Cook v R.

The Appellant was charged with conspiring with Glen Matthews, Patrick Bryant, Robert Cook and Tony Purcell fraudulently to evade the prohibition on the importation of controlled drugs. The conspiracy related to the importation of a significant quantity of cannabis hidden in flat racks imported from Africa. Glen Matthews, said to be a principal in the conspiracy, pleaded guilty. The three others were acquitted. The jury did not reach agreement about the Appellant and his trial is due to start on Monday 23^rd January, hence the need to expedite this reserved judgment. The Appellant did not give evidence.

It is agreed that the issue which we have to resolve may be stated in the following way:

Is the prosecution entitled to allege in the Appellant’s trial that the three acquitted men are conspirators notwithstanding their acquittal?

The trial judge, HHJ Blacksell QC, answered this question in the positive and the Appellant appeals that conclusion.

We have divided this judgment in two parts. In the first part we shall consider the issue from the point of view of the appellant only. In the second part of the judgment, given by Mr Justice Hickinbottom, we consider the rights, if any, of the proposed intervenors.

We are not being asked to decide whether the jury should be told that the three men were acquitted. The trial judge expressed the view that the jury should be told. We have put on one side that view for the purposes of resolving the issue which we have to resolve and we express no views on whether the jury should be told or not. It may be that the judge will wish to reconsider the matter in the light of our decision.

Mr Christopher QC for the respondent rightly agreed at the outset of the argument that the jury would have to be directed in due course that the Appellant could only be convicted of the conspiracy if he had conspired with Glen Matthews, who, as we have said, pleaded guilty to the conspiracy.

Mr Christopher accepted that, although the Crown wished to allege that the three acquitted men were guilty of the conspiracy, the jury would need to be directed that the jury could be sure that the Appellant had conspired with Glen Matthews without reaching any definitive conclusion about the involvement in the conspiracy of all or any of the three acquitted men. We would add that, as a necessary corollary, if the jury found the Appellant guilty of conspiracy, that would necessarily mean they were satisfied that Glen Matthews was guilty of conspiracy (to which he had, of course, pleaded), but not necessarily satisfied that all or any of Patrick Bryant, Robert Cook and Tony Purcell were so guilty. This distinguishes the position in Austin& Tavakolinia [2011] EWCA Crim 345. In that case it seems to have been envisaged that Austin could have been convicted on the basis that he conspired with Everett who had been acquitted at the previous trial on the judge’s direction.

Mr Christopher then rightly accepted that the indictment, which at present lists as conspirators Glen Matthews, the Appellant and the three acquitted men, should be amended to name as conspirator only Glen Matthews, albeit making it clear that others were involved. Mr Bowers rightly did not object to that course. Combined with a direction that the Appellant could only be convicted of the conspiracy if he had conspired with Glen Matthews, the indictment would make it clear to the jury what the prosecution had to prove before the Appellant could be convicted and what they did not have to prove. That would be to the Appellant’s advantage (cf Archbold, 2012, para. 33-46).

At the trial which led to the acquittal of the three men, there were two pieces of evidence against the Appellant which the judge ruled was not evidence against the other three men. The prosecution propose to rely on both pieces at the forthcoming retrial of the Appellant.

The first piece of evidence is a Post-It note found attached to the monitor of the Appellant’s computer. The jury would be entitled, so it seems to us at this stage, to conclude that the contents of the note tended to show an involvement by the Appellant in the conspiracy. The note relates to four tonnes of something. The imported cannabis weighed in the region of four tonnes. The note also refers to what the jury could find was an agreed or projected investment in the imported cannabis or its onward distribution. The four tonnes are divided into three amounts, two of the three being described as @ 30 and one as @100. Mr Christopher is unable to give a suggested precise meaning of the note.

The other important piece of evidence against the Appellant only at the previous trial and which the prosecution propose to adduce at the forthcoming trial if the judge gives the necessary permission was the Appellant’s defence statement prepared for the previous trial. It will be matter for the judge whether he grants that permission. In that defence statement the Appellant gives a detailed explanation of the Post-It note. In outline the post it workings, so it is said, concerned a potential copper powder deal. The jury would be entitled, so it seems to us at this stage, to conclude that this explanation in the defence statement is fabricated. If that conclusion was reached then the fact of fabrication would, so it seems to us, assist the prosecution in its case that the Appellant was involved in the conspiracy.

Some members of the jury at the previous trial must have been sure that the Appellant was involved in the conspiracy, presumably with Glen Matthews, given the acquittals of the three men.

