Abbott & Ors v R.

Timothy Abbott and Tony Singh Hare renew their applications for leave to appeal against conviction and sentence. Jaswinder Singh Nain has abandoned his application for leave to appeal against conviction but maintains his application in relation to sentence. Noble and Amarjit Singh (otherwise Johal) seek leave to appeal against sentence.

The proceedings took place at the Crown Court at Nottingham before His Honour Judge Wide QC. The trial of Abbott, Hare, Noble, Gill, Jagpal and Singh Nain began in September 2002. On the 8^th November 2002 Abbott was convicted on count 1, a conspiracy to supply Class A drugs, count 2, a conspiracy to supply Class B drugs and count 4, a separate conspiracy to supply Class A drugs. He was acquitted on count 3, another discrete conspiracy to supply Class A drugs. On the same day Hare was convicted on all four counts and Noble on count 4. Gill was convicted on count 4 on 11^th November 2002. Jagpal was acquitted. On the 11^th November 2002 Singh Nain was convicted on count 1 and acquitted on count 2.

Johal had pleaded guilty to counts 1 and 5 on 6^th September 2002 which was before the Jury were sworn. Count 5 charged him alone with acts tending to and intended to pervert the course of justice.

Sentence was adjourned for reports to be prepared and for Drug Trafficking Act enquiries to be made.

On the 25^th April 2003 the Applicants were sentenced as follows:

Various orders were made under the Drug Trafficking Act and under the Misuse of Drugs Act. No application is made in respect of those orders. We do not recite them here.

Other defendants were dealt with as follows:

We do not intend to rehearse the facts in every detail. The prosecution’s case was that Hare and Johal were at the centre of a well organised conspiracy to supply substantial quantities of Class A and Class B drugs. Those allegations were reflected in counts 1 and 2 of the indictment.

Whiley, Abbott and Nain were employees of the two main conspirators. The conspiracies on counts 1 and 2 were pleaded as occurring between the 1^st April 2000 and the 17^th October 2001. Whiley was imprisoned in January 2001 and Abbott took over his role. Industrial premises, Unit 5, 107 Lothair Road, Leicester were used for storing the drugs and preparing them for distribution. Distribution was not confined to Leicester. In December 2000 Whiley was involved in the delivery of ecstasy to Nottingham and in the delivery of ecstasy and cannabis to Scotland – that consignment was intercepted.

Counts 3 and 4 alleged discrete supplies of Class A drugs. Count 3 involved the supply of heroin to Derby. Johal, Abbott, Rai and Jagpal had been under observation. The car in which Rai and Jagpal were travelling was stopped and a bag containing 485 grams of heroin was found at Jagpal’s feet. It is significant that Abbott and Jagpal were acquitted on this count.

Count 4 involved Noble, Gill and Andrew, as well as Hare, Abbott and Johal, in the supply of heroin to Darlington. Again, the conspirators had been kept under observation. Andrew was the courier. When his car was stopped, officers found a total of 968 grams of heroin in a bag under the driver’s seat. Abbott’s fingerprints were found on the packaging.

The prosecution relied on the evidence specific to counts 3 and 4 as additional evidence on counts 1 and 2 against Hare and Abbott.

There was other surveillance evidence. There was also a substantial amount of evidence of telephone calls between the conspirators at times which the prosecution alleged were significant. The telephone evidence frequently supported the surveillance evidence.

After the arrests of the defendants (which were not simultaneous) and their remand in custody, the police obtained authority to record covertly the conversations which particular defendants had in prison with non-legal visitors. They did so and were given leave by HH Judge Wide QC to adduce some of the product in evidence. If the prosecution interpretation of those recordings was accurate, they provided cogent evidence of the guilt of Hare, Amarjit Singh, Whiley, Abbott, Jaswinder Singh and Gill. The defence objected to the admission of this evidence. The judge clearly believed that the defence accepted that what was said in these recordings amounted to confessions of guilt: when he ruled against the defendants he said so, in terms. He was not contradicted. We are told that not all counsel conceded that what was said did amount to confessional evidence. However it is described, if it was properly admitted, it provided clear evidence of participation in the various conspiracies by the speakers. It illuminated and supplemented the surveillance and telephone evidence. As regards to count 5, the recordings provided the principal evidence against Johal. He could be heard trying to organise the creation of false evidence for the purpose of his defence.

