A & Ors v R

The appellants were convicted of conspiracy to contravene s.170 of the Customs and Excise Management Act 1979. The case against them was not complicated. It was alleged that A had purported to sell some 74 loads of drink to customers overseas within the European Community. Alcoholic drink was removed from bonded warehouses within the United Kingdom under the pretence that they it was to be delivered to other bonded warehouses overseas and thus free from a liability to excise duty. None of the loads arrived; they were diverted for sale within the United Kingdom. False documents were prepared, designed to deceive Customs into believing that the drink had reached the designated bonded warehouses overseas.

The trial was estimated to last 4 months. It lasted 235 available sitting days, approximately 11 months. But the court sat on only 132 days and rarely did a hearing occupy a full day. All three appellants argue, with the leave of a single judge, that so lengthy and disrupted was the hearing and so inadequate the summing up that the trial was unfair and their convictions unsafe.

A and the two other appellants, Heppenstall and Potter, were alleged to have conspired with a co-defendant, Jewkes, to evade excise duty on alcoholic drink between 1^st July and 31^st December 2001. Jewkes pleaded guilty. The first appellant, A, acted as a broker, buying alcoholic drink within the United Kingdom and selling it overseas through a company called Westwood Vintners. The subject of the indictment was 74 loads, mostly spirits. Heppenstall was the haulier of most of the loads. Heppenstall sub-contracted some of the loads to Potter, a close associate. Jewkes also hauled some loads.

In order to suspend liability to duty the exporting bond or the haulier is required to carry dutiable goods under a movement guarantee. This is discharged when paperwork designed to establish carriage to a receiving bond is returned from that receiving bond. Delivery is proved by a four-part document known as an Administrative Accompanying Document, which must be stamped by the receiving bond and by the local fiscal authority. It is the return of what was known as the copy 3/AAD to the exporting bond which discharges that bond from liability. The goods must also be accompanied by the transport document, CMR, which must also be stamped by the receiving bond as proof of delivery.

The 74 loads of drink covered by the indictment ostensibly went to four countries, Belgium, Portugal, Italy and Spain. The loads were hauled out of two bonds in Essex. The documents purported to show delivery to four receiving bonds, one in each of the four countries within the Community, to be held to the account of four customers.

The unchallenged evidence showed either that the bonds within those four countries were not entitled to receive the goods or did not receive them. Further unchallenged evidence showed that such administrative accompanying documents as were returned to the exporting bond (not all were) bore false bond and fiscal authority stamps, as did the CMRs. There was direct observation evidence of one physical diversion in respect of one load.

Of the four supposed customers for the 74 loads, the customer for loads consigned to Portugal was not licensed to deal wholesale in bond alcohol and had ceased to trade, the Italian company was not trading, the Belgian company was genuine but was not engaged in the alcohol trade at all and the Spanish customer was a Belgian company who could not be traced; its name, Brainstorm, had however been used solely for the purposes of criminal activity.

The alleged trade was worth millions of pounds but A’s records showed no paperwork or correspondence with the four overseas customers. There were a few inbound faxes which were false. There were two short fax calls to Belgium, but these were to a mobile telephone number completely unconnected with the real Belgian company and two to the Italian company using two different numbers. Payment was recorded in A’s business records but was wholly in cash, in sterling and in tranches of up to £200,000. At one stage, the cash involved amounted to £1 million a week. A man named Denkmeyer, who was called as a prosecution witness, had been employed by A to collect cash from men (known as “money men”) and deliver that cash either to A’s own suppliers or pay it in to the Westwood Vintners’ bank account, after deducting £100 for himself in respect of each transaction. A had told Customs on a number of occasions that he was paid sometimes by electronic transfer or by inter-bank transfer or sometimes in cash.

The first appellant said he used only one pay-as-you-go mobile “the 885 mobile” for the purposes of this trade. He did not use the office landline or a company-registered mobile in respect of which there were full records.

The analysis of the mobile telephone the first appellant did use showed that it had been used both to make and receive calls to those who were carrying the cash. All three of the first appellant’s co-defendants had been in contact with the numbers of the “money men”. A load removed by Jewkes from the exporting bond to a customer to whom both Heppenstall and Potter were delivering was observed whilst being physically unloaded and diverted on 9^th October 2001. On 2^nd November 2001 a load being hauled by Potter, allegedly to Portugal, was seen on a lay-by to the west of London near a junction with the M25. The driver’s mobile telephone records showed fifteen contacts on that very day with one of the “money men”. A himself telephoned that driver.

