Millard, R. v

These are appeals by Gary Millard and Matthew Middleton against their convictions at Isleworth Crown Court on 10th August 2001 before HHJ McDowall and a jury of being knowingly concerned in the importation of ten kilogrammes of cocaine as charged in count 1 of the indictment. The jury was discharged from returning a verdict on count 2, which in the alternative, alleged possession of the same cocaine with intent to supply. This was a very serious offence. Millard was sentenced to 17 years imprisonment, and Middleton to 15 years imprisonment.

There were four co-defendants. Christopher De La Rue was acquitted on counts 1 and 2. Dudley Edge was acquitted on count 1, and was not charged on any other count. The jury was unable to agree verdicts in relation to two further defendants, Stephen Dillon and Gary Martin.

The essential facts of the case were straightforward. On 8th April 2000, Dudley Edge returned to this country from Spain in his lorry carrying a package which contained ten kilogrammes of cocaine. Before Edge returned to this country, numerous telephone calls were made or were attempted to be made by mobile telephones belonging to Millard and Middleton respectively to Martin’s mobile telephone in Spain. Martin was said to have organised the collection of the drugs by Edge while he was in Spain.

Immediately upon Edge’s return to this country, his mobile telephone called the mobile telephone of Millard, and which then called the mobile telephone of Middleton.

On the following day, after a phone call from Millard to Edge, there was further contact between Millard’s mobile telephone and De La Rue’s and Middleton’s mobile telephone, and shortly after 11am Middleton and De La Rue were observed going to a telephone kiosk in Loughton from where a call was then made to Edge’s mobile telephone. Thereafter, and while Middleton was still in the telephone kiosk, there was contact between his mobile telephone and Millard’s mobile telephone. At trial the jury was presented with a colour-coded schedule of events and phone calls which took place between January and May 2000. The evidence of these communications between those allegedly involved in the importation of this cocaine represented a significant feature of the Crown’s case, and in particular demonstrated a very large number of telephone calls indeed involving Middleton and Millard, and their mobile telephones.

To return to 9th April, later that morning Middleton and De La Rue travelled to Hangar Lane in two vehicles. The package containing the cocaine was handed to them and then placed in the boot of De La Rue’s car. Middleton and De La Rue drove in convoy to 1 Prescott Green, Loughton, Middleton’s home. During the course of the journey, according to the Crown’s case, a meeting took place at Loughton between them and Dillon and Millard. Part of the package was transferred to them. Millard himself arrived at Prescott Green shortly after Middleton and De La Rue’s arrival there.

Shortly afterwards, this address was raided by armed police. De La Rue was seen to run away through the back garden. Millard was arrested at the side of the house near a barbeque where some packaging was found. About half an hour later Middleton emerged from the area of a shed in the garden next door. He ignored an order from an armed officer to stand still, and climbed over garden fences into an adjoining garden where he was arrested. In the kitchen of Middleton’s home, two mobile telephones were found. They were linked to some of the telephone evidence to which reference has already been made. At trial Middleton denied that they were his telephones.

It was however undisputed at trial, and effectively encapsulated in written submissions, that a one kilo block of cocaine was found in a garden to the rear of 1 Prescott Green, and four one kilo blocks of cocaine, in three packages, were found secreted under the eaves of a shed in another adjoining garden. In the barbecue itself wrappings for these packages were discovered, with traces of cocaine from the same load. Later that day, five one kilo blocks of cocaine were found in the garage at Dillon’s home. There was strong scientific evidence to show that the drugs seized in these differing locations were prepared by the same individual or group of individuals.

Middleton was interviewed and made no comment. Middleton’s defence at trial was that he had been approached by De La Rue to go to Hangar Lane to pick up a box of counterfeit clothing. After doing so, he returned to his home with De La Rue, where they were joined by Millard.

He discovered that there was no milk to make tea, and therefore he went round the corner to the home of his partner’s grandmother. He then became aware of police activity in his home, and was unable to return there although he did try to telephone. Eventually he went into the grandmother’s garden, where he was arrested as he stood on the fence to see what was going on at his own house. He had not been hiding cocaine. He denied that the mobile telephones found in the kitchen of his home belonged to him. He had made no comment in interview as a result of advice from his solicitor.

