Allsopp & Ors, R v

These two grounds challenge the admissibility of the evidence of the telephone conversation between Allsopp and Kelly on 16 January 2002. The admissibility of that evidence was challenged on two bases. First, the judge was asked to exclude the evidence under section 78 Police and Criminal Evidence Act 1984; and secondly, on the ground that the evidence had been obtained by means of an unlawful interception contrary to section 1 of the Regulation of Investigatory Powers Act 2000 ( hereafter RIPA ). The judge ruled against the Appellants on each ground. Her rulings form the basis for grounds 1 and 2 of the appeals of Allsopp, Kelly and Wolf. Although these grounds are not part of the appeal of West, on his behalf, Mr Spencer Bernard submits that the exclusion of this evidence would have had such an effect on the whole case as to make his client’s conviction unsafe.

As a result of the judge’s rulings there was before the jury a transcript of the conversation which had been obtained by means of a device placed in Allsopp’s Charisma motor car. There is no dispute as to what was actually said by Allsopp and Kelly during the course of conversation. There is a dispute as to the interpretation put on the conversation by the prosecution. However, it is conceded on behalf of the appellants, that the conversation is capable of an interpretation which was very damaging to the case of Allsopp and Kelly, and Wolf as well. It is necessary for the purpose of this judgment to set out only a few excerpts from the transcript. They are as follows:

At Page 13 of the transcript

Kelly: “Hmm. Do you know what I was thinking of doing, Mike? I know people…You know that we was talking about… You know how Carlos (said to refer to Wolf) what we’re getting has been chu chu (alleged to mean cocaine) the majority of it”

Allsopp: “Aye,yeah”

Kelly: “We could do that you know”

At the first trial, the prosecution declined to disclose the nature of the device which had been placed in Allsopp’s car. However, for reasons which it is unnecessary to go into, by the start of the re-trial the following information about the device had been given to the appellants. The device was a form of mobile telephone operated through the Orange network. It transmitted messages to the police who recorded those messages. A police officer in a police station could choose when to switch the device on and off. It switched on in a similar way to a telephone connection. The police officer monitoring the device could switch on to listen to any conversation in the car. The officer could also choose whether or not to tape what he was hearing. A number of recordings were made and there was a written log of which the defence had copies showing when entries were made and when they were not made. On 16 January 2002 a police officer inserted two DAT tapes into the machine and recorded the conversation.

In respect of this device the police obtained authorisation for its use as intrusive surveillance pursuant to section 26 and section 32 of RIPA. The authorisations for this intrusive surveillance were disclosed to the defence in a redacted form. The authorisations did not disclose in full the information upon which the police relied for their suspicion of the involvement of Allsopp in serious arrestable offences. Each was counter-signed by an Interception of Communications Commissioner. The applications for a continuation of the intrusive surveillance were also before the court in suitably redacted form.

Before the judge it was argued that the appellants had insufficient information upon which to challenge the authorisations under section 78. Mr Knox, counsel for Allsopp, argued that the prosecution must disclose all the information on which it relied in order to obtain the authorisations. Without this information it was contended that the appellants could not properly challenge the good faith of the police in obtaining the appropriate authorisations. The failure by the prosecution breached the Article 6 rights of the appellants in that they were unable to have fair trial.

Mr Knox submitted that the inability of the defence to test the quality of the evidence of the information used to obtain the authorisations made it unfair for the evidence of the conversation to be placed before the jury.

The judge in her ruling referred to a number of decisions including a decision of the House of Lords and two of this Court. In ruling that the admission of this evidence would not be unfair she stated:

“Whilst it may not be fair to do so in other cases in the context of this case, I have carried out a full review of the material, as I am obliged to do under the provisions of the 1996 Act. I am satisfied that there is no material that undermines the prosecution case or assists the defence. That being so, I can see no unfairness to the defendants in admitting the evidence. Mr Knox can cross examine upon the materials he has, he can ask officers who were listening in questions in order to test the evidence and it’s context…he has sufficient material at his disposal to cross examine as to the weight to be attached to such evidence. Mr Hadrill has the material to conduct a similar exercise if he so wishes.”

The judge went on to rule that even if the device had been inserted or remained within the vehicle without lawful authority she would still have admitted the evidence in the exercise of her discretion.

Before this court, Mr Knox, supported by counsel for Kelly and Wolf, repeated the submissions, which he made to the judge. He also submitted that the defence sought to challenge the authorisations on the basis that they might have been granted on information concerning Allsopp’s suspected participation in a murder or in suspected money-laundering operations. He relied on the decision of the European Court for Human Rights (Fourth Section) in Lewis –v- The UnitedKingdom of 22 July 2003 and R –v- H [2004] 2AC 134. He submitted that the evidence of the conversation was a “determinative” factor in the case. Without it the prosecution case would be very considerably weaker. In the circumstances, this was a case which required the court to direct the prosecution that to disclose evidence of the information which supported the authorisations obtained under Part II of RIPA. In support of this submission Mr Knox relied on passages in the speech of Lord Bingham in R-v-H. In particular Mr Knox relied on Lord Bingham’s observations that the procedure approved by the Court of Appeal in R-v-Smith (Joe) [2001] 1WLR 1031 relied on by the judge in her ruling should no longer be treated as good law.