The first appellant’s business had operated at a loss over the previous two years. The accounts in the year 1999-2000 showed a turnover of £915,000 and in 2000-2001 £1.6 million. But in less than half a trading year between August and December 2001 the turnover was £5.8 million.

The first appellant told a number of lies in relation to documentation, payment and haulage.

A’s defence was that although there may have been a diversion fraud he was merely an innocent dupe. Legitimate negotiations with the customers had been conducted on the 885 mobile telephone which, had the call history been available, would have shown the legitimacy of those contacts.

He had used cash because he wanted to ensure speed and believed that banking transfers would take too long. He had recorded the cash he received in his accounts. Although he accepted that the mobile telephone numbers used by the “money men” had been registered with false details he did not know that at the time. He accepted that the mobile pay-as-you-go number had been registered with false details but said he had not known that. Where his answers in interview were inconsistent with the evidence, this was only because he had forgotten the position or was confused. He called evidence to show his difficulty in comprehending and dealing with such questions. He explained the huge increase in his turnover as the consequence of the purported customer using him as an innocent means of undertaking diversion fraud.

Both Heppenstall and Potter denied being knowingly involved in any diversion. Their defence was that they had not undertaken any haulage beyond the United Kingdom but had, as is not unusual in the trade, swapped trailers so that the loads were carried overseas “by French sub-contractors”. Potter’s case as to the inadequacy of the trial process was the same as that advanced on behalf of A and Heppenstall.

The chronology is of vital importance in this appeal. It presents a dispiriting picture. The diversions took place in 2001. The appellants were arrested on 7^th February 2002 and committed to Kingston Crown Court in April 2003. A preparatory hearing was commenced before His Honour Judge Haworth, the trial judge, on 24^th October 2003 and continued on various other days. There was an interlocutory appeal before the Court of Appeal on 24^th February 2004 at which the lists of admissions prepared by the prosecution, not counsel subsequently engaged, were ruled inappropriate. There were three aborted trial dates in April 2004 and April and September 2005. In a second interlocutory appeal before the Court of Appeal on 2^nd December 2005 the Court of Appeal upheld the judge’s ruling as to the admission of documents containing hearsay.

On 5^th December 2005 the jury was empanelled and the prosecution opening started on 7^th December 2005 and was completed on 16^th December 2005. We were told that the opening did not last as long as the dates would suggest. There were interruptions. There was a break between 23^rd December 2005 and 3^rd January 2006.

The court did not sit between 7^th and 15^th January 2006. We were told that during at least part of that period the judge was required to attend the Judicial Studies Board. We cannot be prescriptive about the time which may justifiably be taken, during a trial, for a judge to attend the Judicial Studies Board; normally we would not expect a trial to be interrupted for more than one day.

We must record that on 26^th January 2006 a discussion took place as to whether the court should sit what are known as “Maxwell hours”, in other words, permitting the jury to hear evidence between 9.30 a.m. to 1.30 p.m. with legal argument thereafter. Despite fears voiced by counsel as to the danger of breaks being prolonged, the judge announced that he and the jury should hear evidence between 9.30 to 1.30 with a break, with the hope that useful work would be undertaken in the afternoon. In so ruling his attention was not drawn, nor does he seem to have been aware of the Protocol issued by the Lord Chief Justice on 22^nd March 2005, which required not only careful consideration but consultation with the Presiding judge and the suggestion that often it would only be necessary to sit one day of Maxwell hours a week, timetabled in advance (see (ix) of the Protocol).

Between 16^th January and 16^th March the court did not sit on four days. It did not sit between 21^st and 24^th March 2006, nor on 3^rd April 2006.

The court did not sit between 7^th and 28^th April, 2006. Part of the reason was the Easter break, but there was another reason which is of significance in this appeal. By this time the trial had over-run the period which the jury had been assured the trial would take. One of the jurors had booked a holiday and the judge, in the light of the over-run, allowed that juror to take the holiday. This was to set a disastrous precedent.

At about the time when the prosecution was to close its case Mr J Turner QC on behalf of A submitted to the judge that there was no case to answer. For that purpose he produced written submissions which he described as “outline” of approximately thirty pages, yet his oral submissions lasted between 8^th to 12^th May 2006 and 16^th to 23^rd May 2006 (Mr Turner’s submissions did not occupy all of those days and the court did not sit on three of the days). He told us that he did not have confidence that the judge had followed his written submissions. Whether or not that is right, it is hard to comprehend how the submissions could have taken so long. Even though they also covered the admissibility of hearsay material and some of the interviews they were dismissed in a short ruling and having regard to the strength of the prosecution case we have some difficulty in appreciating how they ever came to be advanced.