Millard was arrested and interviewed. The details of his answers in interview need no elaboration. His activities were not creditable, but he was not involved in the transactions which gave rise to this conviction. For present purposes the essential, and simple point, was that he said in that interview that shortly before the police arrived in Middleton’s home, he was there with Middleton in the kitchen. In his evidence at trial, Millard told the jury that he had been dealing in a number of different businesses, some of which were unlawful. He was involved in dealing with counterfeit clothing, that is selling as designer goods, goods which were not genuine, and also cigarette smuggling. He accepted that he would have been willing to involve himself in cannabis smuggling. This explained some of the many telephone calls linked to him and his mobile telephone. He was not involved in the importation of cocaine. When he went to Middleton’s home he was horrified to discover wodges of cocaine, rather than the money which would have been the proceeds of different unlawful activity.

When Millard was cross-examined on Middleton’s behalf, he agreed that his answers in interview were wrong, and that at the relevant time Middleton was out of the kitchen, getting milk in order to make some tea.

The undisputed evidence of what was found in or near Middleton’s home, its link with cocaine which had been apparently placed in the car carrying Millard, Millard’s presence at Middleton’s home at this particular time on this particular date, together with the evidence of telephone communications and other activities in the days leading up to the finding of the cocaine, all provided a very powerful case against both appellants, which this brief summary may not adequately convey. The burden of proof did not, of course, shift to them but unexplained, it was open to the jury to draw very powerful inferences against them both from the undisputed primary facts.

The Crown reduced a vast amount of the observation evidence, into an Observation Schedule, which together with factual admissions made on behalf of the appellants, and a chronological list of events, effectively constituted the Prosecution case. There was virtually no challenge relating to any of the matters set out in the Observation Schedule, in which the Crown’s case of movements and communications was encapsulated. However various matters elicited on Millard’s behalf in cross-examination, relating to additional observations, were reduced into a separate schedule, and also placed before the jury.

Apart from a discrete point relating to Millard’s police interview to which we shall return, the essential submission argued on behalf of both appellants is directed at the structure of the summing up. As we shall see, this summing up did not follow what is now regarded as the conventional form. No-one suggested that the conventional form is mandatory. Indeed we emphasise that it is an elementary principle that the structure of the summing up in each trial must be left to what is loosely described as the discretion, but is in fact the judgment of the trial judge. The decision is case specific.

Subject to that overriding principle, our attention was drawn, and indeed closely focused on the decision of this Court in R v Reeves and others, unreported, 4th December 1998, where an appeal against conviction was allowed on the basis of defects in the summing up. In that particular case the trial judge structured his summing up similarly to the way in which this summing up was structured. On behalf of the appellants particular emphasis was placed on a passage in this judgment, which reflected the observations of the Court on a lengthy quotation from the summing up itself.

The judgment returned to identify the deficiencies in the summing up, and the inappropriate consequences of what was described as the:

Neither of these passages, nor the judgment as a whole served to undermine what we have ventured to identify as the elementary principle. On proper analysis, what the Court in Reeves was seeking to identify was the cause of an inadequate and unsatisfactory summing up. The observations do not imply that a summing up structured in the way in which it was structured is open to criticism, or that the judge in an appropriate case, is not entitled to structure the summing up as the judge did in Reeves. The question for us is whether the particular summing up under consideration was complete and fair. In deciding that question we have to examine whether it tended to or might have had the effect either of suggesting the burden of proof had somehow shifted to the defendants, or indeed lacked the essential fairness and balance required of every summing up, or both.

Judge McDowall began his summing up by giving the jury the directions of law which were applicable to the cases of each defendant. He began by explaining the respective functions of the judge, counsel and jury. He did so in well-understood language. He then dealt with the burden and standard of proof, again in conventional, and clear terms, which included this passage,

Before turning to the specific facts, the judge addressed a variety of different, but general factual issues, raised before the jury by the defence. These included, comments about individuals whose names had arisen during the trial, but had not been called as witnesses: the possibility that evidence had been suppressed by some Prosecution witnesses; the way in which observations were kept by customs officials; use by Prosecution witnesses of "memory refreshers" and notebooks: and indeed, the public interest immunity process itself. Having studied the text, and recognising as we do the judge’s determination to ensure that these various issues, no doubt adroitly canvassed in the forensic argument, led to no false points being taken, we believe that his observations were fair and balanced. By way of example only, we record his final observations in relation to public interest immunity.

Having defined the offences, the judge turned to the Crown’s case. As already recorded, the case was effectively summarised in the written schedules and admissions, all of which, together with the schedule based on the answers elicited in cross-examination on behalf of the defendants were before the jury. The judge’s approach is criticised in various ways, but essentially the argument was that the summing up was deficient in the sense that the judge failed to summarise the Crown’s case, which meant that the issues for the jury were insufficiently defined. In this particular case, in our judgment, the judge was entitled to conclude that there was no need for any elaboration of the case for the Crown. Indeed we know from a short passage later in the summing up that the judge believed that the Crown’s case would be clear in the jury’s mind. So indeed it would. In any event, however, we do not accept that the judge failed to summarise the Crown’s case.