On the 7^th April 2000, Hare and Johal were stopped at the Dover-Calais Ferry terminal. They were in a car which had been reported stolen. Johal was in possession of £9,654 in cash. Hare had £237. The money was seized.

On the 7^th November 2000 Hare, Johal and Whiley were stopped at London City Airport. Each had a ticket for Antwerp. They were travelling together. Johal was carrying £38,100 in cash. Hare had £8,600 in cash. All of Johal’s money and most of Hare’s was seized.

Some of these notes were examined for traces of drugs by Ms Richards, a forensic scientist. She found that there was contamination of the banknotes with MDMA at a higher level than would be found on banknotes in general circulation and that in respect of some of the banknotes, there was contamination with heroin at a similarly high level.

On the 12^th December 2000, there was surveillance evidence which implicated Hare and Whiley in the delivery of drugs to the Punch and July Public House in Nottingham. When Police executed a search warrant there on the 15^th December 2000, a bag containing 4935 ecstasy tablets was found in the loft.

There was documentary evidence linking Johal and Singh Nain to Unit 5, Lothair Road. There was evidence that Nain had access to these premises and Whiley, Johal and latterly Abbott were observed going to and from the premises.

On the 22^nd March 2001, officers covertly entered Unit 5 and found 2 boxes containing approximately 100,000 tablets which the officers identified as ecstasy. A video recording was made of this find.

On the 28^th March 2001, a motor car driven by Singh Nain was stopped on the M1. Nain told the officers that he was Tony Hare. In the boot of the car the officers found 5.92 kilos of paracetamol powder, a substance used for cutting heroin.

On the 29^th March 2001, a second covert entry was made of Unit 5 and officers found a substantial quantity of heroin, a very large number of ecstasy tablets and eight blocks of cannabis resin. They also saw parcel tape, cling film, tin foil, scales, gloves and a knife.

On the 5^th April 2001, a search warrant was executed at that address. The vast majority of the drugs had gone but officers found numerous wrappings which bore traces of heroin, ecstasy, amphetamine and cannabis. They also found the tape, cling film, scissors and a knife. Abbott’s fingerprints were found at the premises on some of the wrappings, on a bin liner and on a plastic bag. There was other forensic evidence linking Abbott to the premises.

Between the 23^rd March and the 5^th April 2001, Unit 5 had been kept under surveillance. No officer witnessed the removal of the substantial quantity of drugs reported by the officers who made the covert entries to the premises.

The defence objected to the admission in evidence of the material obtained by the covert recording of the conversations between defendants and their non-legal visitors.

The judge held a voire-dire on this issue. He heard evidence from the authorising officers, Superintendents Small and Gargan and from Detective Sergeant Gillan. Defence counsel cross-examined each at some length. The judge accepted the truthfulness of each and found that they had acted in good faith. These findings are unimpeachable.

The procedure for covert surveillance is governed by the Regulation of Investigatory Powers Act 2000 and the Codes made there under. In this case there were two types of authorisations granted under the Act:

Under section 91(10) of the Police Act 1997, the decision of the Surveillance Commissioner cannot be the subject of appeal nor is his decision to be questioned in any court. Thus, whilst Hare had the additional protection of scrutiny by the Surveillance Commissioner, his counsel could not question the decision in court, nor challenge the validity of that authorisation.

Section 28(2) provides that authorisation shall not be given unless the authorising officer believes that authorisation is necessary on grounds falling with sub-section (3). Under sub-section 3(b) authorisation may be granted if it is necessary for the purpose of preventing or detecting crime. Sub-section 2(b) requires that the authorised surveillance be proportionate to what is sought to be achieved by carrying it out.

Authorisation under section 32 for intensive surveillance is subject to exactly the same conditions.

It is plain that a breach of the code does not of itself render the evidence inadmissible - see R v Lawrence & Others [2001] EWCA. Crim. 1829 - nor does a breach of Article 8 of the European Convention on Human Rights. They are factors which the judge will take into account when exercising his powers under section 76 and 78 of the Police and Criminal Evidence Act 1984. How much weight a proven breach will carry will depend entirely upon the nature of the breach, the circumstances in which it occurred and its effect upon the trial.