In our view this was not a case analogous to R-v-Smith (Joe). In Smith the defence sought to challenge the use of DNA evidence derived from the non-intimate sample taken from the defendant on arrest. There was no evidence before the jury to show that the police had reasonable grounds for suspecting the defendant of committing a burglary and therefore it was contended that the police were not entitled to arrest him or to take the sample. In ruling that the police had reasonable grounds for suspecting the defendant of committing the burglary the judge relied on PII material not disclosed to the defence. The Court of Appeal held that the procedure did not breach the defendant’s Convention rights. In R-v-H Lord Bingham said that the procedure did not meet the minimum standards required by the Convention and that Smith should no longer be treated as good law.

In this case the defence were supplied with the authorisations. The appellants’ Convention rights under Articles 6 and 8 were, in our judgment, protected by the RIPA statutory procedures and by the judge’s review of the PII material. As the judge pointed out the defence could cross-examine the police officers responsible for operating the device. In our judgment the suspicions referred to by Mr Knox (see paragraph 26 above) were highly speculative and would not in any event provide a valid basis for challenging the efficacy of the authorisations.

Before we turn to the second and associated ground of appeal, two further matters arise. In Allsopp’s grounds of appeal and in counsel’s skeleton argument two further matters were raised in connection with the PII material. Mr Knox contended that the prosecution had sought to suppress as much as possible about the details of the device. Whatever, might have been the position at the first trial at the outset of the second trial the defence were supplied with the details to which we have referred above. At the second trial Mr Knox sought details of the billing for the device. Initially, this was refused on the ground stated by the judge that there were none. Subsequently it was explained by the judge that the wrong question had been asked. Billing details had been in existence but by that time had been destroyed. In fact, the prosecution supplied the defence with a hand written log made by the police officers on each occasion that the device was activated and the transcripts of the product of each activation were made available to the defence. Mr Knox accepted that this complaint by the appellants was a minor matter. We agree, the provision of the log of the police officers in our judgement overcame any difficulties in this respect.

Finally, Mr Knox complained that Allsopp had never been told whether or not there was an intrusive surveillance device in his house. It was submitted that he was, for that reason, unable effectively to prove the negative, namely, that no material damaging to the defence had been unearthed by such a device. At the outset of the appeal after a short PII hearing the prosecution disclosed to the appellants that no intrusive device had ever been placed in Allsopp’s home address. In the circumstances, although we can see no reason why this information was not provided at trial, Allsopp was not in any way prejudiced by the failure of the prosecution to do so. Indeed, in some ways, Allsopp was in a better position than if the information had been provided to him. Mr Knox was able to address the jury on the basis that there might have been a device in Allsopp’s house but nothing adverse to Allsopp was disclosed. Had the information that there was no such device in his house been disclosed that point could not have been made. We regard the failure to disclose this information to Allsopp as not prejudicing the conduct of his case and possibly enabling him to make submissions, which he otherwise would not have been able to do.

Allsopp, Kelly and Wolf contend that the evidence of the conversation on 16 January 2002 was obtained by the prosecution by means of an unlawful interception contrary to section 1 of the RIPA. As such the product of the interception cannot be admitted as evidence (see s17 of RIPA). The prosecution argued that the product was not obtained by means of an unlawful interception but was obtained by means of intrusive surveillance after the proper Authorities had been granted under Part III of the Police Act 1997 and Part II of RIPA.

Section 1 of RIPA provides:

1 Unlawful interception

1)

It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of –

(a)

…

(b)

a public telecommunication system.

2)

It shall be an offence for a person-

(a)

Intentionally and without lawful authority.

(b)

…

to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system.…

3)

…

4)

…

5)

Conduct has lawful authority for the purposes of this section, if, and only if –

(a)

It is authorised by or under section 3 or 4;

(b)

…

(c)

…

and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes.”

Sub-sections (6), (7) and (8) are not material.

2 Meaning of location of “interception” etc

1)

…

2)

For the purposes of this act but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system, if, and only if, he –

(a)

so modifies or interferes with the system, or interferes with the system, or its operation,

(b)

so monitors transmission made by means of the system, or

(c)

so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system,

as to make to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.”

Sub-sections (3), (4), (5) and (6) are not material.

7)

For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.

8)

For the purposes of this section the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently.

Sub-sections (9) and (10) are not material.

Lawful interception without an interception warrant

1)

Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which, or which that person has reasonable grounds for believing, is both -

(a)

a communication sent by a person who has consented to the interception; and

(b)

a communication the intended recipient of which has so consented

2)

Conduct by any person consisting in the interception of a communication is authorised by this section if-

(a)

the communication is one sent by, or intended for, a person who has consented to the interception; and

(b)

surveillance by means of that interception has been authorised under Part II

It is not in dispute in this case that if the product, namely the telephone conversation was obtained by means of an unlawful interception the effect of section 17 prohibits its use as evidence. The argument centres on whether or not the product was obtained by means of an unlawful interception.