Of the three acquitted men, it is necessary at this stage to mention Tony Purcell, whose name appears (so the jury could find) on the Post-It note as an actual or potential investor. Tony Purcell was, on the prosecution’s case, also involved in a meeting and telephone calls on the day that the flat racks were delivered to Glen Matthews’ yard. The evidence of this meeting and these telephone calls must (so it appears) have been insufficient to make the jury at the previous trial sure of Tony Purcell’s guilt. Mr Christopher submits that the additional evidence of the Post-It note (not evidence against Tony Purcell at the previous trial) shows that Tony Purcell was involved in the conspiracy.

Mr Christopher accepted that, for the purposes of opening the case to the jury, it would be sufficient for his purposes to tell the jury that it was the prosecution’s case that Tony Purcell was, or probably was, involved in the conspiracy whilst reminding the jury that the issue which the jury would have to resolve was whether the Appellant had conspired with Glen Matthews. He reserved the right to go further, with the judge’s permission, should the need to do so arise.

Given the evidence of the Post-It note and of the defence statement (should they be admitted) being evidence which was not available as against Tony Purcell at the previous trial, the authorities make it clear that the prosecution would be entitled to allege that Tony Purcell was, or probably was, a conspirator and that the jury would be entitled to take into account Tony Purcell’s role (if any) in the importation when deciding whether the jury was sure that the Appellant had conspired with Glen Matthews (see e.g. Austin; see also Harbans Singh [2011] EWCA Crim 2992, which may be of relevance in the forthcoming trial should the defence take a particular course).

We turn to the other two acquitted men, Robert Cook and Patrick Bryant. Neither was mentioned in the Post-It note. It is not necessary to set out the evidence upon which the prosecution relied at the previous trial to show their guilt. It is sufficient to say that there was sufficient evidence upon which a jury could have convicted, albeit that the jury did not convict.

Mr Christopher submits that the Post-It note showing (as he alleges) that Tony Purcell was involved in the conspiracy, coupled with the defence statement, also provides further evidence against the Appellant, that Robert Cook and Patrick Bryant were involved in the conspiracy, being evidence which could not be used against them at their trial. If that is right (and we are not in a position to decide that issue), then the evidence that Robert Cook and Patrick Bryant were involved in the conspiracy would be evidence not available against them at the previous trial and thus undoubtedly entitle the prosecution to allege at the Appellant’s trial that Robert Cook and Patrick Bryant were or were probably involved in the conspiracy.

We stress that whether the three acquitted men were or were not involved in the conspiracy is not (so it seems to us) decisive on the issue of whether the Appellant conspired with Glen Matthews.

If the Post-It note coupled with the defence statement does not add to the evidence called at the previous trial that Robert Cook and Patrick Bryant were involved in the conspiracy, may the prosecution nonetheless tell the jury that it is the prosecution’s case that they were or were probably involved in the conspiracy and would the jury be entitled to take into account their probable role (if that is what the jury found) in the importation when deciding whether the jury was sure that the Appellant had conspired with Glen Matthews?

Given that the jury may have acquitted Robert Cook and Patrick Bryant only because they were not sure of guilt (and that is the question which the jury had to decide), it is our view that the prosecution would be entitled to tell the jury that it is the prosecution’s case that they were probably involved in the conspiracy and that the jury would be entitled to take into account their probable role (if that is what the jury found) in the importation when deciding whether the jury was sure that the Appellant had conspired with Glen Matthews. Such an allegation is not inconsistent with the jury’s verdict in the case of Robert Cook and Patrick Bryant. This is, of course, subject to there being sufficient evidence to entitle the jury to take into account their role in the importation when deciding whether the jury was sure that the Appellant had conspired with Glen Matthews (a matter for the judge and not for us).

The more difficult question is whether on precisely the same evidence as led to the acquittal of Robert Cook and Patrick Bryant, may the prosecution still allege that they were involved in the conspiracy and would the jury be entitled to find that they were when deciding whether they were sure that the Appellant had conspired with Glen Matthews (assuming there to be sufficient evidence to entitle the jury to take into account their role in the importation when deciding whether the jury was sure that the Appellant had conspired with Glen Matthews).

We do not need to answer this question. As made clear in Austin (para. 26), whereas there is no general bar on the prosecution alleging that an acquitted defendant is a co-conspirator, the judge must decide whether “it is unfair to the other conspirators or improper for the Crown to be able to assert that that an acquitted person was a party to the conspiracy”. See also para. 32 where the Court leaves open the question whether at the previous trial the Crown had accepted that there was no evidence against the acquitted person.

We take the view that to ensure a fair trial for the appellant, it is sufficient, in so far as Robert Cook and Patrick Bryant are concerned, for Mr Christopher to put his case no higher than that they were probably involved in the conspiracy (if that is what he chooses to do and if, in the view of the judge, there is evidence to support this allegation) and for the judge to give the appropriate directions as to how the jury should approach the issue should it be necessary to do so.

Because we have not reached precisely the same conclusions as the judge, the better course seems to us to be to allow the appeal at least in part and direct that the issue which we outlined at the beginning of this judgment be resolved in accordance with this decision.

