King & Ors v R

The applicant Joseph King renews his applications for leave to appeal against conviction and sentence. Craig Paul Provan appeals against conviction with the leave of the single judge. We grant leave to Joseph King to appeal against conviction and henceforth shall refer to him as an appellant.

At Canterbury Crown Court, the appellants, together with two others, Samuel King and Matthew Newin, faced an indictment containing nine counts:

On 6 April 2011 Samuel King pleaded guilty to counts 1 and 2. He was found not guilty by the jury of the remaining counts faced by him. On 16 September 2011 he was sentenced to concurrent terms of 7½ years imprisonment.

On 7 February 2011 Matthew Newin pleaded guilty to counts 1, 2, 3 and 4, and on 16 September 2011 he was sentenced to 8 years imprisonment upon counts 1, 2, and 3, and 18 months imprisonment upon count 4, concurrent. On 7 February 2011 Craig Provan also pleaded guilty to count 4 in the indictment.

The trial commenced on 26 July 2011. On 15 September 2011 Joseph King was convicted upon counts 2, 3, 5, 6, 7, 8, and 9. On 16 September he was sentenced to 13 years imprisonment upon counts 2 and 3, 2 years imprisonment upon count 5, and 5 years imprisonment upon counts 6, 7, 8 and 9. The sentences were ordered to run concurrently save that the sentence upon count 6 was to be served consecutively, making 18 years imprisonment in all. The judge ordered 300 days to count for the purposes of section 240 Criminal Justice Act 2003.

Craig Provan was found guilty upon counts 2 and 3. He was sentenced to 6 years imprisonment upon each count, and 18 months imprisonment upon count 4 to which he had pleaded guilty; the sentences were ordered to be served concurrently. In his case also the judge ordered 300 days to count towards his sentence.

During the summer of 2010, three test purchase police officers, using the names Tony, Simon and Daz, operated under cover in the area of East Malling in Kent. A pattern emerged. Their first contact was with Matthew Newin with whom a deal was agreed. Samuel King would collect the drugs. Newin made the supply to the officers and received the cash. During the indictment period eleven purchases were made of cocaine, heroin and ecstasy. The officers were intent on discovering the source of the drugs. Their purchases grew in quantity and value, and they made several unsuccessful attempts to arrange a meeting with Newin’s source. An agreement was made on 1 October 2010 that Newin would supply Tony with 1 kilogram of ecstasy and 4½ ozs of heroin. In return Tony would supply 1 kilogram of skunk cannabis.

On Monday 4 October Tony, Newin and another man met at a café in Sittingbourne. They were joined by the appellant Provan. Provan was to be the purchaser of the skunk cannabis. Newin said that he would be able to supply the heroin and ecstasy within ½ an hour. Immediately after they parted Newin telephoned the appellant Joseph King who, the officers anticipated, had been Newin’s source. At 10.20 am a convoy of police vehicles entered a travellers’ site at Hoath Wood where Joseph King was the senior resident and leader of the group of residents. Provan was sitting in his van at the entrance to the site. He was arrested. Newin was standing in Joseph King’s compound talking with King. They too were arrested. A number of incriminating items were found during the subsequent search of the woods and buildings which followed, including drugs, cutting agent, firearms and £36,000 in cash.

Two mobile phones were recovered from Joseph King which were subsequently linked to relevant events.

At about 11.25 am King and Newin were placed in the back of a police vehicle fitted with recording equipment parked in Mr King’s compound. During the following 6 minutes they spoke together in a Romany dialect called Rokker. Both of them made remarks which implicated them in the supply of drugs. King reminded Newin that he had warned Newin that Tony was a police officer. Newin reassured King that Tony did not have King’s telephone number. They discussed a cover story which both would give to the police, namely that Newin had arrived at Hoath Wood to buy chickens from King. King told Newin that he had £50,000 in cash in a shed on the site. As we have said, £36,000 was found.