Mr Hadrill, counsel for Kelly, supported by counsel for Allsopp and Wolf, submitted that sub-sections (2), (7) and (8) are of wide effect. He submitted that the recording of the conversation between Allsopp and Kelly by means of this device, involved a public telecommunication system. He submitted that the conversation was a communication within the definition of “communication” in section 81 of RIPA. In the material parts it reads:

“ communication” includes-

(a)

…

(b)

anything comprising speech, music, sounds, visual images or data of any description; and

(c)

signals serving either for the impartation of anything between persons, between a person and a thing or between things or for the actuation or control of any apparatus

It is submitted that the conversation between Allsopp and Kelly is such a “communication” albeit neither of the two men had any knowledge that their conversation was being intercepted by the device. The essence of the submission is that the device in Allsopp’s car drew the conversation into the mobile telephone thus bringing it into a public telecommunication system and thereby intercepted the communication. Since neither Allsopp or Kelly consented to the interception of their communication the interception was not saved by the provisions of section 3. Counsel relied on observations of Lord Woolf in R –v- Ipswich Crown Court and the Chief Constable of SuffolkConstabulary ex parte NTL (2002) EWCA 1585 when he observed that sub-sections 2 (7) and 2 (8) are so wide as to have unintended consequences.

The judge ruling the conversation was not the product of an unlawful interception, stated;

“The communication was between Allsopp and Kelly. It was a face-to-face communication, transmitted orally and not by means of the telecommunication system. The police recorded this communication. Thus it does not fall within the act.

So far as the transmission by means of the telecommunications system is concerned, who was the sender/recipient? That was undoubtedly the police thus they could authorise themselves to tape-record that which they overheard. Accordingly, if there was an interception within the meaning of the Act the interception of their own transmission was lawful under the provisions of s3 of the Act.”

In the judgment of this court the judge’s ruling was correct and the submissions of the appellants must be rejected. The question of whether a device used by police to intercept conversations amounts to an unlawful interception has been the subject of a number of decisions of this court. The judge in her ruling referred to two of those decisions: R v Smart and Beard [2002] EWCA Crim 272 and R v Hardy and Hardy [2002] EWCA Crim 3012. In Smart and Beard the court had to deal with the admissibility of tapes of recorded conversations between Beard and a co-accused, Harris. The device was placed in Harris’ car. It is described as a listening device and it recorded Harris’ end of the conversation spoken into his mobile telephone. Beard contended that the conversation overheard by the covert device was an unlawful interception and should be excluded by reason of section 9(1) of the Interception of Communications Act 1985, the predecessor of RIPA. The court held that the evidence was admissible. Clarke LJ, giving the judgement of the court, said:

“We have reached the clear conclusion that … there was no interception of the communication within the meaning of section 1(1) of the 1985 Act. As we understand it, the listening device simply heard and recorded what Harris said into his phone. There was thus no interception of an electrical impulse or signal passing through the public telecommunication system. The situation was in essence the same as it would have been if the conversations had been heard by a policeman, say, hiding in the boot or standing on the pavement.

In these circumstances an appeal on this ground could not, in our view succeed. Mr Davies submits that this is too narrow a view of the section and that we should give it a purposive construction having regard to section 3 of the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. However, the conclusion which we have reached does not seem to us to be inconsistent with the policy or purpose of the 1985 Act and, in our judgment, it should be construed in accordance with its terms but having regard to its purpose. Moreover, we can see nothing unfair in permitting the Crown to rely upon what Harris said on the phone. In short, there was no reason to exclude the evidence under section 78 of PACE and no basis for holding that Beard did not receive a fair trial in accordance with Article 6 of the Convention”

Mr Hadrill pointed to the difference between the facts of that case where what was said to be intercepted by means of a recording device was the telephone conversation itself. He pointed to the fact that there was no evidence that the recording device was a form of mobile telephone. What was being challenged as an interception was words spoken into a mobile telephone it being contended that that was an interception of the communication through Harris’ mobile telephone.

These distinctions on the facts in our judgment are not sufficient to affect the significance of the principle which was, as the court held, that the police were doing no more than listening to a conversation as if a police officer had been present and overheard it.

In Hardy and Hardy one of the issues for the court was whether tape recordings of telephone calls between undercover police officers and the appellants were admissible in evidence. It was argued by the appellants that the evidence fell foul of section 1 of RIPA as being unlawful interceptions.

It is unnecessary to refer in detail to the judgment in Hardy and Hardy. The court held in that case that the important words in section 1 and 2 of RIPA were in section 1(1) “in the course of its transmission” and in section 2 (2) “while being transmitted”. The court held that nothing in the conversations was intercepted in the course of transmissions.

In our judgment the matter is put beyond doubt by the decision of this court in R v E [2004] EWCA Crim 1243. This decision was not before the judge. The facts are set out shortly in the judgment (see paras 5 and 7):

“5.

