it is submitted all of them are conspirators in the one conspiracy.  It does not need to be shown that they knew the full extent of the scheme or the exact amount to be imported.  If you conclude, for example, that Warren, Welsh and Liazid were parties to that conspiracy but that the others, O'Brien, Woodward, Hunt and Lucas did not know or know of each other., and each of those four was ignorant to the fact that the activities went beyond his own dealings, then the whole evidence relating to all the individuals does not disclose one single conspiracy.  However, it is not the case, as some counsel suggested, of all or nothing.  You would acquit O'Brien, Woodward, Hunt and Lucas, but Warren and Welsh would be guilty and you would convict them, since they were parties to the general conspiracy.  I hope it is plain Mr Foreman, and to your colleagues.  If need be I can always repeat it."

Submissions

163.   Advocate Haines submits that in this passage the Commissioner, having given a direction on one or more conspiracies, failed to give a full and correct explanation as to how that direction should be applied to the facts of this particular case, and that the jury did not receive sufficient explanation in respect of the evidence which concerned Hunt.  The jury should have been told, he contends, that they must be satisfied that Hunt agreed to take part in each and all of the three parts.

164.   At the close of the prosecution case Advocate Haines made no submission that there was no case for Hunt to answer, and he accepted in discussion with this Court that there was some evidence on which a properly directed jury could convict of the offence as alleged against him.  Hunt had not been called to give evidence and Advocate Haines had made a lengthy closing submission to the jury on his behalf.

165.   The essence of the closing submission was that if there was a conspiracy Hunt was not a party to it.  Advocate Haines suggested that, as the Crown case concerned three 60 kilogram consignments of cannabis resin, with different defendants involved with each of the three separate consignments, and with different paths of transportation, there was potentially more than one conspiracy.  Advocate Haines submitted that the jury could not be sure that Hunt signed up to any conspiracy or all three parts of this one conspiracy.  He went on to indicate reasons why Hunt could not have known of the larger scheme alleged in this case, being the 60 kilograms for Welsh and the 60 kilograms for Warren and Liazid.

The History of the Conspiracy Direction

166.   On 23rd September, shortly after the trial began, the Commissioner had prepared and given a draft direction on conspiracy to the advocates for their consideration and comment.  On 29th September a skeleton argument and bundle was filed with the Court by Advocate Haines, in relation to further directions on conspiracy.  That bundle contained a number of authorities, including R-v-Greenfield [1973] 1 W.L.R. 1151, AG-v-Durkin [2004] JRC 068, R-v-Griffiths and Others [1966] 1 Q.B. 589, R-v-Meyrick and Ribuffi (1930) 21 Cr App R 94, R-v-Mintern [2004] EWCA Crim 7 and O'Connell-v-R HL (1844) 5 St. Tr. (N.S.) 1.  (This Court was further referred to the recent case of R-v-D [2009] EWCA Crim 584, in which the established principles were re-stated).  On that morning the Commissioner discussed with the advocates the case of Griffiths and gave them time to consider the matters set out in the skeleton.  Later the same day there was further discussion during which Advocate Haines submitted that it could be argued that there were potentially three conspiracies, and that a direction should be given in relation to those circumstances.  The Crown restated their case that there was one conspiracy albeit that different people were brought in at different times.  The Commissioner agreed to add the passage from the Judgment of Paull J in Griffiths.  Advocate Haines repeated his submission that if the jury were to find that there was more than one conspiracy then, in respect of Hunt, they should acquit him.  Closing submissions were then made. 

167.   On 1st October, prior to summing up, the Commissioner again discussed with the advocates the proposed conspiracy direction and the possibility of separate and different verdicts depending on the findings of fact made by the jury.  This discussion ended when the Commissioner asked the advocates whether they were content that he hand to the jury the draft he had prepared and shown to them, with perhaps an addition dealing with the questions raised in defence speeches.  Despite initial resistance, all agreed to the written direction being handed to the jury. 