The judge found that there were some technical breaches of the appropriate procedure. However, as he also found, these breaches were not instrumental in procuring the authorisation. The authorisations would have been granted in any event.

He found that, in authorising the covert surveillance, the officers believed (a) that the authorisation was necessary for the prevention and detection of crime and (b) that it was proportionate. He then considered the application of sections 76 and 78 of the Police and Criminal Evidence Act.

On the basis that what was said amounted to confessions, it was plain that nothing had been said or done which could have rendered them unreliable. There could be no question of oppression. It was equally obvious that the admission of this evidence would not adversely affect the fairness of the proceedings. Defence lawyers could instruct experts to examine the tapes. The defence were able to call evidence both as to what was said and as to the meaning of what was said. Indeed, they did so. The defence had argued that the tapes were of such poor quality that it was difficult, if not impossible, to be sure of what was being said. It is difficult to see how that could have been a real ground for objection. A police officer had listened to the tapes and had produced transcripts. The defence could have done exactly the same. As it was, when a variation to the transcript was agreed, the corrected version was put before the jury. When there was a dispute, the jury were invited to note the competing versions. As we have said, defendants could and did give evidence as to what it was they had said and as to what was meant. We are told that in the event there was little dispute.

As regards to Article 8, the right to privacy in paragraph (1) is qualified by the public interest in the prevention of crime in paragraph (2). It has to be remembered that substantial quantities of drugs had been spirited out of Unit 5, Lothair Road.

It follows that in our judgment the judge was entirely right to admit the evidence of the tape recordings. We have dealt with this point generally. The grounds of appeal, particularly those submitted by counsel on behalf of Hare descend to the particular. It is not necessary to recite them seriatim. Some are plainly misconceived – for example it is alleged that because the judge was reluctant to conduct a voire dire, it was plain that he had already decided to admit the evidence. That as a proposition is simply untenable. The judge was rightly anxious not to lose time and so proposed that the case should be opened without reference to the covert tape recordings and that he should determine the admissibility point later. In the event he held a voire dire before the jury were sworn, he gave a considered judgment and his decision was plainly right.

It is argued that the judge was in error in ruling that the defence could not challenge the authorisation for intrusive surveillance because of section 91(10) Police Act 1997. In reality, the only basis on which this evidence could or might have been excluded was if the officers had been acting in bad faith when they made the application. As is obvious, the application under section 32, misconceived as it was, was made out of an abundance of caution – the officer was motivated by a concern not to infringe Hare’s rights (no doubt with an eye to eventual admissibility) rather than with a view to curtailing them. Further, although the decision of the Surveillance Commissioner could not be questioned, it was open to the defence to seek to persuade the court to exclude the evidence under section 76 or under section 78 of the Police and Criminal Evidence Act.

When Hare gave evidence, he asserted that a particular passage had been taken out of context and a request was made to play a further 18 minutes of the tape. The judge refused the application. No notice had been given of this request to the prosecution, and an immediate playing of the tape was not possible for logistical reasons. What happened thereafter is a matter of dispute. Mr Lynn asserts that the judge’s decision was a final decision. Mr Dickinson QC states that the judge said in plain terms that further material, if relevant, could be put before the jury. He also states that thereafter the prosecution made repeated requests of the defence lawyers acting for Hare as to what material they wanted to have played to the jury or to be put before the jury in transcript form. There was no response to these requests in respect of this material. What is plain is that Hare’s lawyer did not seek to re-open this matter with the judge nor to reach any agreement with the prosecution. Had this material been of real importance, we have no doubt further efforts would have been made to put the material before the jury. Whichever account is accurate, the omission of this material, given the overall strength of the prosecution’s case does not render these convictions unsafe.

Mr Howat, counsel for Abbott, applied to sever the trial of Hare from the trial of Abbott. That would necessarily have the consequence of severing Hare from all the other defendants. The judge refused the application. It is argued that his refusal was wrong, that the circumstances rendered Abbott’s trial unfair and, consequently, his conviction unsafe.