All that is necessary to say about the facts is this. In the course of an investigation into suspected drugs dealing on a substantial scale and as part of quite extensive observation procedures the police obtained permission under the Police Act 1997 and RIPA to place a listening device in the accused’s car .it provided recordings of words spoken in the car over two periods, one of about four weeks and the second about four days.

6…

7.The words spoken and recorded included the following. First, words spoken by the accused to other people who joined him in the car. Second, words spoken by those other people to him. Third, words spoken by the accused when in the car and using a mobile telephone. The device recorded the accused’s end of any such telephone conversations. It did not pick up any speech from whoever it was to whom the accused was speaking. Quite a substantial part of the total speech recorded in the car consisted of the accused speaking into his mobile telephone. It may be that it was approaching or as much as half of the total recorded material.

8.

It is the fact that this third category of speech was recorded by the listening device, which gives rise to the argument mounted on behalf of the accused, that all the evidence of the product of the device is inadmissible.”

After setting out the provisions of sub-section 2(2) and 2(8) Hughes J giving the judgment of the court, continued:

“The critical words are “in the course of transmission”, which, it will be seen, appear also in the offence-creating section, section 1(1). One should note also the use of the expression “whilst being transmitted” in both section 2(2) and 2(8).

20.

In our view, the natural meaning of the expression “interception” denotes some inference (interference) or abstraction of the signal, whether it is passing along wires or by wireless telegraphy, during the process of transmission. The recording of a person’s voice, independently of the fact that at the time he is using a telephone, does not become interception simply because what he says goes not only go (sic) into the recorder, but, by separate process, is transmitted by a telecommunications system. That view is consistent with the expressions contained in the Act to which we have drawn attention.

21.

Interception, moreover, as section 2(2) closely defines it, is concerned with what happens in the course of transmission by “a telecommunications system”. Section 2(1) defines a telecommunications system in the following terms;

“Any system…which exists…for the purpose of facilitating the transmission of communications by any means, involving the use of electrical or electromagnetic energy”

Thus, the system begins at point A with the conversion of sound waves from the maker of the call into electrical or electromagnetic energy.

22.

What was recorded here was what happened independently of the operation of the telecommunications system. Of course, the recordings were made, questions of milliseconds apart, at the same time as the accused’s words were being transmitted. They were not, however, recordings made in the course of transmission. What was being recorded was not the transmission but the words of the accused taken from the sound waves in the car.”

In “E” the court concluded that nothing was recorded which had passed through any telecommunications system. It is also worthy of note that there appeared to be no challenge to the admissibility of words spoken by the accused to other people in the car.

In our judgment the situation in R v E is almost precisely similar to the facts of the case before us. The conversation between Allsopp and Kelly was not passing through any telecommunications system. It was, as the judge pointed out, a face-to-face conversation between the two men. To argue, as do the appellants, that it was a communication in words between two individuals and so caught by section 81 of RIPA ignores the fact that the conversation was not in the “course of transmission”. We accept the submission made by Miss Moreland on behalf of the prosecution that the plain words of the statute require some interference in the telecommunications system. Mere eavesdropping of a conversation between one person at one end of a mobile telephone or two people face to face cannot constitute a communication in the course of transmission.

Two further points remain. Mr Bloomfield sought to rely on Part 4.32 of the Code of Practice issued under RIPA. It reads:

“The use of a surveillance device should not be ruled out simply because it may incidentally pick up one or both ends of a telephone conversation, and any such product can be treated as having been lawfully obtained. However, its use would not be appropriate where the sole purpose is to overhear speech, which at the time of monitoring is being transmitted by a telecommunications system”

Mr Bloomfield submitted that Part 4.32 is apt to describe what happened in this case. The sole purpose was to overhear speech, which at the time of monitoring had been drawn-in to the telecommunications system. He accepted that in R v E the court held that this Part of the Code went further than the law as enacted required. However, he submitted that the facts in this case are different from that in R v E.

In our judgment Part 4.32 does not affect our conclusion above. We have concluded that the conversation between Allsopp and Kelly was not one, which was drawn into the telecommunications system. In the circumstances, the speech which was overheard was not at the time being transmitted by a telecommunications system. Part 4.32 has no application to these facts.

Miss Moreland submitted that even if there had been an interception by means of the mobile telephone device it was lawful by virtue of section 3 (1) and/or section 3 (2). The judge accepted this submission. It is unnecessary for us to decide whether or not that submission is correct. Suffice it to say, on the facts of this case, we are doubtful as to whether section 3 could make lawful what was unlawful by virtue of section 1. If, as the appellants contend, the communication between Allsopp and Kelly was, contrary to our holding, a communication drawn into the telecommunications system it does not seem possible to conclude that it had been “sent by a person who has consented to the interception” (section 3 (1)(a)). Similarly it is difficult to see how the communication was “one sent by, or intended for, a person who has consented to the interception (section 3 (2)(a)). In our view the only way in which section 3 becomes applicable is if the communication being transmitted from the device to the police was itself intercepted. This is not what happened in this case.

For these reasons ground two of the appeal fails.