On 24^th May 2006 Mr Field QC, acting for Heppenstall, understandably applied to discharge the jury. His careful written submissions outlined the history of the case. He feared, with all too realistic a percipience, that the case might not end until September. The judge declined to discharge the jury, recording his assessment of the careful attention which it was paying to the evidence.

Between 6^th and 8^th June there was a hearing as to whether the appellant Potter was fit to stand trial. The court did not sit between 9^th and 25^th June, to allow a juror a holiday, and the hearing as to Potter’s fitness continued on 26^th June. Again, the court did not sit between 27^th June and 16^th July 2006, due to jurors’ holidays.

The fragmented nature of the trial did not stop there. A’s evidence suffered serious disruption. His case began on 17^th July 2006. During his cross-examination, because of jurors’ holidays, the court did not sit between 28th July and 10^th September 2006. His evidence continued between 11^th and 14^th September, when it concluded. But the court did not sit on 15^th and 18^th and his case ended only on 19^th September 2006.

Heppenstall’s case lasted between 20^th September and 2^nd October 2006 and Potter’s case started and finished on 2^nd October 2006.

Closing speeches took place between 3^rd and 12^th October 2006. The court did not sit on 10^th October. The summing up took place between 13^th and 16^th October 2006.

There was further significant disruption. The jury started to deliberate over a period of three days between 17^th and 19^th October 2006. There was then a 17-day break to allow for half-term holidays and a juror’s business trip between 20^th October and 5^th November 2006. The jury resumed its deliberation on 6^th November 2006 and returned verdicts of guilty on the following day. In other words, they deliberated for 5 days with a 17-day break.

The overriding requirement of a criminal trial is to ensure that the accused is fairly tried. The rules of practice are designed to achieve that result. (If authority is needed, see e.g., Lord Bingham in Randall v R [2002] 2 CR.App.R.17, 267 at page 273 paragraph 10.) That is the overriding objective of the Criminal Procedure Rules (see 1.1 of the Criminal Procedure Rules 2005 S.I.2005 No 384). This court must remind itself that its jurisdiction is limited to assessing whether the convictions are safe. Not every departure from good practice will render a trial unfair but:-

It is trite to observe that the fairness of the trial can only be assessed in the factual context of the particular case. But it is not idle to recall that the purpose of the trial process is to give the prosecution a fair opportunity to establish guilt and a fair opportunity for the defendant to advance his defence. The means by which that is achieved is by ensuring that the jury has a reasonable opportunity to retain and assess the evidence laid before it and by the judge directing the jury, fairly, as to the issues which it must determine. Since juries are not required to give reasons for their verdict, the only objective assurance that the process by which the jury has reached its conclusion is rational, lies in the fair conduct of a trial. A rational conclusion demands a fair process. A trial must be managed to enable those objectives to be achieved (see introduction to the Lord Chief Justice’s Protocol).

Thus, to deal with a case justly requires efficiency and expedition (see Criminal Procedure Rules Part 1.1(2)(e)). The right to a fair trial enshrined in Article 6 of the Convention requires not only that the trial start within a reasonable time but also that a charge is determined at a hearing within a reasonable time (see Attorney General’s Reference (No. 2) 2001 [2004] 1 Cr. App. R 25 Lord Roger at 147). That is not to say that the mere length of the trial in itself is a sufficient ground for characterising a conviction as unsafe; the important question is whether the length of the trial rendered a fair trial impossible (see R v Kellard, Dwyer and Wright [1995] 2 Criminal Appeal Reports 134). In R v Coates and Graves[2004] EWCA Crim 3049, despite a trial lasting seven months, originally estimated to take up to eight weeks, and despite the fact that one of the appellants was not concerned with the substance of the evidence which took so long to give, this court upheld the safety of the conviction. In R v Jisl [2004] EWCA Crim 696, despite an excessive cross-examination lasting forty hours Lord Justice Judge (as he then was) upheld the safety of the verdicts, reminding judges (between paragraphs 113 and 121) of the importance of case management. His observations find an echo in the subsequent Protocol.

Examination of the facts in particular cases is unlikely to illuminate the principle. It is, however, important to bear in mind that this court should not be tempted into reaching a conclusion that the appeal should be upheld for the sake of promoting effective case management in the future. The proper approach was demonstrated by Judge LJ in Jisl who made clear that his comments on active case management did not trench upon the safety of the convictions in the appeal he was hearing. The fact that Criminal Procedure Rules were broken and the Protocol disregarded are merely factors which should be taken into account in assessing the fairness of the trial. Such breaches are not themselves dispositive.