Hare, Abbott and Nairn shared the same defence to the extent that they each alleged that what they were doing (and had been observed doing) was participating in a credit card fraud. The premises at Unit 5, Lothair Road were used by them for that conspiracy and not for the storage and preparation of drugs. Over and above that, Hare alleged that DC Wenlock had tried to recruit him as an informer. Hare had rebuffed this approach. To avenge this slight, DC Wenlock was alleged to have framed Hare for the drugs conspiracies. He was alleged to have suppressed evidence which would have supported Hare’s case that he was involved solely in a credit card fraud. As the judge noted, Hare was unable to identify any such evidence. Both DC Wenlock and DI Riley, the officer in charge of the investigation were cross-examined at length by Mr Lynn in an endeavour to support Hare’s case. This necessarily involved the jury hearing a good deal of material which would have been otherwise inadmissible – evidence of the belief of the officers about particular matters and evidence of allegations based not on evidence but on information received. Mention was made of assassinations, guns, arson and criminal associates of Hare. The integrity of both officers was attacked.

On the 1^st October Mr Lynn abandoned the attack against DI Riley. He said:

“Having heard the evidence of DI Riley, Hare would like to confine his complaint to the behaviour of DC Wenlock. The allegation (that of ill-will) in his paragraph 1.4 of the defence statement of 26^th April 2003 is not sustainable against DI Riley”.

It was subsequent to this change of direction that Mr Howat made his applications.

Mr Howat’s submission before us has its basis in the long term association between Abbott and Hare. He argues that, given that association, the jury would necessarily have taken into account against Abbott this material which was, at least as far as Abbott was concerned, inadmissible and prejudicial. Mr Howat argues that there is a real possibility that Abbott’s convictions were the product of guilt by association.

In our judgment, the judge was right to refuse the application to sever. In reality many trials involving numbers of defendants involve the jury hearing evidence admissible and relevant in the case of one defendant but inadmissible and prejudicial as regards another defendant. That is dealt with by proper directions. Here, the judge told the jury that these matters were totally irrelevant to the other defendants and that they must ignore them when considering the case for or against the others.

That the jury followed the judge’s directions is illustrated by the pattern of verdicts. Nain was acquitted on count 2, Abbott on count 3.

Further, the prosecution had made an admission that the other defendants came to the attention of the police as a result of events which occurred in 2001. This had the effect of distancing them from Hare’s extensive criminal background.

In any event, it must be remembered that Abbott was indeed closely associated with Hare. Further, when a number of suspects are charged with conspiracy, it is only in the most exceptional circumstances that it would be appropriate to try one separately from the others. The circumstances here were not exceptional.

The prosecution had not sought to adduce evidence of the guilty pleas of co-defendants. They did lead evidence of the activities of those defendants where it was relevant to do so. This included evidence about the activities of Rai – evidence which was obviously relevant and admissible. The jury asked what had happened to Rai. The judge did not immediately respond to the question.

On the 21^st October 2002 the court was not able to sit. A juror [juror A] who had nonetheless attended court, chose to pass the time by listening to the trial proceeding in Court 1. In that court, Mackay J was trying a number of defendants for conspiracy to murder. On of these defendants was called Johal, a name he shared with another defendant who had pleaded guilty to the charge earlier. In the absence of his jury, Mackay J was hearing an application by the prosecution to adduce evidence of the guilty please. Defence counsel opposed the application. Juror A heard all this.

On the 22^nd October Mr Dickinson QC was cross-examining Abbott about something he had been recorded as saying. He put to Abbott:

“At this time obviously you had been arrested and you were charged along with Amargit Singh Johal and David Andrew and Sukhjevean Singh Rai?”

Abbott agreed that this was so.

What the judge did was to instruct the jury that they must try the case upon the evidence and must not speculate about matters which were not in evidence. His direction was repeated in the summing up. He said:

“Deciding the case on the evidence will involve consideration of the roles of people other than those in your charge. You must not speculate about why those other people are not here in your charge and you must not speculate as to why they are not witnesses. Their roles, if any, as you decide them to be on the evidence, are something you are entitled to consider. What has happened to any of them is not relevant.”