Since Newin had pleaded guilty to the relevant counts of conspiracy the jury’s task was to decide whether they were sure that Joseph King and Craig Provan were implicated as fellow conspirators.

Joseph King relies upon the following grounds of appeal:

Craig Provan relies upon the following grounds of appeal:

Mr King was arrested at 10.20 am with his co-accused Newin. At 11.22 am and 11.25 am respectively they were placed in a police car in the compound in which Mr King’s moveable (but substantial) chalet was situated. At about 11.31 am Newin was removed and taken to a separate police vehicle. The incriminating conversation was recorded while they were together. The cars conveying King and Newin to Folkestone police station left at about the same time. King arrived in Folkestone at 12.18 pm.

Mr Sutton QC sought at trial to have the recording excluded under section 78 Police and Criminal Evidence Act 1984. It was submitted that the investigating officers acted in deliberate breach of their duty under section 30 of the Act. Section 30 applies “where a person is, at any place other than a police station (a) arrested by a constable for an offence, or (b) taken into custody by a constable after being arrested for an offence by a person other than a constable” (section 30 (1)). Other relevant provisions of section 30 are as follows:

“(1A) The person must be taken by a constable to a police station as soon as practicable after the arrest …

(10)

Nothing in sub-section (1A) or in section 30A prevents a constable delaying taking a person to a police station or releasing him on bail if the condition in sub-section (10A) is satisfied.

(10A) The condition is that the presence of the person at a place (other than a police station) is necessary in order to carry out such investigations as it is reasonable to carry out immediately.

(11)

Where there is any such delay the reasons for the delay must be recorded when the person first arrives at the police station or (as the case may be) is released on bail.”

Detective Inspector Edward Fox issued a written policy decision on 27 September 2010. In it he recorded his suspicion that Joseph King was the organiser of the drugs supplies made by Newin. He explained that his suspicion was based upon visits to Hoath Wood made by Newin before and after supply. In his written policy decision DI Fox said:

“Should he [Newin] attend Hoath Wood site a tactical team would go in shortly after and secure the scene and persons within it and arrest them on suspicion of conspiracy to supply drugs. A thorough search would take place after this … If Newin meets with an occupant of Hoath Wood both arrested persons will be placed for a period of time together in a police vehicle with recording facilities. Should there be more than two persons DS McDermott will determine who should be placed in the vehicle with Newin. If Joe King is one of those he will be the priority. They will be left unsupervised and their presence and any conversation will be recorded. No police officer will engage in any questioning of either and will not seek to promote any conversation between them.”

DI Fox proceeded to justify his decision by referring to Bailey and Smith [1993] 97 Cr App R 365 to which we shall return in a moment.

Nowhere in the written policy decision did DI Fox say anything about the section 30 duty, either by way of reminder to the officers on the ground of their duty under the section, or by way of authorising any delay pursuant to section 30(10A). The judge heard evidence in the voir dire. She was informed that about 150 police officers attended in a variety of vehicles including a bus. We have been provided with an overhead photograph of the site (taken from a helicopter to illustrate the position in which various items were later found). Assuming that the site is orientated in the photograph roughly north to south, the narrow access lane to the area enters at its north east corner. Joseph King’s moveable chalet and outbuildings are enclosed within a solid wooden panelled fence to the north east of the site. The entrance to the compound is on the right of the access lane as it enters the wooded area. The lane continues from the north east of the site in a south westerly direction until it reaches a circular area, called the “Roundel”, on which there are situated several other structures, mobile and, apparently, permanent. The area to the south of the access lane is heavily wooded. It was in this area that most of the incriminating finds were later made although some were made on the north side of the access lane, close to Mr King’s compound.