All the appellants are concerned in this ground. It relates to the reception of evidence given by Mr Jonathan Clarke, an expert in telecommunications. The purpose of his evidence was to inform the jury of the radius of a cell-site. At the first trial the prosecution had relied on a witness employed by one of the cell-site service providers. The evidence of that witness was that the radius of a cell-site aerial was 35 kilometres. On this basis the sender and receiver of a mobile telephone call transmitted through the cell-site could be up to 70 kilometres apart from each other. The evidence of Mr Clarke at the re-trial substantially reduced the radius of a cell-site aerial. His evidence was that the radius was only about two kilometres. The appellants contend that, due to the late disclosure of this expert evidence by the prosecution, each of them was substantially prejudiced in the presentation of their cases. It is submitted that the judge ought to have ruled this evidence inadmissible because of its late disclosure.

The factual background to this ground of appeal is as follows. After the first trial, which ended, so far as these appellants are concerned, in disagreement the judge directed that any additional evidence to be served by the prosecution should be served by 31 January 2003. This time limit was extended to 14 February 2003. The trial started on 5 March 2003. By the start of the trial the witness who had given evidence in respect of the radius of cell-site aerials by then had left the employment of the service provider. It was agreed between the prosecution and all of the appellants that another witness, Mr Lant, should be substituted for the previous witness. All parties anticipated that his evidence would be similar to the evidence given at the previous trial on the same topics. Meantime, those representing West had commissioned an expert’s report from Mr R Bell. The prosecution learnt that Mr Bell had been asked to produce a report when he contacted a police officer in the case seeking information required by him to prepare his report. On learning that West had commissioned such a report the prosecution sought a report from Mr Clarke so that it could deal with any expert evidence called on behalf of West. When it commissioned its own expert report the prosecution did not know to what area of telecommunications Mr Bell’s report would refer. The report from Mr Clarke, in the form of a letter, informed the prosecution that the radius of cell-site aerials in urban areas were often only one to two kilometres apart and in rural areas typically four/five kilometres apart. His opinion was that it was rare in the United Kingdom to find any site carrying traffic over distances greater than 10 kilometres. On receipt of this evidence Miss Moreland, sensitive to the time limits set by the judge, took the decision to stick to the 35 kilometres radius given in evidence at the first trial. Accordingly, she did not advise that Mr Clarke’s report be disclosed.

Mr Lant gave evidence towards the end of the prosecution case. It was apparent during the course of his evidence that he was quite unable to deal with questions relating to the radius of cell-site aerials. There followed discussions between all counsel and the judge, in the absence of the jury, as to what was to be done. Naturally, the judge was anxious that the jury should not be misled in any way. On 19 March 2003 the first discussion on this topic occurred. It was clear that in the discussion reference was made by the prosecution to the report of Mr Clarke. At the same time the judge was informed that Mr Bell had been instructed on behalf of West. Mr Bell’s report had been served on the prosecution some five days earlier. It is clear from the transcript of the discussion on 19 March 2003 that the judge was anxious to ensure the minimum delay of the trial and that she was “not thinking of discharging the jury, or anything of that sort”. She pointed out that it was fortuitous that West had instructed his own expert. She said that it would be perfectly proper expenditure for the defence to use Mr Bell’s expertise in any way they felt appropriate. She directed that Mr Clarke’s report be disclosed by the afternoon of Friday, 21 March 2003.

The court did not sit on 21 March but re-assembled on 24 March 2003. It would appear that the whole of that day was taken up with further discussions on the admissibility of Mr Clarke’s evidence. We have seen a transcript of those discussions. It is clear from the transcript that Mr Hadrill on behalf of Kelly and Mr Spencer Bernard on behalf of West, complained to the judge of the difficulty faced by them in dealing with Mr Clarke’s evidence. It was obvious that a reduction of the radius of a cell-site aerial from 35 kilometres to 5 kilometres could have the effect of placing their clients closer to other alleged conspirators at relevant times. Mr Hadrill told this court that he had a recollection of asking for time to deal with the matter but the judge refused.. However, the plain fact is that there is no reference on the transcripts that we have seen to counsel for any of the appellants seeking further time let alone applying for the jury to be discharged. In our judgment, the tenor of the discussion shows the judge was sympathetic to the defence being given such facilities as were necessary to take instructions from Mr Bell. Mr Bell has been described to this court, as has Mr Clarke, as one of the leading experts in the field of telecommunications. On the following day, 25 March 2003, Mr Clarke gave evidence.

The appellants submit that they were prejudiced unfairly by the admission of the evidence of Mr Clarke. It is submitted that by reason of the failure of the prosecution to disclose Mr Clarke’s report until the weekend of 22/23 March they were put in the position of being quite unable to deal with that evidence. Accordingly the convictions are thereby rendered unsafe.