We take the view that the refusal of the judge to discharge the jury was correct and that his direction to the jury was the appropriate way to deal with this particular problem. That Mackay J discharged his jury does not assist the applicants. Juror A could very easily have given them specific information as to the co-defendant. The coincidence of names was exactly and obviously just that.

Samantha Richards was a Forensic Scientist employed by Mass Spec Analytical Ltd (see para 17 above). Mr Lynn sought to attack both her methods and her credibility. The judge intervened and effectively curtailed Mr Lynn’s cross-examination as to both aspects.

The factual position was this: In her witness statement Ms Richards had described her methods, the instruments or machinery that she used and her conclusions. The banknotes and the instruments/machinery had all been available for the defence to inspect. No such inspection had taken place. The whole process had been video taped. When Mr Lynn sought to attack her methodology, the judge intervened to suggest that the jury might be assisted by seeing the video. Mr Lynn actually told the judge at that stage that he was not cross-examining her on the basis that the procedure had not been done properly. When Mr Lynn sought to cross-examine her on the basis of her employees’ yearly accounts about which she had said nothing save that she knew nothing of them, the judge again intervened. He was right to do so. Whilst defence counsel is entitled to test a witness’s evidence, the judge is entitled to intervene to ascertain exactly what case it is that the defence are advancing if it is not clear. When the attack is misconceived, or not evidence-based, the judge should intervene and, when necessary, curtail cross-examination.

In the course of cross-examination by counsel for Gill of DC Wardle, the suggestion was made that a man called Eddie Parsons was a drug dealer. Hare had travelled to a meeting at Fosse Park with Parsons. There was an issue as to whether this meeting was referable to drugs (the prosecution’s case) or credit card fraud (Hare’s case). Parsons had convictions for possession of class A and B drugs but none for supplying them. DS Wardle did not accept the suggestion.

Mr Lynn complained to the judge about the conduct of Gill’s counsel. Apparently the suggestion put was not based upon instructions. Gill’s counsel refused to withdraw the suggestions. The judge refused to order him to do so. The judge took the view that the best course at this stage was to say nothing about it, as to do so would simply draw attention to this episode. Mr Lynn argues that this incident damaged Hare’s case as it left the impression that Hare attended Fosse Park in company with the drug dealer. We reject this argument. It is based upon the false proposition that a jury cannot distinguish between a question, which is not evidence, and an answer which is. In his summing up the judge told the jury what must have been self evident. “Matters put by counsel are not evidence. Unless a suggestion put by counsel was accepted by the witness or is supported by other evidence you must ignore it”.

Gill was running a “cut throat” defence, seeking to blame, inter alia, Hare. In his closing speech to the jury, his counsel read to the jury an excerpt of one of the covert recordings made of Hare. Having referred to the “phoney prosecutors” by which he meant the barristers acting for Abbott, Noble and Hare, he said:

“Turn to page 27 … He (Hare) is talking about his escape from a series of drug importation charges. Quote. ‘They were hoping to get me for a lot more but I … they had a big importation charge on me and I got off that. In the end they had this 1kg of cannabis charge, which Max was taking the rap for ‘cos Max was driving the car it got found in. Anyway, it didn’t go. Max slipped (?) up. In other words what they did was (inaudible) alibi (?) they locked Max up, got completely separated. I was out on bail and it all went wrong at trial, so at the trial you understand, I set him up’ end quote. Max sacrificing himself to protect Mr Hare probably for the same price.”

Mr Lynn then intervened to point out as must have been obvious to all except counsel for Gill, that the jury did not have this transcript. The jury were invited to withdraw.

The reason why the jury did not have the transcript was that the judge had ruled this passage inadmissible. It was an inexcusable error by counsel for Gill. Mr Lynn applied to discharge the jury on the basis that this attack had irreparably damaged Hare’s defence. The judge refused the application. Mr Lynn argues that he was wrong to do so. Again, it is important to look at the circumstances.