168.   Before this Court, Advocate Haines submits that the purpose of the direction given to the jury was to assist it on the question of whether there was only one conspiracy and whether Hunt (and each other defendant) had knowingly signed up to the whole of the one conspiracy.  Potentially, he contends, there were three conspiracies involving three parcels of drugs to be distributed as indicated.  Without further reference to the facts of the case, he submits the legal direction would not make sense to the jury.

169.   He expressed concern that the direction relates to knowledge, and that the Commissioner failed to state at all - or with sufficient clarity - that knowledge is not enough.  Hunt must be proved to have agreed to be part of the one conspiracy involving all three parts. 

170.   Advocate Haines submitted that the Commissioner summed up the facts of the case in respect of Woodward, Hunt and Lucas he did not undo or correct his earlier misdirection.  If the jury had been properly directed on conspiracy, tailored to the facts of the case, then, he argued, there was insufficient evidence upon which the jury could have been satisfied:-

(i)        that Hunt had knowledge of and/or agreed to take part in the "Warren/Liazid 60kg" or;

(ii)       that Hunt had knowledge of and/or agreed to take part in the part involving the "Welsh 60kg".

171.   Advocate Haines further submitted that the jury might have been confused by the Commissioner's reference to "boat" or "boats" in his summing up.  

Submissions for the Crown

172.   The Solicitor General submits that the jury was given a clear and proper direction.  The Commissioner correctly outlined the law, set out the defence and referred to the facts.  The facts of the case were clear and it was not necessary for the Commissioner to elaborate on plain English.  The evidence revealed a single conspiracy.  There was one cargo to be transported by road from the same source in Amsterdam to the Normandy coast.  Originally, there was one boat to bring the drugs into Jersey.  That is what Hunt signed up to.  The fact that the drugs were to be shared in Jersey among the conspirators does not impinge upon the existence of the single conspiracy.

173.   The Crown did not have to prove that Hunt understood the full extent of the scheme, the precise shares or interests, nor the exact amount to be imported.  It was irrelevant whether he believed the rest of the cargo was for Welsh or to be shared with Warren and others.  The Crown had to prove only that Hunt had agreed to participate in an importation that extended beyond his own share or investment.

174.   As to sufficiency of evidence, the Crown indicate the following parts of the evidence as capable of proving the case alleged:-

(i)        Hunt's regular meetings and telephone contact with Welsh;

(ii)       Welsh's vested interest reflected by his anger and frustration at the financial problems of Hunt and the others clearly evident from the surveillance photographs;

(iii)      That between 30th June and 14th July, Hunt was the only party to the conspiracy who owned a boat.  He must have been told the size of his cargo;

(iv)      Welsh's conversation with Hunt, Lucas and Woodward on his return from  Holland on 21st July in which he revealed he had paid for his half;

(v)       Welsh's meeting with Warren on 4th July, conducted in full view of Hunt and Woodward immediately after Welsh had met with them regarding their financial problems;

(vi)      That it was not credible to suggest other than that Hunt must have known that Welsh and Warren had their own interests in the cargo.

175.   The Solicitor General further submitted that not only was the summing up correct in the way the jury was directed on the law, but the summing up was favourable to Hunt on the facts in that no reference was made to certain pieces of evidence damaging to him.  The Crown submitted that the Commissioner's reference to "boat 'or' boats" in his summing up was of no consequence.

Discussion

176.   In our judgment, this application is misconceived.  The jury was correctly and carefully directed on the law, after considerable discussion with the advocates, and the Commissioner having considered all the matters raised by Advocate Haines in his skeleton argument.  As he was entitled to do, the Commissioner referred to some of the facts which he considered relevant and appropriate.  Advocate Haines had covered all the matters which he could properly submit on behalf of Hunt in his closing speech, and all the issues, including whether there may have been one conspiracy or more, were before the jury for it to consider.  There was no requirement or need for the Commissioner to provide any further explanation on the facts relating to that issue.  The evidence had been fully rehearsed by Advocate Haines and the jury would have had all the evidence well in mind at this stage of the trial.