In our judgment there are a number of reasons for rejecting this ground of appeal. First, we are quite satisfied that Miss Moreland cannot validly be criticised for not disclosing the report of Mr Clarke earlier. As she explained, she had taken the decision to stick to the radius of 35 kilometres given in the evidence at the previous trial. It was only when Mr Lant, in the course of his evidence, was found to be unable to deal with the questions on this topic that Mr Clarke was considered as an alternative witness on this aspect of the case. The judge, as she was entitled to do, insisted that the jury should not be misled and that there must be some evidence on the point. We can understand that at that stage the defence were collectively at some disadvantage. However, in view of the fact, that Mr Bell had already been instructed by solicitors for West it is understandable that the judge should assume that the defence could obtain sufficient evidence from him to rebut any controversial evidence given by Mr Clarke. As she understood the position Mr Bell was, at least, on the end of a telephone capable of giving instructions not only to West’s solicitors but also to solicitors for the other appellants. If this evidence was as important as the appellants suggest we are at a loss to understand why no attempt was made by the legal representatives for any appellant to obtain instructions from Mr Bell. None of the appellants was conducting a cut-throat defence. There could have been no reason why Mr Bell, assuming his evidence was favourable to the defence, could not be called on behalf of one or all of them. We find the failure by any of the legal representatives, and in particular those acting for West, to seek guidance from Mr Bell comprehensible only on the basis that his evidence was unlikely (not) to assist the appellants; and /or that the issue for which this evidence was required was not of any real significance to the defence of any of the appellants.

In respect of this last factor, we observe that the question of the radius of a cell-sit aerial was only one factor in evidence showing where and at what time any appellant was in a particular place. In our judgement of greater significance was the observation evidence of police officers as to where any appellant was at a given time. That evidence coupled with the evidence provided by the billing records showing to whom and from whom any appellant was receiving a telephone call or calls from a co-conspirator was of much greater significance. In our judgment this is demonstrated by the fact that Mr Knox on behalf of Allsopp was unable to make any submissions to us as to how his client was specifically prejudiced by the admission of the evidence of Mr Clarke. In his case the telephone evidence adduced by the prosecution was broadly accepted as accurate. For Kelly, Mr Hadrill pointed to only one date, 6 January 2002, when he suggested the evidence of Mr Clarke prejudiced his client. On that date Kelly was observed on the A1 at Wetherby at 12.36pm. There was evidence of telephone contact between him and other co-conspirators on that day connected by means of a cell-site aerial close to the M1. The fact that Mr Clarke’s evidence placed him closer to his co-conspirators than Wetherby is a small and insubstantial part of the prosecution case against him. Mr Bloomfield made no submissions to us specific to prejudice caused to Wolf.

Mr Spencer Bernard submitted that his client was prejudiced in respect of evidence relating to his client on 22 December 2001, 28 December 2001 and 6 January 2002. On each of those dates his client was placed in an area, on Mr Clarke’s evidence, closer to a co-conspirator or conspirators than would have been the case if the radius was 35 kilometres. There was no observation evidence of any kind against West. However, on each of these three dates West was some distance from his home area in North London and there was evidence of telephone contact between him and Wolf at or about the relevant times when the prosecution alleged he met co-conspirators from the north of England. There was also evidence of telephone contact between Kelly and Wolf at or about those times.

In answer to the question, was Mr Bell contacted by West’s advisors in respect of this matter, Mr Spencer Bernard said that would have been an option. Apart from a suggestion that Mr Bell might have required to see Mr Clarke’s database, no submissions were made to us which in any way suggested that it was impossible for assistance on this topic to have been obtained from Mr Bell. The only conclusion which we can reach in the light of the submissions made by Mr Spencer Bernard is that either Mr Bell was unable to give any helpful assistance or the matters raised by Mr Spencer Bernard as constituting prejudice at the time were not regarded by West or his advisors as sufficiently important for an application to be made to adjourn or discharge the jury.

We reject this ground of appeal in respect of all of the appellants.

Before Mr Clarke gave evidence, Miss Moreland informed the court that Mr Clarke objected to disclosing his database. The grounds of objection were that the database contained material which was sensitive from a commercial point of view to Mr Clarke’s business. The judge refused to direct Mr Clarke to disclose his database. The appellants argued that the refusal by Mr Clarke to disclose his database was unjustified and the judge’s decision refusing to order him to do so wrong. Mr Hadrill submitted that it was wrong in principle to commit an expert witness to conceal relevant information.

Miss Moreland submitted that the information relied on by Mr Clarke was collated from information publicly available to any expert witness instructed by an appellant. In her submissions to the judge and to us she stated that the information needed for the maps produced by Mr Clarke was information readily available from public documents and a web-site. Nothing was used which was information special to Mr Clarke.

As a matter of principle in our judgment, no witness expert or otherwise, is entitled to keep secret relevant information on the basis that it is confidential to him or his business. If it is relevant to the issues and, in the case of an expert, forms the basis or part of the basis for his opinion in our judgment it must be disclosed. However in this case the information was said to be publicly available and on the facts of this case we conclude that the judge was right to refuse permission for the defence to see Mr Clarke’s database. It would have been better if Mr Clarke had been directed to supply details of the public information upon which he relied. It may be that he did so during the course of his evidence. We have no transcript of his evidence and the summing-up makes no reference to this point. In any event, for the reasons given above in relation to ground 3 we are not persuaded that the evidence given by Mr Clarke in respect of the radius of cell-site aerials was other than a minor piece of evidence in the prosecution case against each appellant. Assuming, for these purposes, that the judge was in error in respect of this matter we are quite satisfied that it does not render the conviction of any of these appellants unsafe.