The evidence before the judge was that the vehicles arrived in convoy and left in convoy. DC Carroll gave evidence that he was aware of his duty under section 30. In his view there was no delay. The cars taking the accused away did not leave significantly later than any other. PC Azizi, who arrested Mr King, gave evidence that the sheer number of police officers and vehicles on the access lane led to something like chaos, with “officers flying everywhere”. We do not have the benefit of transcripts of the evidence given by these officers but it is not difficult to appreciate the point being made. The investigating officers were not only concerned with Mr King and Mr Newin; they were also concerned with Mr Provan, sitting in his van at the entrance to the compound, and other persons associated with other residential properties on the site some distance down the track. The officers spoke to other occupiers and determined not to arrest them. The officers then had to organise the orderly departure of both officers and vehicles which had congested the narrow access lane to and from the wood and to make arrangements for the later search. We were informed that the judge was shown a video recording of events at the site.

Having heard the evidence the judge concluded at paragraph 7E of the transcript of her ruling:

“I conclude that there was, therefore, no delay. The first defendant was taken, in my judgment, as soon as practicable in all the circumstances here to Folkestone police station, consequently, there is no breach of section 30 and there is no unfairness in the admission of the evidence. If I am wrong that there was a breach of section 30 then it was of the most minimal kind and there is no unfairness in the admission of the evidence.”

Mr Sutton QC, who represented Mr King at trial, submits that these findings were not available to the judge on the evidence. We disagree. First, there was no evidence before the judge to indicate that the investigating officers deliberately delayed for the purpose of securing the recording. The car was present throughout. King and Newin were arrested together in the absence of any other suspected conspirator, save Provan who was seated a little distance away. It is not the case that the officers had to await the arrival of the opportunity to make the recording. Second, the geography of the site and the nature of the operation were such that we see good reason for the judge to have accepted the evidence of the officers.

We have been informed that the court has not before been invited to consider a challenge to the admissibility of evidence on the ground of an alleged breach of section 30. Mr Sutton argues that by reason of the failure, as he submits, as soon as practicable after arrest, to remove King and Newin to a police station, King was deprived of the protection to which he was entitled under Code C. In particular, Mr King was not advised until his late arrival in Folkestone of the right to receive legal advice before making any statement, the right to be further cautioned, and the right to be detained in a cell on his own. No record was made, pursuant to section 30(11), of the reason for the delay in his arrival at Folkestone, and the appellant was given no opportunity to comment upon the covert recording during his interviews.

The judge concluded in the alternative that if there had been a delay it had been practicable to avoid, it was “of the most minimal kind and there was no unfairness in the admission of the evidence”. Mr Sutton submitted that the length of the delay was immaterial. A deliberate flouting of the section 30 requirement deprived the appellant King of the effective protection of Code C during a period of particular vulnerability. Mr Sutton accepted that the principles of admissibility are well settled: unlawfully obtained material, if relevant, is admissible in evidence provided that it does not render the resulting trial unfair. The employment of subterfuge by the police in the course of an investigation will not automatically render evidence obtained in consequence inadmissible. Where, however, the police have acted in such a way as to amount to an affront to public justice, an application may be made for a stay on the grounds of abuse and/or for the exclusion of evidence. Evidence obtained through the use of covert audio equipment is admissible and any infringement of a suspect’s Article 8 rights will not automatically result in the exclusion of the evidence so obtained. Breaches of the Codes of Practice made under section 58 Police and Criminal Evidence Act 1984 are relevant to the consideration of fairness. However, provided they do not prevent a fair trial such breaches are not conclusive. The issue under section 78 is whether the admission of the evidence would have such an adverse effect upon the fairness of the proceedings that the court ought not to admit it.

This court’s attention was drawn to some of the leading authorities in this area, including Jelen and Katz [1990] 90 Cr App R 456; Bailey and Smith [supra]; Roberts [1997] 1 Cr App R 217; and Grant [2005] 2 Cr App R 28. The cases in which evidence has been excluded usually involved the exposure of the accused to the risk that his right to remain silent or to respond fairly had been fundamentally undermined: see for example H [1987] Crim LR 47 (where the complainant was encouraged, after the defendant had been arrested and interviewed, to solicit admissions, covertly recorded), Mason [1988] 86 Cr App R 349 (where the defendant was deliberately misled in interview as to the strength of the evidence against him) and Roberts [supra] (where there was subversion of the defendant’s legal professional privilege).