177.   We reject the submission that the conspiracy direction was such as to equate the word knowledge with agreement. The direction was clear both as to the essential ingredients of the offence of conspiracy, and as to how those ingredients might be established on the evidence. There was ample evidence on which this properly directed jury could be satisfied so that they were sure that Hunt was a party to the alleged conspiracy from an early stage.

178.   We do not accept that the jury could have been confused by the legal directions given, nor by the Commissioner's references to the facts which were already very clearly and fully before them.  In particular we agree with the learned Solicitor General that the reference to "boat 'or' boats" had no material bearing on the matters before the jury.

179.   In our view, it is not seriously arguable that the jury was misdirected in any way in relation to the alleged conspiracy; nor, in our view, is it seriously arguable that there was insufficient evidence to support the case as set out by the Crown.  Accordingly, it is not seriously arguable on this Ground that there was a miscarriage of justice.

Decision

180.   The application made on behalf of Hunt for leave to appeal his conviction on this Ground is refused. 

Applications for Leave to Appeal against Sentence

181.   Warren, Welsh, O'Brien and Woodward seek leave to appeal the sentences passed by the Superior Number on 3rd December, 2009, following their convictions for the offence of conspiracy to import cannabis resin.

182.   The Attorney General's Sentencing Conclusions were before the Court, together with a summary of the facts of the case.  The Court was reminded that the maximum sentence in respect of the statutory offence of importing cannabis is fourteen year's imprisonment.

183.   In Jersey the starting point for the importation of more than 30 kilograms of cannabis is 10 years plus Campbell & others-v-AG [1995] JLR 136  Styles & others-v-AG [2006] JCA 095 and O'Connor & others-v-AG [2007] JCA 104.  In the case of Styles a starting point of 12 years was taken for the importation by aeroplane of 90 kilograms.  O'Connor featured a starting point of 12 years for 70 kilograms.

184.   The Crown in fixing a starting point, should take into account not only the quantity and street value of the drugs but the nature and scale of the activity and any other factors which show the degree to which the defendant was concerned in drug trafficking.  Rimmer-v-AG [2001] JLR 373.  In R-v-Ilsemann (1990-91) 12 Cr App R (S) 398 which concerned the imposition of the maximum sentence for a conspiracy to import cannabis resin with a street value in the UK in excess of £1 million pounds, it was made clear that the future intent of a defendant is or can be a relevant factor in the following passage:-

"In our judgment what matters is not the actual amount found in the possession of the appellant, but what was brought to this country by the appellant and the total criminality of his mode of operation and its prospects of continuing in the future."

Curtis Warren

185.   The Attorney General took a starting point of 13 years.  The reasons were set out as follows:-

(i)        Warren has been concerned in international drug trafficking at the highest level for a number of years.  A prominent feature of his defence at his trial was that he was too sophisticated a drug dealer to have become involved in such a small scheme which only concerned £1 million worth of cannabis.

(ii)       This was a conspiracy to import the largest ever quantity of cannabis (to come before the Royal Court) into the Island.  The scale of the criminality and the future intent can be determined by Warren's description of the scheme as a "little starter".

(iii)      Warren was the mastermind, the ultimate principal and had control over the scheme from source to distribution.  He was the crucial link between Jersey and Holland.

(iv)      There is no mitigation.

(v)       There is no credit for a guilty plea, there is no remorse.  His defence was that he had been fitted up by the various law enforcement agencies.

(vi)      Warren has a lengthy and significant criminal record.  He has convictions for armed robbery and blackmail, and has been convicted in Holland of being the leader of an organised crime group engaged in the import and export of cocaine in aluminium ingots from Venezuela to Holland and the UK.  Vast quantities of drugs were involved.  He was also convicted of firearms offences.  In 1999 he was convicted of the manslaughter of a prison inmate.  He is prohibited from returning to Holland.  A confiscation order of 6.2 million Euros was imposed which largely remains unsatisfied.

(vii)     There was no appreciable gap between his release from prison in Holland and the start of the conspiracy in Jersey. 

(viii)    There was no pre-sentence report as he refused to cooperate with the probation service.

Conclusion - 13 year's imprisonment.