This ground of appeal applies to Wolf alone. Mr Bloomfield, on behalf of Wolf, submitted that the judge should have ruled that in so far as references were made to Wolf in the transcript of the conversation between Allsopp and Kelly on 16 January 2002 those references were inadmissible against Wolf. The judge, he submitted, was wrong to rule that these references were admissible against Wolf as statements in furtherance of the conspiracy.

The references to Wolf in that conversation are those set out above where the name Carlos or Carl appears. The prosecution alleged that the names Carlos and Carl referred to Wolf. In the reference at page 13 Mr Bloomfield submitted that this should be seen as a discussion for a future conspiracy to supply “uncut” cocaine involving Allsopp and Kelly. This was in contrast to the conspiracy alleged in the indictment, which was to supply “cut” cocaine. So far as the reference at page 39 is concerned the submission is that this was a mere narrative or description of past events. Mr Bloomfield submitted that both excerpts represent hearsay evidence as against Wolf and neither pass the relevant test for acts done in furtherance of a conspiracy.

The test of admissibility of such evidence is most conveniently set out in R v Jones & Others [1997] 2 CAR 119. The test is whether the conversation was about the operation of the conspiracy or was simply a narrative of past events or evidence of a future conspiracy not involving Wolf. In argument Mr Bloomfield conceded that it was much a question of impression.

We have no hesitation in concluding that the judge correctly ruled the evidence admissible against Wolf. In our judgment, on the assumption that the jury accepted the prosecution interpretation of the conversation, each of the passages relied upon when seen in the context of the whole conversation are clearly discussions about the progress of the conspiracy with which Wolf was charged. The fact that Allsopp and Kelly were considering ways of increasing their own profit by cutting uncut cocaine rather than purchasing cut cocaine does not mean that they were embarking on a new and different conspiracy. That distinction is wholly artificial. In her ruling the judge said that she was quite satisfied that what was being referred to in relation to Wolf was a discussion on the progress of the conspiracy and plans for the future. She ruled that it was capable of being found by the jury to be in furtherance of the conspiracy. She gave the jury what Mr Bloomfield conceded was an entirely proper direction in respect of it in her summing-up.

In our judgment this ground also fails and must be rejected.

This ground is a ground solely put forward on behalf of Wolf. It relates to the evidence of Mr James Hailes, an analyst and statistician employed by Northumbria Police. The purpose of his evidence was to link two disputed mobile telephone numbers to Wolf. The disputed telephone numbers, using the last four digits, were 5964 and 8651. Mr Hailes made a comparison of the pattern of calls between 4886, a known Wolf number, and 8651 a disputed number. He conducted the same exercise in respect of 4886, a known Wolf number and 5964, a disputed Wolf number. The comparison demonstrated a commonality i.e. a shared call destination to the extent of 55% in the case of 8651 and 35% for 5964. Mr Hailes expressed the opinion that such a high percentage of calls to the same person or destination, common to both mobile telephones, indicated not merely different users with the same circle of contacts, but the same user, using the two different telephones. Further, Miss Moreland pointed out that on the diagrams produced by Mr Hailes the disputed telephone numbers showed calls to both Kelly and West. Similar exercises were carried out in respect of other appellants and the prosecution contend that this evidence was relevant and helpful as its effect was to achieve admissions from other appellants as to their use of mobile telephones, which they had initially disputed.

The submission made on behalf of Wolf is that Mr Hailes’ evidence as to commonality is not expert evidence and was not admissible as such. Mr Bloomfield argued that by admitting it, it was elevated to a status, which was disproportionate to its importance and gave it specious authenticity cloaked as it was by the description of expert evidence. In short, his submission was that Mr Hailes was giving evidence about an exercise which could have been carried out by any layman. The choice of the top twenty numbers was entirely arbitrary. In cross-examination Mr Bloomfield demonstrated that if the top ten numbers were taken commonality was reduced to 20% for 8651 and 10% for 5964. The arbitrary nature of the exercise carried out by Mr Hailes was, submitted Mr Bloomfield, well outside the parameters of expert evidence.

The judge found that Mr Hailes was an expert in the field of statistics. We were informed by Miss Moreland that he was employed by the Northumbria Police for the purpose of carrying out a statistical analysis in a number of different situations. Miss Moreland accepted that it might have been possible for counsel to take the raw data provided by the billing records and make some similar statistical comparisons. However, she pointed out that it required the experience of a statistician to collect and collate the mass of material in order to start to form a judgment on what conclusions might be gleaned from it. Further, producing this information and conclusions through the medium of a witness gave the defence an opportunity to challenge by cross-examination that which could not have been the subject of cross–examination if produced by counsel. She submitted that this was a much fairer way of placing the material before the jury.