One principle is, however, of cardinal importance in assessing the fairness of the trial process. A summing-up must accurately direct the jury as to the issues of fact which it must determine (see R v Lawrence[1982] AC 510 at 519). The summing-up must:-

The chronology demonstrates that the case took far too long, that the hearing was frequently disrupted and that the periods of interruption were far too long. As Mr Field QC, counsel for Heppenstall, pointed out during his application to discharge the jury, the delays and disjointed nature of the trial were such that the evidence would have lost its immediacy and force.

Mr Grenfell QC, who has conducted this appeal on behalf of the prosecution with conspicuous moderation and clarity, sought to attribute a substantial proportion of the blame for the length of the trial at the doors of counsel for A. He suggested that the length of the trial was the consequence of unnecessary cross-examination and in particular unnecessary requirements to call witnesses whose evidence had little if anything to do with the real issues in the case. He drew attention to the fact that in refusing to discharge the jury, the judge commented that the Crown has sought to stick to its running order but:-

It is important that this court avoids too hasty an assessment of the way in which leading counsel of great experience conducted the defence. Mr J Turner QC pointed out that it is not possible to assess the propriety of his conduct fairly merely by examination of transcripts (see in particular paragraph 30 in the speech of Lord Bingham in Randall). Moreover, he complains that he was given insufficient time to meet prosecuting counsel’s criticisms.

We are not in a position to reach any fair conclusion as to whether any part of the serious disruption and delay of the trial should be laid at the door of counsel who defended A. We are simply in no position to reach any fair conclusion. The essential point is that the main cause of the delay lay in the failure of the judge to ensure that a sufficient number of hours were sat during the day in order to hear and read the evidence. Day after day the hours sat were less even than that envisaged in a Maxwell hearing. The court sat between 10.00 a.m. and 3.00 p.m. with a reduced lunch break and a short mid-morning break. But there was a failure even to comply with that regime. Even if the conduct of the defence was unnecessarily prolix it had little effect on the startling fact that out of 235 days the court sat 132 and did not sit full court days. As the trial neared the time beyond that which it was estimated to take, there was even greater necessity to ensure full sitting days were fully occupied.

Once the judge had taken the decision that he could not allow one juror a holiday without allowing the jury those holidays which they had booked, in the belief that the trial would be over, disruption was inevitable. The prosecution has not demonstrated that that delay would have been avoided had the defence for A taken up less time.

For those reasons we decline to endorse prosecuting counsel’s courteous criticism. But we do take the view that counsel’s eventual acceptance that there had been a conspiracy to divert the drink should have been made far earlier. He frankly accepted that much of his cross-examination and exploration in relation to the transport documents were designed to force the prosecution to call witnesses whom the defence could then cross-examine so as to establish that others were involved in the conspiracy. We understand the tactic; we question its legitimacy. In any event, the process should not have taken as long as it did.

Mr Turner QC points out that, had the judge thought he was taking an unnecessary amount of time, it was within his power to order him to move on. The submission that the fault lies with the judge and not counsel is unattractive. But the point has force in this respect. It is difficult for the Court of Appeal to judge the propriety of the length of time counsel for the defence took to deal with particular aspects of his defence if there is nothing to suggest that the judge thought to curtail the process. There is no record of any intervention at all. There is support for the prosecution’s complaints in the length of the submissions advanced by counsel in what we regard as a hopeless submission of no case to answer. We note that despite that reliance upon the same submissions by way of a ground of appeal, they were abandoned during the course of argument.

There was a further example of what seems to us to have been unnecessary prolixity in requiring the prosecution to call officials of mobile telephone companies and cross-examining them in order to establish that the prosecution could have obtained records earlier. The cross-examination was not conducted by leading counsel but he was responsible for it. It does not seem to have taken unnecessary length but it does seem to us to cast light on the approach counsel adopted. This court must always be aware of the difficulty independent counsel face in fulfilling their obligations to defend their client with vigour and conviction even when faced with a strong prosecution case. That, after all, is the hallmark of independent advocacy. But Criminal Procedure Rules and case management require that that contest be fought with focus and efficiency. The Protocol of the Lord Chief Justice recognises that it may not be possible to estimate with precision the length of time cross-examination will take. But we record with some dismay that when counsel for A was asked how long the cross-examination of certain witnesses would take, he declined to tell the judge. Whilst precision is not possible the judge is entitled and should require counsel to give some estimate and, absent unforeseeable events, require him to keep to that estimate. Case management cannot be impeded by the mere bland assertion of defence counsel that he will take no longer than is necessary.