Hare had put in his character. His whole case was based upon the claim that he was running a credit card fraud (which indeed he was) and that Wenlock had distorted parts of the evidence so as to make it appear that his actions were referable to a conspiracy to supply drugs. His previous convictions included a conviction in 1988 for possession of cannabis with intent to supply for which he was sentenced to 3 years imprisonment. In addition to his previous convictions, the jury knew a good deal more to the detriment of Hare. [See para 40 above]. Given that context this additional material, in so far as the jury would have been able to digest it can legitimately be described as ‘a drop in the ocean’. In any event, immediately following his ruling not to discharge the jury, the judge directed the jury that Hare had never faced a charge of importation of cannabis, that the particular passage was wholly irrelevant and that it was incapable of lending support to the argument advanced on behalf of Gill. In our judgment it was neither desirable nor necessary to discharge the jury.

In the course of his opening remarks at the start of his final speech Mr Lynn chose to make comments about the police. His plain suggestion was that officers involved in the investigation of this case were corrupt. For example, he suggested that the police were complicit in the removal of substantial quantities of drugs from Unit 5, Lothair Road. Some of his remarks plainly reflected on the honesty of DI Riley. The judge interrupted and sent the jury to their room.

Mr Lynn complains: he argues that the Judge should not have interrupted at all but that if he had to, he should have waited for a convenient moment when his displeasure at what was being said would have been less obvious to the jury. He submits that as a consequence, there was a negative effect on his speech, on his rapport with the jury and on the quality of Hare’s defence.

The general rule is that a judge should avoid interrupting counsel’s speech unless it is necessary to do so and then, where it is necessary, if possible the interruption should be made at a convenient moment. However, circumstances may demand an immediate intervention.

We have set out the context in which the allegations of dishonesty against police officers made in paragraphs 40 and 41. The allegation of dishonesty against DI Riley had been specifically withdrawn. The allegations of dishonesty were not put to the appropriate officers.

The purpose of a final speech is to make comment on the evidence given or where appropriate on the absence of evidence. It is not an occasion to make specific allegations of corruption or dishonesty where allegations have not been canvassed with the relevant officer.

In our judgment Mr Lynn’s comments were inappropriate; the Judge’s intervention was both necessary and appropriate. The judge was bound to interrupt when he did. He could not assume that this generalised and unwarranted attack was about to end.

The judge is criticised for referring to the fact that Hare had failed to provide any documentation in support of his explanation as to his and Johal’s possession of large sums of money. It is argued that his comments effectively reversed the burden of proof. We reject this argument. The judge made it absolutely plain where the burden of proof lay and to what standard the jury had to be satisfied before they could convict. The absence of any documents was a striking feature. Hare had told the police in interview on the 9^th November 2000 that he would provide documents to prove the legitimate provenance of the £19,920. He did not do so. The judge was perfectly entitled to draw that to the attention of the jury. It was part of the evidence.

An additional ground of appeal arises from an article in a local newspaper in which DI Riley is reported as saying that a listening device had been deployed at 5 Lothair Road. In the course of the proceedings, the Crown had told the defence that no surveillance device had been installed at Unit 5. Mr Lynn, on the assumption that the newspaper report was accurate, argues that this was a material irregularity.

If this ground was to be advanced as a serious ground of appeal, there should have been an application to call fresh evidence to prove that the officer did in fact say that which is attributed to him coupled with an application for further disclosure. No such applications were made. This court does not act upon allegations whose only support is a newspaper article.

Other criticisms of the judge are advanced as grounds of appeal principally by Mr Lynn. The single judge considered and rejected them. We have considered them. We see no merit in any of them.

Taken individually or collectively none of the grounds of appeal began to persuade us that any of these convictions were unsafe. The evidence against each applicant was powerful. The criticisms of the Judge’s conduct of the trial are unfounded. The summing up as to the facts was full and fair, the directions as to law were correct and the judge provided helpful and accurate written directions for the jury. These renewed applications for leave to appeal against conviction are refused.

We have considered what may be described as the conventional grounds of appeal against sentence and are unpersuaded. However, at a late stage the applicants sought to rely upon delay as an additional ground and have referred us to R v Ashton & Others [2002] EWCA Crim 2782 and R v McCartney & Others [2003] EWCA Crim 1372.

We take the view that this ground is arguable, although the argument may be stronger for some applicants than others. We give leave to all applicants to argue it. So that sentence can be considered fully, we do not refuse leave on the conventional grounds but refer the applications to the court hearing the appeal.

The prosecution should be represented at that hearing. An agreed chronology should be produced in respect of each applicant.