186.   Advocate Baker submitted to the Commissioner that Warren should not be sentenced on his criminal history and the Commissioner accepted that submission.  Advocate Baker described the conspiracy as half baked and hopeless.  There was no or very little cash, and the conspirators did not get any drugs.  He invited the Court to fix the starting point at the lower end of the 10-13 year bracket for this case.

187.   Advocate Baker's principal submission was that as the police officers investigating the case had been guilty of conduct described as "most reprehensible and unlawful, and to say the least regrettable" and of which the Court had expressed disapproval, the defendants had been the victims of unfairness in the sense of breaches of the law by the police which had resulted in the defendants being brought before the Court.  The Commissioner was invited to regard the unlawful conduct of the police as mitigation capable of being reflected in a reduction of sentence.  The Court was told that, in Holland this course can be taken and, in the present case if such a reduction were to be made it would send out a message to the public as to the importance of the rule of law being upheld, and to the defendants that the Court acknowledges the seriousness of the conduct directed towards them.  Advocate Baker submitted that the Court should mark its disapproval of what had happened in the investigation by a substantial reduction in sentence.  He likened the situation to that where sentences had been reduced in entrapment cases.  He conceded that there should be a substantial sentence and invited the Court to conclude that in this case a proper sentence for Warren would be 6 years' imprisonment.

188.   The sentence of the Court was 13 year's imprisonment.

189.   Advocate Baker submits to this Court that the Superior Number was wrong in principle when it failed to give a substantial reduction in sentence to reflect the executive misconduct in this case.

190.   He argues that, although the Commissioner and this Court have each criticised and condemned the police conduct in this case, the Jersey executive has ignored those words and there has been no disciplinary action against any police officer.  In the absence of any reduction in sentence the Courts' words will be meaningless and the Jersey Courts will have proved ineffectual.  He indicated that this was a highly unusual case.  The rule of law should be paramount and sentencing should be flexible to mark the disapproval of the Court.  He accepted that Warren had little personal mitigation and that he had just been released from custody prior to the present offence.

191.   We have considered all the submissions made on behalf of Warren.  We are not persuaded that a reduction in sentence on the basis Advocate Baker invites is appropriate, either in this jurisdiction or in this case.  In our opinion, the assertion that police officers involved in this case have not been disciplined is not relevant to the question whether the sentence passed for the offence of which Warren was convicted was wrong in principle, or manifestly excessive.  All relevant factors were properly taken into account and reflected in the sentence which was passed for this very serious offence. 

192.   It is not seriously arguable that 13 years was wrong in principle, nor manifestly excessive.  Accordingly, we refuse this application for leave to appeal sentence. 

John Welsh

193.   The Attorney General took a starting point of 12 years.

194.   The reasons set out are as follows:-

(i)        Welsh was at the very hub of the conspiracy offence.  He recruited other defendants, invested his own money into the scheme and was instrumental in coordinating the practical arrangements to execute the conspiracy in Holland and in Jersey.  He readily and closely allied himself with Warren, an associate for 20 years and willingly took direction from him. 

(ii)       He has a substantial criminal record.  He was convicted in 2000 of trafficking heroin and cocaine on the Island and was sentenced to ten years six months imprisonment.  That was his third drugs related conviction on the Island, one being for the importation of ecstasy.  There is no remorse.  There is no social enquiry report, Welsh having refused to see a probation officer.

(iii)      Conclusion - 12 year's imprisonment. 

195.   In the Royal Court, Advocate Fitz, on Welsh's behalf, adopted the submissions of Advocate Baker and invited the Court to reduce the sentence to reflect the illegal behaviour of the police.  She conceded that the situation was unusual, and asked the Jurats to exercise their discretion to mark that misconduct and to send out a message that illegal behaviour by the police will not be tolerated by the Court.  

196.   She conceded that the present situation was not one of entrapment and that she could not point to any specific mitigation.  She did, however, invite the Court to give some reduction from the appropriate starting point and to pass a sentence which would not leave Welsh without hope.