At page 18 of the summing up, when dealing with the ingredients of the offences alleged in the indictment, we find the judge explaining that the Crown’s main case related to count one –

The judge then pointed out to the jury that they could not convict any defendant unless satisfied that the defendant knew "they were involved in drugs". He reminded them that they would "have to make a finding of fact at some stage in the proceedings as to whether or not you are sure that the drugs which were seized at 1 Prescott Green, and those found in the garage of Mr Dillon’s house, were in fact part of the single consignment, because if you are not satisfied of that you would then be considering a knowing involvement of any named defendant in, if you like, to separate charges relating, as it happens, to five kilogrammes each".

He then summarised:

Going on to analyse the admissions he pointed out that there was strong support that "drug materials seized from the two locations was prepared by the same individual or group of individuals".

He explained that that was "purely physical evidence". He told the jury that they should be "looking at the picture as a whole, that is the association, the meetings, the phone calls, the defendants’ own evidence, as to whether you take a view on that."

He then reminded the jury, more than once, that in the case of any individual defendant they had to be sure that there was what he described variously as "a knowing association of any particular defendant with drugs … The Crown must prove in relation to any individual guilty knowledge. You the jury decide whether someone has that guilty knowledge or not. Is it proved that any individual is knowingly involved?"

He explained how different people might be involved differently, and at different times, ending this passage in his judgment

By way of general introduction to the issues arising from a trial which lasted something like two months, we do not think that there is the slightest possibility that the jury were not fully aware, and sufficiently reminded, of the nature of the Crown’s case, and the defendants’ essential answer to it. When the judge came to deal with the individual defendants, and their cases, he then summarised the role attributed to each by the Crown. Thus in the case of Mr Millard he pointed out that the Crown said he was "at the heart of the case". When he dealt with another defendant, Mr Dillon, he pointed out that the Crown say "that he is involved on the full scale of things, in other words that he is involved knowingly in being part of importing ten kilos … into this country. They say that this is apparent in the evidence because, they say, the drugs found in his garage are linked, as a matter of fact, to the drugs found at Prescott Green not merely by supplier but as being part of one importation, and they refer again to the other evidence, the phone calls, the associations, the trips and so forth. That is, if you like, the Crown’s contention."

When he came to deal with the case involving Middleton he pointed out that the Crown said "that he was playing a significant part in this albeit in the latter stages: trusted to collect the drugs, his home being used for the process of starting to unwrap them, if you are persuaded that drugs were expected, and also the fact obviously that, on the Crown’s case, he was running from the scene."

He did the same with the defendant, De La Rue. "The Crown was saying that he was the first choice and, say the Crown, he is involved in the full importation of ten kilos and failing that, he is plainly implicated in the drugs that were found at 1 Prescott Green, the carrying exercise, the running from the scene, any view you take about his responsibility for the drugs being where they were found and the discarding of the telephone."

We find it unnecessary to labour this point any further. And to some extent, although we have gone ahead, by referring to the way in which the judge dealt with the case of each defendant, it is now clear that the structure of the summing up was that having set the case in context, without repeating matters that were clearly before the jury, the judge decided that he should review the evidence "as it touches on the case of individual defendants". The summing up proceeded on the basis of the evidence given by and called on behalf of each defendant. In a case like this, where the Crown’s case needed no elaboration, there was an obvious logic in this approach, which we add, was consistent with the need for separate consideration to be given to the case of each defendant (which, as by their verdicts, the jury showed they did). We cannot see any prejudice to the defendants in the structure. So we must ask whether, given this structure, the end result was unbalanced and unfair.

The judge addressed first the case relating to Mr Millard, who was first on the indictment. He set out a good deal of the background evidence given by Mr Millard to the jury, the activities in which he believed he was involved, and eventually his presence and the explanation of his presence at Middleton’s house on 9th April. He referred to what were described as Mr Millard’s "interpretations, theories, comments, whatever you want to call them about what was really going on in this case", and his strong conviction that he had been

The judge then drew attention to the interviews. Millard’s own evidence was that he had lied in interview.

The judge then directed the jury in accordance with what we shall summarise as the Lucas direction on the possible significance of a lie. That was a convenient point at which to deal with the issue because one of the features of Millard’s evidence was that he was under considerable pressures.