Notwithstanding the length of time the case took and its disruption, we would not on that count alone have regarded the trial as so unfair as to affect the safety of the conviction. Most of the prosecution evidence consisted of documents applicable to the diverted carriage. There was no substantial dispute as to the prosecution evidence. But such delay and disruption required a careful summing-up of the issues which the jury had to determine. The summing-up in the instant case, we are sorry to record, failed to achieve the function identified in either Lawrence or Nelson. It deprived the jury of the means by which it could reach a rational conclusion.

The summing-up is not criticised in relation to its directions of law. But once the judge embarked upon the facts it failed in any satisfactory way to identify to the jury the issues which it had to decide. The judge chose to go through a number of examples of the carriage and the documents. Neither the course of the carriage nor the falsity of the documents were by that time in dispute. It is true that defence counsel had not been particularly clear in any concession that there had been a conspiracy to divert the drink but the evidence to show such diversion was not in dispute. It was therefore nothing to the point to gothrough, at considerable length, evidence relating to the carriage and the documents. Although he referred, during the course of his discussion of the prosecution evidence, to some of the points established in cross-examination, particularly in relation to the use of cash, he made no reference at any stage to any of the cross-examination.

But the strongest ground of criticism lies in the way that the judge chose to deal with the defendants’ cases. He chose to read their evidence out from his notebook in a way which wholly failed to identify the issues which they sought to advance. He summarised A’s case as follows:-

That, so far as it goes, was an accurate encapsulation of the nature of the defence. But it did scant justice to the issues which the defendants sought to raise as to why the jury might accept that they may not have known that they were involved in a conspiracy. The summing-up made no reference to the defendants’ answers or to those matters on which the prosecution relied to prove knowledge. In some way or other, the judge should have identified the key features which were contended to prove knowledge and the defendants’ responses. Mr Turner QC drew attention to the jury’s request for transcripts of all of the final submissions. We derive nothing from that request which may just as well have been the consequence of the length of his submissions.

Having regard to the length of the evidence and disruptions, the issues which they and the prosecution sought to raise, as to knowledge, required identification. Merely reading out the evidence of the two defendants who gave evidence did not satisfy that requirement. Of course judges are not required to recite the arguments advanced. But they should direct the jury as to the issues. No such direction was given in this case, despite the length of time and disruptions which had occurred.

The effect of the inadequate directions to the jury was aggravated by the substantial disruption to the jury’s consideration. Seventeen days, in the context of the disruption which had gone before and the summing-up, constituted far too long a gap between the hearing of the evidence, the arguments advanced and the jury’s conclusions. It is not possible to have any confidence that safe verdicts were reached at the conclusion of a fair process when so great an interval elapsed during the course of the jury’s deliberation.

Mr Grenfell QC drew our attention to a number of indications as to the care with which the jury approached its task and the ability it displayed to comprehend the evidence. There were a number of notes sent by the jury which demonstrated that they were paying careful attention to the detail. The jury continued to ask for information even after they started their deliberations. We have seen those notes and they do indeed demonstrate a grasp of detail. Moreover the judge recorded his observation of the care, attention and conscientiousness of this particular jury. He commented upon their admirable conduct when refusing to discharge the jury on 24^th May 2006:-

We have to comment that these observations were made more than six months before the jury returned their verdicts. The judge’s admiration of the jury was mirrored in their obvious appreciation of his courteous conduct, endorsed by all counsel, and demonstrated in an unusual letter they wrote which, in fairness to the judge, we ought to record:-

The assessment of the fairness of the trial cannot however depend on the judge’s assessment of their approach during the trial or, indeed, the attitude of the jurors after it. That is not to say that the judge should not, as one of his important functions, assess how well the jury are absorbing the evidence. He was entitled to take that into account in refusing to discharge it in May. But we have to reach an objective assessment based upon the length of the trial, disruptions and the extent to which the summing-up cured that which might reasonably be expected to impede the ability of the jury to retain and assess the evidence and to reach a rational conclusion.

We must bear in mind the context of this case. The prosecution evidence was hardly challenged; it demonstrated a diversion fraud. A strong prosecution case was met with only a weak response. But there were issues which the jury had to determine and we have reluctantly come to the conclusion that they were deprived of the fair opportunity to reach rational conclusions; the aim of an expeditious and focused trial. In those circumstances we are compelled to the conclusion that the trial process was so defective and the failure of the summing-up to cure those defects so great that the verdicts are unsafe. In those circumstances, we must allow the appeals of all three appellants. We shall hear argument as to whether a new trial should be ordered, bearing in mind that any new trial should last a very much shorter time than that taken at Kingston.