This appeal raises a particular issue concerning the locus of an acquitted defendant to make submissions in relation to ongoing proceedings against a co-defendant.

Mr Bajwa QC for Robert Cook and Patrick Bryant submitted that in circumstances where, as here, alleged conspirators are acquitted but a co-conspirator faces a continuing trial or re-trial in which the Crown question the innocence of the acquitted conspirators by relying upon their participation in the conspiracy, then the acquitted conspirators have sufficient interest to intervene in procedural applications in those continuing proceedings.

The primary basis upon which this submission was made was the acquitted co-conspirator’s rights under Article 6(2) of the European Convention on Human Rights. That provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Mr Bajwa submitted that, so far as a continuing trial or re-trial of a co-conspirator is concerned, conspirators who have been acquitted remain “charged with a criminal offence” for the purposes of Article 6(2). Consequently, the Article 6(2) presumption (that the acquitted co-conspirators are innocent) applies in those later criminal proceedings; although the right to be presumed innocent is not an absolute right, and it is open to the State to show that, in certain circumstances, it is necessary and proportionate to override the right. That requires a court to perform an exercise balancing the rights of the individual and the interests of the State. Where co-conspirators have been acquitted, they have an obvious interest in the balancing exercise the court is required to perform. Any rights that they have cannot be invoked by the continuing defendant(s): they have to be invoked by the co-conspirators themselves. Consequently, it was submitted, the co-conspirators have a legitimate interest, and a right to be heard on the issue; and we were urged to allow Robert Cook and Patrick Bryant to intervene in this appeal.

Mr Bajwa relied upon both European Court of Human Rights and domestic authorities in support.

In Sekanina v Austria (1993) 17 EHRR 22, the applicant was arrested on suspicion of murdering his wife, but acquitted by a majority verdict of a jury. Under the relevant Austrian statutory provisions, he was entitled to compensation for the period he was on remand if the suspicion he had committed the offence that had led to his being remanded had been dispelled. The domestic Austrian courts found that he was not entitled to compensation, because they considered that there remained serious grounds for suspecting he had committed the offence despite the jury verdict. The Strasbourg Court held that the Austrian legislation and practice linked the questions of criminal responsibility and the right to compensation to such a degree that the latter could be regarded as a consequence of the former. In the circumstances, the Austrian state could not rely upon suspicion that the applicant had committed the offence in the face of the jury verdict. To do so, it held, would be incompatible with the presumption of innocence in Article 6(2), which applied throughout the proceedings against the applicant, including the ancillary compensation claim. That reasoning was followed by the Strasbourg Court in relation to the same Austrian provisions in Rushiti v Austria (Application No 28389/95, 21 March 2000).

Those decisions of the Strasburg court were considered by Field J, at first instance in the Crown Court, in R v Gibbins (21 July 2004). The case involved five defendants charged with a $80 million conspiracy to defraud investors. Following various interlocutory rulings, the prosecution announced that it did not propose to call any evidence against any defendant, other than Gibbins. Not guilty verdicts were consequently entered against Gibbins’ co-defendants. However, the prosecution then indicated an intention to proceed against Gibbins on the original count in the indictment, namely that he conspired with his four erstwhile co-defendants, all of whom remained named in the indictment. Field J allowed the co-defendants to intervene in the application, and he found that the continuing proceedings were sufficiently linked to the proceedings against the co-defendants that the co-defendants should be regarded as persons still charged with a criminal offence, despite their acquittal; and an allegation by the prosecution that the four were guilty of the original charge would be directly contrary to the presumption of their innocence. He concluded that, to allege in the trial of Gibbins that the four were guilty of the conspiracy alleged against them in the original indictment, would be to act in breach of the right conferred on each of them by Article 6(2).

Mr Bajwa stressed that, in this case, Judge Blacksell was persuaded that Robert Cook and Patrick Bryant ought to be allowed to intervene in the application before him, which is now the subject of the appeal before us.

Eloquently as these submissions were made, we are not persuaded that Robert Cook and Patrick Bryant have the right to intervene in this appeal (or, indeed, any right to have intervened in the application before Judge Blacksell), for the following reasons.

In English law, an acquittal has always had limited consequences so far as other proceedings are concerned. Therefore, whilst it has been long established that an acquittal is a bar to further prosecution for the same offence, (i) the rule against double jeopardy (now subject to Part 10 of the Criminal Justice Act 2003) extends only to further prosecutions for offences of which the accused has been acquitted (Z [2000] 2 AC 483), (ii) there is no principle of issue estoppel in criminal proceedings (DPP v Humphrys [1977] AC 1), and (iii) an acquittal of a defendant is of itself no bar to the Crown, in criminal proceedings against other conspirators, alleging that that person was a party to the conspiracy (Austin at para. 26).