The judge dealt with the passages of Millard’s evidence in cross-examination by counsel on behalf of the different co-accused, referring to matters on which they relied. He then referred to matters revealed in cross-examination by the Crown. He concluded this part of his summing up by reminding the jury of comments made by Millard’s counsel in his closing speech. These included suggestions that the jury should consider whether there was, what was summarised as "dirty work going on". The judge added observations of his own to put these contentions into context. Such evidence as there was about the possible role of a man called Hart, and any possible corrupt dealings involving customs and excise were drawn to the attention of the jury. In truth, however, all these matters were largely speculation: on what we know, hard evidence was in very short supply. We do not find any ground for criticism arising from this part of the case.

He drew to a conclusion by pointing out that he had spent a great deal of time dealing with Millard’s case because on anybody’s view, he was:

He ended:

We have examined the contentions advanced on Millard’s behalf by examining the summing up as whole, as well as those passages in the summing up which were directly concerned with his case. It is unnecessary to repeat the whole of those passages. In our view, the burden of proof was not, either expressly or indirectly, reversed. The jury cannot have thought, for one moment, that because the judge had structured his summing up in this way, somehow or other the burden of proof had shifted to Millard. We have examined a number of points made by Mr Edie, which he suggested merited notice in the summing up. Our conclusion is that there was no omission of any significant matter. And, so far as Millard was concerned, the summing up as a whole was balanced. The stark fact was that on the evidence, the case against him was very powerful. A fair and balanced summing up should reflect the evidence before the jury, and should not artificially seek to strengthen a weak case – whether advanced by the Crown or the defence – in order to produce a notional as opposed to actual fairness. The judge here was extremely careful to underline repeatedly that the jury had to examine all the evidence, and that if unless they were sure of guilt, Millard was entitled to be acquitted.

Accordingly, we see no ground for concluding that this conviction is other than safe.

The judge then turned to the case as it involved Dillon. Although we shall not deal with this in any detail at all, we simply note that he followed the same pattern, reminding the jury of Dillon’s evidence, what he said about his personal background, and knowledge of the other co-accused. He summarised his evidence about his meeting with Millard on 9th April, together with the car journey, and his subsequent arrest. He then reminded the jury that his evidence had not been challenged or developed by any of his co-accused, and he therefore turned to cross-examination by the Prosecution. The Crown relied on the failure of Dillon to tell interviewing officers about the matters that he had raised before the jury. So the judge directed the jury about the relevant law on this subject. Unlike Millard, this was not a question of lying during the interview: it related to silence. The direction itself is not criticised. Rightly, he reminded the jury of Dillon’s explanation for his silence.

He then reminded the jury of the submissions made on behalf of the Crown in relation to Dillon, and those made on his behalf, which included what were described as matters of "negative evidence". He then related this evidence to the counts involving Dillon.

After a short break, and interventions by counsel on the issue of burden and standard of proof (which, we must say, with deference to counsel who have not been here, appear to us from the transcript at any rate to have been quite unnecessary), on the jury’s return to court the judge repeated:

He then began by a brief summary of the Crown’s allegation against Middleton.

He summarised Middleton’s evidence, including his personal background, and knowledge, or otherwise of the remaining defendants. He described his account of events on 9th April, including the reason for his activity (counterfeit clothing) and the return to his home. He also reminded the jury, in the chronological sequence of events, of witnesses called on Middleton’s behalf. He summarised the rival contention about events at Middleton’s house, that is, Middleton’s account of what had happened, and why he was found where he was, and the Crown’s account that he was "flushed out from wherever he has been in the region of the drugs". He again reminded the jury:

He then addressed Middleton’s "no comment" interview, reminding the jury of the relevant legal principles. He then turned to "negative evidence". He drew attention to material elicited from Middleton on behalf of his co-accused, and then the cross-examination, focussing particularly on the "telephone evidence". He ended:

On Middleton’s behalf, Mr Arran pointed that at one stage of the summing up, when reminding the jury of the evidence of Mr Philips, who is a "relative" of Middleton, the judge was directing the jury to examine why this evidence, relied on by Middleton, was untrue. The judge, he said, had "put everything the wrong way round". What the judge actually did was to point out to the jury that the Crown challenged that evidence, and he identified the reasons on which that challenge was based. He reminded the jury, as he had earlier in his summing up in the context of all the evidence, that they should always consider "possible motives for someone not telling the truth." On the other hand he concluded by telling them that if they accepted the evidence of Mr Philips, then it was "of great significance on behalf of Mr Middleton. It is again an area which you, the jury, assess." There is no substance in the complaint.