In the present appeal Mr Sutton relied upon the observations of Auld J in Jelen and Katz for the purpose of making what he submitted was a relevant distinction between the facts of that case and the facts of this. An alleged co-conspirator was, at his request, supplied with covert recording equipment with which to record conversations implicating his co-accused who, at that stage, had been neither arrested nor interviewed. The court accepted that the subterfuge went beyond mere eavesdropping. It involved instigation by a witness acting on behalf of the police. As to the appellant’s reliance upon H [supra] Auld J said at page 464:

“The judge distinguished H on the grounds, inter alia, that there the defendant had been arrested. He had been interviewed under caution. He had asserted his innocence and had then been released pending further enquiries, and there had then been a series of recorded telephone conversations, all instigated by the complainant. It is true, as submitted by counsel for Jelen and Katzthat this case went beyond the deliberate overhearing of the defendant in conversation. It involved the instigation by Dempsey of a recorded discussion with Jelen in which he deceived Jelen. There was undoubtedly an element of entrapment. But did that make it unfair so as to require the judge, in the exercise of his discretion, to exclude the evidence? He took the view that it was not unfair, and we can see no reason to disagree with him. We should add that we have read the transcript of the conversations between Dempsey and Jelen, and we agree with the judge’s assessment that there is nothing unfair in the way in which Dempsey conducted them. It is apparent from what Jelen said, particularly in the first conversation, while on the telephone, that he was anxious to meet Dempsey to talk to him. As to the suggestion that the police were using Dempsey in this way to avoid the requirements of the Code of Practice governing them if they had chosen to question Jelen at that stage, the judge pertinently observed that Jelen had not been arrested. The provisions of the code governing the detention, treatment and questioning of persons by police officers are for the protection of those who are vulnerable because they are in the custody of the police. They are not intended to confine police investigation of crime to conduct which might be regarded as sporting to those under investigation. As to the reliance by counsel for Jelen and Katzupon H, we observe first that the decision of a judge whether or not to exclude evidence under section 78 of the 1984 Act is made as a result of the exercise by him of a discretion based upon the particular circumstances of the case and upon his assessment of the adverse effect, if any, it would have on the fairness of the proceedings. The circumstances of each case are almost always different, and judges may well take different views in the proper exercise of their discretion even where the circumstances are similar. This is not an apt field for hard case law and well-founded distinctions between cases.”

Mr Sutton relied upon this passage of Auld J’s judgment to support his argument that when the suspect is, after arrest, vulnerable, the court will be astute to prevent unfairness. He submits that not only did the officers avoid the requirements of Code C, they were also in breach of their express statutory duty. We do not consider that the distinction drawn by Mr Sutton between a breach of the Code and a breach of section 30 affects the principles upon which the court will exercise its discretion under section 78 of the 1984 Act. We readily accept that the policy behind section 30 is to bring the suspect, as soon as is practicable, within the protection of Code C. The movement of a suspect from place to place, or his prolonged detention away from a police station, delays his entitlement to the safeguards provided by Code C. We do not, however, conclude that the fact alone of a breach of section 30 places the evidence into a separate category which renders unfairness a presumption. As Auld J observed, each case must be examined on its own particular facts for an assessment of the fairness of the proceedings. In Bailey and Smith, this court (Simon Brown LJ, Popplewell and Rattee JJ) dismissed an appeal founded upon the admission in evidence of incriminating remarks covertly recorded while the accused were detained under section 128(7) Magistrates Court Act 1980. They had been interviewed under caution and maintained their silence. They were remanded at the request of the police in order that identification parades could be organised. They were placed together in a cell which was bugged. The court rejected the argument that the conduct of the police in securing the accused’s detention was unlawful and proceeded to consider the argument that they had been deliberately misled. Simon Brown LJ said at page 374:

“Mr Merrylees’ argument runs essentially as follows. These appellants had chosen to remain silent at interview. They had been charged. By virtue of paragraph C 16.5 of the Code the police were precluded from questioning them further. Yet by placing them together in a bugged cell and making them believe that they could not be overheard, they were being tricked into speaking, and indeed – because their cell was bugged – speaking to the police. For the same reason, it is submitted, that these admissions cannot possibly be regarded as voluntary. This argument we cannot accept. Of course these accused at the relevant time could not properly have been subject to further police questioning but that is not to say that they had to be protected from any opportunity to speak incriminatingly to each other if they chose to do so. Mr Merrylees’ argument in our judgment breaks down at the point where he seeks to equate voluntarily talking to each other with making involuntary statements to the police – statements made, it is said, through their co-accused acting as the police’s agent or instrument – an echo here of the arguments which failed in Jelen and Katz [supra].”

In our judgment, the deliberate flouting of a statutory duty for the purpose only of creating an opportunity for a covert recording may, depending upon the circumstances, result in the exclusion of evidence. In the present case, however, considerations material to the issue of the fairness of the proceedings include the following:

We conclude that had HHJ Williams been persuaded that a breach of section 30 Police and Criminal Evidence Act 1984 took place it is not demonstrated that she was wrong to conclude that the fairness of the proceedings was unaffected.

Each of the appellants advances grounds which concern the admission of evidence of the acts and declarations of one alleged conspirator, in furtherance of the common enterprise, in the case of another alleged conspirator. We shall therefore examine the law as it relates to such evidence generally before embarking upon a consideration of the merits of Mr King’s ground of appeal. The modern common law rule is said to be founded upon principles identified in Blake and Tye [1844] 6 QB 126 (see, for example, Davenport and Pirano [1996] 1 Cr App R 221 at page 225, per Judge J, as he then was). This court has accepted the accuracy of the law as later identified by the High Court of Australia in Tripodi v R [1961] 104 CLR 1 and in Ahern v The Queen [1988] ALR 162 (see, in particular, Gray & Liggins [1995] 2 Cr App R 100; Jones, Williams and Barham [1997] 2 Cr App R 119; Platten [2006] EWCA Crim 140 at [26]).

The trial judge’s task when considering the admissibility against the defendant of evidence of the acts and declarations of an alleged co-conspirator (or alleged joint participant in a common enterprise) is to identify whether:

As to (i) the evidence need not be conclusive. The issue whether the acts and declarations were made by a conspirator is ultimately for the jury to assess (Smart and Beard at [30]). When considering the issues (1) whether there was a conspiracy and (2) whether the actor/speaker was a conspirator, the judge and, ultimately, the jury are entitled to examine the circumstantial evidence, including the acts and declarations of the actor/speaker, not for the truth of the assertion made but for the fact that they were made. In Barham [at page 129], Kennedy LJ, giving the judgment of the court, approved the following statement from the 8^th edition of Cross and Tapper on Evidence at page 654, with the addition of the bracketed words:

“In many cases out of court assertions and actions of conspirators [or joint offenders] may be admissible as circumstantial evidence of a conspiracy [or joint offence] quite independently of reliance upon any admissions, express or implied, and so arguably outside the operation of the hearsay rule.”

See also to the same effect paragraphs 5 and 6 of the judgment of the High Court of Australia in Ahern [supra].

The rationale for requirement (ii) is said to be the implied authority of an agent to advance the cause of his principal (Ahern paras. 8 and 9). Of significance to the reliability of statements made in furtherance of a conspiracy is the likelihood that such statements are not mere narrative of past events. “Furtherance” of the conspiracy implies only the enterprise in operation (Platten at [33] – [36]).

As to requirement (iii) what is required is other “reasonable evidence” supporting the inference (or a prima facia case) that the accused was a conspirator (Barham at page 127).