197.   The sentence was 12 year's imprisonment. 

198.   In this Court, Advocate Fitz adopted the submissions of Advocate Baker in support of the proposition that the sentence was wrong in principle in that it was not reduced to reflect the police misconduct and had nothing to add. 

199.   We reject the submissions that a reduction in sentence was the correct way for this Court to show disapproval of the conduct of some investigating officers.  The sentence passed took into account all the relevant circumstances of this serious offence and the part played by the applicant. 

200.   In our judgment, It is not seriously arguable that the sentence is either wrong in principle or manifestly excessive and accordingly this application is refused. 

James O'Brien

201.   The Attorney General took a starting point of 11 years.

202.   The reasons are set out as follows:-

(i)        O'Brien had an important role to play.  He was an experienced boatman who was to transport at least a large part of the cannabis resin to Jersey.  In 2002 he was convicted of an offence of being concerned in the most substantial importation of cannabis then ever prosecuted in Jersey.  On that occasion he transported the drugs from Normandy by boat under darkness for which he received a substantial prison sentence from which he was released in 2007. 

(ii)       He was recruited by Welsh on 15th July.  He instructed a colleague to prepare his boat for sea and held a series of meetings with Welsh and was in constant telephone contact with him during the Amsterdam weekend.  He acquired and/or programmed a Marine GPS unit to take him from Jersey to France on the proposed importation route.  His role was less significant than in his previous offence. 

(iii)      There is no guilty plea or remorse.  He refused to see a probation officer so that there is no social enquiry report.  There is no mitigation. 

203.   Conclusion - 11 year's imprisonment. 

204.   In the Royal Court, Advocate Bell adopted the submission that the sentence should be reduced to reflect the misconduct of the executive.  He submitted that there was some personal mitigation available to O'Brien.  It was pointed out that no cash was seized and that there was no importation or seizure of drugs. 

205.   O'Brien was sentenced to 10 year's imprisonment. 

206.   In this Court, Advocate Bell repeated the submissions that he had advanced in the Court below, and raised an additional ground of disparity in relation to O'Brien's sentence and the five year sentences passed on Woodward, Hunt and Lucas. 

207.   The Court was told that the applicant did not accept the alleged role attributed to him and it was submitted that the starting point for his sentence should not have been higher than for the three other offenders.  Advocate Bell argued that the difference cannot be justified by their alleged respective involvements.  O'Brien was recruited at a late stage.  There was no suggestion that he provided finance or had a share in the consignment or was to be involved in its distribution.  It was submitted that the Commissioner erred when he told Woodward, Hunt and Lucas that their participation was considerably less than that of Warren, Welsh and O'Brien.  They were sentenced separately from Warren, Welsh and O'Brien and that indicated to the applicant that the Court was still undecided as to their sentences. 

208.   O'Brien felt a sense of grievance which, in the circumstances, was justified. 

209.   We have already indicated that we do not regard a reduction in sentence to reflect police misconduct as an applicable sentencing principle.  We cannot accept that his sentence was other than entirely appropriate for the part that O'Brien was to play in this serious importation.  He was recruited for his skill and experience and we have no doubt that his role was significantly different from that of the other three recruits.  We reject the disparity submission and conclude that this sentence cannot seriously be argued to be either wrong in principle or manifestly excessive. 

210.   This application for leave to appeal is refused. 

Jason Woodward

211.   The Attorney General took a starting point of 11 years.  

212.   The reasons were as follows:-

Woodward was active in the furtherance of the plot from the outset together with Hunt.  He had a significant financial interest in the importation.  He was 20 years old at the time of the offence, 22 at the time of sentence.  His principal mitigation was his youth and previous good character. 

213.   Conclusion - 8 years. 

214.   Advocate Gilbert submitted a letter to the Royal Court from the applicant expressing remorse for causing so much grief to his family.  He denied the offence and the Court was referred to a probation report.  Although the Crown had alleged a substantial financial involvement the only money he had in his possession when he was arrested disembarking from the boat from France was £700.  Advocate Gilbert argued for a lower starting point on the ground that, on the Crown case, Woodward played a substantially lesser role than others.  Letters of reference were produced to the Court and a psychotherapist's report was taken into account.  Woodward was a man of good character, supported by his family and fully engaged with the probation service. 