Mr Arran also sought to suggest that when dealing with the case of Millard, the judge had embarked on a series of comments which had not been made by counsel for the Crown, and without giving Millard’s counsel an opportunity to deal. This submission was founded on the direction given by the judge, that, in effect, if the conviction of Millard, who was put as the leader of this group of defendants was unsafe, then it would follow that Middleton’s conviction must also fall. Although Mr Arran’s submission, in its entirety, was extremely attractive, this point seemed rather remote from his client’s case. The judge did make comments on an aspect of the evidence developed by Millard’s counsel in his closing address. He did not raise any new points: he offered the jury observations made by Millard’s counsel to them, made after counsel for the Crown had concluded his submission, for their consideration. Provided the observations were reasonable in the context, and in any event left to the evaluation of the jury, as they were, no proper criticism could be advanced and, we note, that counsel for Millard himself did not see fit to advance criticisms of the summing up on this basis.

We have studied this part of the summing up, again in relation specifically to Middleton, and then in the context of the summing up as a whole. In our judgment, the issues were made clear to the jury. The burden of proof was not reversed, whether expressly or indirectly. The judge did not misuse his summary of Middleton’s evidence to create any disproportion or unfairness in the summing up. Accordingly, the criticism of the summing up based on its structure fails.

We can now turn to the specific criticism by Middleton that the judge failed to direct the jury that the evidence of Millard’s interview with the police was not evidence against him. In the course of that interview, nothing said by Millard appeared to incriminate Middleton. By the time Millard gave evidence it was clear that his explanation of where he was when the police arrived at Middleton’s home was inconsistent with the case to be advanced by Middleton, that he had left the house to fetch some milk. When Millard gave evidence, he was cross-examined on Middleton’s behalf, and agreed that he had been wrong in his interview account, and that Middleton had indeed been absent when the police arrived, on an apparently innocent expedition. The Crown suggested that that evidence was untrue, and contradicted it on the basis of the unchallenged interview record, contending that Millard was seeking to protect Middleton by lying.

In summary therefore there were two distinct aspects to the evidence on this issue. The interview evidence was inadmissible against Middleton. If however the jury accepted that Millard was indeed lying in his evidence in order to protect Middleton, then that provided factual material for their consideration. The judge should have directed the jury to ignore Millard’s interview against Middleton. He was entitled however to explain the possible relevance and the correct approach to Millard’s evidence, if the jury concluded that he was lying in order to protect Middleton. In fact, he did neither.

Mr Arran argued that the first omission was critical to his client’s conviction. Millard’s interview undermined his explanation that he was not at the house when the police arrived. Indeed he went on to argue that the judge had implied that the jury could take account of the contents of the interview as evidence against his client. We have read the passages where the judge stated, accurately, that the Crown was "obviously suggesting" that the first account given by Millard was likely to be true. However, that must be set in the context of his very early observations to the jury, how, as a matter of common sense, any particular defendant may be concerned to "offload responsibility onto some other defendant", and the care with which they should approach such material. Later in his summing up, when dealing with an interview involving Mr Edge, the judge directed the jury, correctly, that that interview could be taken into account when considering his case, but that they "do not take it into account if there is anything arising in that, that affects anyone else’s case, because they have not had a chance to deal with it in front of you." He then referred to the opening by counsel for the Crown about the inadmissibility of such evidence. Mr Arran suggested that this direction, too, seen in the round, was inaccurate, however the judge certainly ended this passage by explaining why the evidence was not be admissible, including that the defendant in question was not present to say "hang on, that’s not right …" or "whatever else they want to say". This fairly graphic explanation to the jury why Mr Edge’s interview was not admissible against other defendants amply reinforced the essential direction on the subject.

In the result, in relation to the Millard interview as it affected the case of Middleton, we agree that there was a plain omission to give the appropriate direction. If the judge had done so, the Crown would reasonably have anticipated a further direction about Millard lying to them in this particular context. We have examined the possible effects of this omission most favourably to Middleton. We have put it in the overall context of the summing up, the evidence admissible against him as a whole, the strength of the Crown’s case based on that evidence, and the possible impact of the omission of the direction specific to Middleton’s case. We are wholly unpersuaded that the omission should lead us to doubt the safety of this conviction.

We need not trouble to deal with the summing up as it affected the remaining defendants. Nothing relevant arises in relation to these appeals, which, for the reasons we have given, must be dismissed.

This application was refused by the single judge. Now that the appeals against conviction have been dismissed, it will be renewed at some future convenient date.