In our judgment, neither Article 6(2) nor the Strasbourg cases relied upon by Mr Bajwa undermine this well-established domestic jurisprudence. So far as the terms of Article 6(2) are concerned, with respect to Field J who held otherwise in Gibbins, we do not consider that, in the ordinary course, a person can be said to remain “charged in criminal proceedings” following an unequivocal acquittal. Article 6 guarantees procedural rights which are necessarily exhausted once the relevant procedure is at an end. In respect of the cases, domestic courts are not of course bound by judgments of the Strasbourg court – Section 2 of the Human Rights Act 1998 requires a domestic court merely to “take account of” them – but in any event Sekanina and Rushiti concern specific Austrian legislation and practice where, as the Strasbourg court found, compensation for the period on remand was consequential upon an acquittal and hence ancillary to the criminal proceedings. In other words, such proceedings were effectively part of the determination of the charge against him, and consequently the guaranteed procedural rights in Article 6(2) continued to apply. These compensation proceedings are therefore similar to applications for costs, which are treated in the same way (Minelli v Switzerland (1983) 5 EHRR 554). In our view, those cases can have no application to a criminal case involving an entirely different defendant.

The judgment of this court differently constituted in Austin supports that conclusion. That case concerned a conspiracy to import drugs, there being some seven conspirators, including the appellants and a man called Everett. The judge found that Everett had no case to answer, and a verdict of not guilty was formally entered. At a later trial, the indictment alleged that the appellants and another co-defendant had conspired with Everett. The appellants were convicted. They appealed on grounds that the Crown should not have been permitted to impugn the acquittal of Everett; it was unfair to allow the Crown to allege Everett was a conspirator; and it was in breach of Everett’s Article 6(2) rights to allege in the indictment in the second trial that he was a co-conspirator as he had been acquitted.

In dismissing the appeal, with regard to Everett’s Convention rights, Thomas LJ said (at paragraph 33):

“…It seems to us this court should not be concerned with Everett’s human rights under Article 6(2) in the circumstances of this case. In our view any rights Everett may have cannot be invoked by Mr Austin or Mr Tavakolinia to prevent them being tried for criminal activity involving Everett as there is no abuse of process or unfairness in the circumstances we have described. Everett was not a party to the second trial and the Crown were not seeking to question the fact he had been acquitted in the first trial.”

Although Everett did not apply to intervene, following consideration of Gibbins, it is clear that the court did not consider his Article 6(2) rights were engaged at all.

In respect of the Article 6(2) ground, we therefore consider that Mr Bajwa’s submissions fall at the first hurdle: because, by the time of the re-trial of the Appellant, Patrick Bryant, Robert Cook and Tony Purcell did not stand “charged with a criminal offence”. There was consequently no room for the “presumption of innocence” arising from Article 6(2) upon which Mr Bajwa relied.

As an alternative to that ground of intervention, Mr Bajwa submitted that, Article 6(2) apart, it would be contrary to the public interest and would bring the administration of justice into disrepute if the Crown were now allowed to question the innocence of the acquitted co-conspirators in the re-trial of the Appellant. As such, the court ought to restrain the Crown from doing so, in accordance with its duty to protect and promote the dignity and integrity of the court process. That submission to an extent reflects the comments of Thomas LJ in Austin, in respect of general principles (at paragraph 26):

“However, the question in the subsequent trial where such an issue arises is whether it is unfair to the other conspirators or improper for the Crown to be able to assert that an acquitted person was a party to the conspiracy.”

We stress that our comments in relation to this submission are restricted to this case as it currently stands, i.e. that the Crown intend to proceed against the Appellant for conspiracy with Glen Matthews and other (unnamed) persons. On that case, to obtain the conviction of the Appellant, the prosecution does not have to prove that Patrick Bryant and/or Robert Cook and/or Tony Purcell were conspirators. In those circumstances, we do not see how allowing the Crown to pursue a case that Patrick Bryant and/or Robert Cook and/or Tony Purcell might have, or even probably were, involved in the conspiracy does anything to undermine their respective acquittals (which were based on the failure of the jury to be sure of their guilt) or is in any way unfair to those acquitted co-conspirators. As we have indicated (see paragraph 7 above), even if the Appellant were to be convicted, it would not follow that the jury were necessarily satisfied that Patrick Bryant and/or Robert Cook and/or Tony Purcell were guilty of conspiracy. That is the more so because, for the reasons we have given (see paragraphs 10 -11 above), even in respect of the parts played by these other men, the evidence available to the jury against the Appellant is different from and greater than that available against his co-conspirators at the original trial.

For those reasons, we formally refuse Mr Bajwa’s application on behalf of Patrick Bryant and Robert Cook to intervene in this appeal.