215.   Advocate Gilbert invited a substantial reduction from the starting point, to reflect his considerable personal mitigation. 

216.   Woodward was sentenced to 5 year's imprisonment. 

217.   In this Court, Advocate Gilbert adopted the submissions of Advocate Baker regarding a reduction in sentence to reflect police misconduct and asserted that, if that principle applied, it should apply across the board.  Her submission was that, although 5 years may not be considered manifestly excessive, the sentence of Woodward should be reduced.  

218.   We have indicated in each of these applications that we reject the submissions that sentences should be reduced to indicate disapproval of police misconduct and we are not persuaded that the sentence passed on Woodward was even arguably wrong in principle or manifestly excessive.  All his considerable mitigation was properly reflected in his sentence. 

219.   This application for leave to appeal sentence is refused. 

Authorities

Customs and Excise (Jersey) Law 1999.

R-v-Hambery [1977] Q.B. 924.

R-v-Hutton (1990) Crim. L.R. 875.

R-v-Momodou and R-v-Limani [2005] 1 WLR 3442.

R-v-Sussex J.J. Ex p. McCarthy [1924] 1 KB 256.

R-v-Smith and R-v-Mercieca [2005] 1 WLR 704.

R-v-Shuker and Shuker [1998] Crim. L R 906.

R-v-Blackwell [1995] 2 Cr. App. R. 625.

R-v-Putnam [1991] 93 Cr. App. R. 281.

R-v-Appiah (1998) Crim. L.R. 134.

Hiro Balani-v-Spain (1995) EHRR 566.

European Convention on Human Rights.

R-v-Comerford [1998] 1 WLR 191.

R-v-Twomey and others [2010] 1 WLR 630.

R-v-S(K) [2010] 1 Cr App R 20.

R-v-Robert Clifford Brown [2001] EWCA 2828.

R-v-H [2004] 2 AC 134.

R-v-Keane [1994] 1 W L.R.746, 752.

McLeod-v-HM Advocate (No 2) 1998 JC 67.

HM Advocate-v-McDonald [2008] UKPC 46 2008 SCCR 954.

Sinclair-v-HM Advocate 2005 1 SC (PC) 28.

Le Pavoux-v-Attorney General [2003] JCA 127.

Human Rights (Jersey) Law 2000.

Edwards-v UK (1992) 15 EHRR 417.

Allison-v-HM Advocate [2010] UKSC 6; 2010 SLT 261.

Attorney Guidelines on Disclosure (published in April 2005).

Attorney General's Guidelines for Prosecution Case Management and Disclosure.

Durkin-v-Att. Gen. [2005] JRL 12.

R-v-Melvin and Dingle unreported 20th December 1993.

R-v-Keane (1994) 99 Cr. App. R.1.

Regulation of Investigatory Powers (Jersey) Law 2005.

Interception of Communications (Jersey) Law 1993.

McInnes-v-HM Advocate 2010 SLT 266.

AG-v-Warren & Others [2009] JRC 060E.

Warren & Others-v-AG [2009] JCA 135.

AG-v-De La Haye [2009] JRC 061.

R-v-Reading JJ ex. p Berkshire County Council [1996] 1 Cr App. R. 239 DC.

AG-v-Michel [2006] JCA 190.

R-v-Griffiths and Others [1966] 1 Q.B. 589.

R-v-Meyrick and Ribuffi (1930) 21 Cr. App. R 94.

R-v-Greenfield [1973] 1 W.L.R. 1151.

AG-v-Durkin [2004] JRC 068.

R-v-Mintern [2004] EWCA Crim 7.

O'Connell-v-R HL 1844 5 St. Tr. (N.S.) 1.

R-v-D [2009] EWCA Crim. 584.

Campbell & others-v-AG [1995] JLR 136.

Styles & others-v-AG [2006] JCA 095.

O'Connor & others-v-AG [2007] JCA 104.

R-v-IIsemann 12 Cr App R (S) 398.