Once the judge has ruled in favour of admitting the evidence under the test we have identified, it is not necessary for the judge to direct the jury to engage in the same analysis (see Platten at [25] – [27]). The judge’s summing up should deal with the evidence as it has emerged having regard to the risk of conviction by hearsay narrative only. That risk was identified in Ahern in which, at paragraph 24, the court observed:

“24.

It may be argued that there is a danger in not leaving the question of admissibility to the jury, in that the jury may see the independent evidence of participation as unconvincing and yet act upon the acts and declarations of others outside the presence of the accused. Any such danger may, however, be avoided by an appropriate direction from the trial judge. It will be proper for him to tell the jury of any shortcomings in the evidence of the acts and declarations of the others including, if it is the fact, the absence of any opportunity to cross-examine the actor or maker of the statement in question and the absence of corroborative evidence. Where it is appropriate, it will not be difficult to instruct a jury that they should not conclude that an accused is guilty merely upon the say so of another nor will that be an instruction which it is difficult to follow. A direction of that kind is likely to be far more effective in safeguarding the position of an individual accused than a direction, the evidence having been let in, which a jury could not reasonably expected to understand and apply. Moreover, any danger of the kind suggested would, in our view, be outweighed by the risk of diverting the jury’s attention from the criminal standard of proof in requiring them to apply some lesser standard to determine a preliminary question [of admissibility].” [bracketed words added].

At page 12A of the transcript of her summing up on 7 September 2011 the judge provided the jury with the following direction upon the hearsay evidence relied on by the prosecution in the case of Joseph King:

“(E)

Acts done and statements made in furtherance of a conspiracy are receivable in evidence not just against those immediately responsible for them. In this case, the prosecution seek to rely upon things said and done by Matthew Newin in respect of each of the three defendants. They rely upon the evidence of the covertly recorded conversations between Simon and Daz and Matthew Newin and between Tony and Matthew Newin. Joseph King was not present during any of those conversations … In particular, the prosecution rely on these matters … (b) The evidence at page 323 of volume 1 where the Crown allege that Matthew Newin is referring to Joseph King by saying: “he has got so much money and he’s 40, 47 years old, he has got properties and everything, he doesn’t want no other people,” and at page 309: “he ain’t going to have no phones for a couple of weeks he reckons at all. I think one of his people got nicked or something”… Before you hold this evidence or any part of it against any of the defendants, you should consider all the evidence on which the prosecution rely and all the evidence called on behalf of the defendants. You should treat this evidence with particular care for the following reasons: the defendants, to the extent that I have just outlined, were not able to confirm or deny the truth of what Matthew Newin said. Equally, they could not approve or disapprove of what he did. You should ask these questions: “am I sure (1) that the transcript of what he said is accurate? (2) that Matthew Newin in saying what he did was not maliciously or falsely involving any of the defendants when in truth that defendant was not involved?” If you are sure about all of these things then you may take what Matthew Newin said into account when you consider the case of any of the three defendants. It is for you to decide what weight, if any, to give to it. If you are not sure about any of the things above then you must ignore Matthew Newin’s words against the defendant whose case you are considering. But you could not convict any of the defendants if the sole basis for your decision was any of the statements made by Matthew Newin. You can only convict any of the defendants if all the evidence in the case, including the statements, make you sure of guilt”.

The appellant King accepts that the judge properly admitted the evidence of Newin’s remarks to Tony to which the judge referred in her oral and written direction at (E)(b), because “it was reasonably open to the interpretation that it was made in furtherance of the alleged agreement”. We observe that Newin’s description of his supplier acquired its potency from the circumstantial fact that the appellant King began to use a new mobile telephone number on 1 October 2010, the day after this conversation had taken place. It is argued, however, that it was ultimately for the jury to determine whether Newin’s remarks were made in furtherance of the conspiracy. If not, the jury could not treat them as admissible in the case of King. Mr Sutton submitted that nothing was said to the contrary by this court in Platten.