In our judgment the judge was right to admit the evidence of Mr Hailes on the basis that it was expert evidence. She noted that the hypothesis upon which Mr Hailes worked was one which had been used over a number of years although it had now become his own because of the manner in which he performed it. In her view Mr Hailes was using his expertise as an analyst and statistician when he carried out the task. A jury would need instruction or experience in analysis or statistics before being able to carry out the commonality exercise themselves.

Like the judge, we conclude that Mr Hailes’ opinion evidence was admissible as expert evidence in accordance with the principles set out in R v Bonnython 1984 38 FASR 45 (Archbold paragraph 10-65). In our view the substantial criticism to which his evidence was subjected by Mr Bloomfield in argument and in cross-examination went to the weight of the evidence given by Mr Hailes rather than to its admissibility. The question of what weight could be attached to it was one for the jury.

We reject this ground of appeal.

The final ground of appeal concerns West. It relates to lies which the prosecution alleged he told at interview. The first alleged lie was a lie about his encounter with Allsopp in the Centurion Bar at Newcastle Central Station on the day of his arrest. It was admitted by Mr Spencer Bernard on his behalf that this was a lie. No complaint is made about the judge’s direction in respect of this lie.

Before speeches and summing-up, in a discussion with counsel about legal directions, the judge indicated to Mr Spencer Bernard that she would give a Lucas direction in respect of that lie. However, when giving the Lucas direction she coupled with it a further alleged lie. The further lie was in connection with West’s knowledge of Wolf. At interview West denied knowledge of Carl Wolf. The prosecution alleged that this was a lie. Although this lie did not feature in the discussion between the judge and counsel, in her summing up the judge posed the question “why did he deny knowing Carl Wolf?” She repeated the Lucas direction.

In the next break Mr Spencer Bernard raised this matter with the judge. His complaint was that if he had known she was going to give a Lucas direction in respect of this alleged lie he would have addressed the jury about it. The judge was fulsome in her apology to Mr Spencer Bernard and indicated that she would correct any adverse impression given by her in respect of that matter. Before completing her summing-up she gave the following further direction to the jury in respect of that matter;

“ … you may like to take that into account in relation to his lie about Wolf, because he is in custody for 13 hours, he is asked if he knows someone who is his friend. Is it just panic, “well no, I don’t know him”, in order to protect his friend, and remember what I said about that. In any event, I think there is a general point, in relation to whether or not necessarily he would have known Mr Wolf as Carl Wolf or just Carl”

The complaint made by Mr Spencer Bernard is that by giving a Lucas direction in respect of this matter the judge elevated it to a position of greater importance and significance than it merited. This was not cured by her subsequent direction.

In our judgment there is nothing in this complaint. It is clear from the discussion between the judge and counsel that the judge gave a Lucas direction in respect of this alleged lie to benefit West rather than prejudice him. It was alleged by the prosecution to be a lie and one which supported the case for the prosecution against West. In our opinion the judge was correct to include it in the Lucas direction which she gave in respect of lies told by West. There can be no possible prejudice to him from these directions.

This ground of appeal also fails and must be rejected.

It follows that for the reasons set out above the appeals against conviction of all four appellants must be dismissed.

The appellants were sentenced as we have set out at the beginning of this judgment. The submission made on behalf of all the appellants is that the sentence of 12 years in respect of Allsopp demonstrates that the judge took too high a starting-point. Mr Knox submitted on behalf of Allsopp that a calculation of the amount of cocaine supplied can properly be based on the amount and quality of the cocaine found in Hazel’s possession on his arrest. Hazel was found to be in possession of 150 grams of cocaine of 50% purity. Taking 75 grams as representing the amount of pure cocaine in his possession and multiplying that by the four occasions on which the prosecution alleged drugs had been supplied Mr Knox submitted that Allsopp should have been sentenced upon the basis that he was concerned in the supply of 300 grams of cocaine. Judged against the Aramah guidelines a sentence of 12 years was too high. Each of the other appellants supported this submission and argued that if Allsopp’s sentence was too high the sentence in respect of their clients should be proportionately reduced.

In our judgment these submissions ignore the fact that the offence of supplying cocaine in respect of each of these appellants was one of conspiracy to supply drugs. It was not a single supply of cocaine of less than 500 grams. It was a conspiracy, which lasted approximately 6 months and involved a number of conspirators. In our view it represents a more serious offence than a single supply of drugs. We reject the submission that the starting-point was too high. The appeals of Allsopp, Kelly and Wolf are dismissed.

On behalf of West Mr Spencer Bernard submitted that in addition to taking too high a starting-point the judge failed to reflect the lesser part played by West in this conspiracy. He relies on the fact that West was only involved in the conspiracy from about the time of the arrest of Hazel on 29 November 2001. It follows that he was involved for a shorter period of time than his co-conspirators.

In our judgment there is some force in this submission. We reject the submission in his case that the starting-point was too high but we accept that his role in the conspiracy for a shorter period of time was not adequately reflected by the judge in sentencing him. For this reason we quash the sentence of 8 years in his case and for it substitute a sentence of 7 years. To that extent his appeal against sentence is allowed.