We accept that it was for the jury to resolve whether there was a conspiracy and, if so, whether Mr King was a party to it. Mr Sutton rightly points out that in Platten Waller LJ cited with approval the judgment of Kennedy LJ in Barham at pages 131 – 132. The issues raised in Barham were: (i) whether there was circumstantial evidence from which it could properly be inferred that (a) Barham was a conspirator and, accordingly, (b) hearsay references by Fry to a co-conspirator were references to Barham (see pages 124 – 125), (ii) whether the hearsay references to another person could properly be described as made in furtherance of the conspiracy (rather than as pure comment or historical narrative), and (iii) whether the judge was required to direct the jury not to convict on the hearsay evidence alone.

Mr Sutton submits that the court in Barham did not decide that the issue whether acts and declarations were made in furtherance of the common purpose was for the judge and not the jury, and the court in Platten did not or could not have resolved that it did. We do not accept these submissions. In Barham the court expressly adopted the approach of the High Court of Australia in Ahern. The question was posed in paragraph 18 of the judgment of the Court in Ahern as follows:

“18.

The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance, for the evidence of acts and declarations ought not to be admitted at all for that purpose if not basis can be shown for its admission. But controversy exists over whether, even after the evidence has been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and if there is not, they ought not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue.”

The High Court of Australia then considered the conflicting approaches of the courts in the United States, Australia, New Zealand and Canada and resolved the conflict as follows:

“22.

The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.”

The court in Barham approved this resolution of the issue but went on to accept that the particular circumstances of the case may require a warning to the jury upon the shortcomings of the evidence and a warning not to convict on hearsay narrative alone. The justification for this conclusion appears in paragraph 24 of the judgment in Ahern from which we have already quoted. While the court in Barham did not expressly decide that no direction to the jury was required specifically upon the issue whether the acts were done and the declarations were made in furtherance of the common enterprise, it is implicit in its decision that it so concluded. First, the reasoning which led the High Court in Australia in Ahern to conclude that it was for the judge alone to determine the sufficiency of other evidence to establish that the accused was a co-conspirator applies with equal force to the question whether the words were spoken in furtherance of the conspiracy. Second, the court in Barham proceeded to form its own judgment on the admissibility of the words spoken, that is, whether the acts and declarations allegedly concerning Mr Barham were done and uttered in furtherance of the conspiracy. It did not conclude that this was a judgment for the jury about which they had received no direction. It is clear, in our view, that the court applied the reasoning of the High Court of Australia in Ahern to each aspect of admissibility concluding only that specific directions to the jury were required in circumstances where there was a risk that, in the absence of a warning, the jury would be tempted to convict on hearsay narrative alone. This, we think, was also the view of the court in Platten in which, at paragraph 25, Waller LJ summarised the submission made on behalf of the appellant as follows:

“25.

Mr Winter seemed to be suggesting the judge should, in his summing up, have analysed that material which was admissible as direct evidence, fulfilling condition (iii) and then summarised that material which would only be conditionally admissible, leaving it to the jury to decide ultimately whether they were sure that condition (iii) had been satisfied and thus whether evidence was admissible under condition (ii). He was suggesting that it was for the judge to give directions to the jury enabling them to test whether they was evidence that complied with the three stage test approved in R v Smart.” [emphasis added]

At paragraph 26, he added:

“26.

That submission is quite contrary to the views of this court expressed in R v Barham…”

We do not exclude the possibility there may be an occasion on which it will be necessary to direct the jury to consider the nature of the act or the quality of words spoken, because the requirements of each case must be judged upon the evidence adduced. However, there was no issue in the present case that there was a conspiracy to supply heroin (Count 2) and a conspiracy to supply ecstasy (Count 3). Newin had pleaded guilty to those offences. The evidence that Newin, when speaking to Tony on 30 September 2010, was advancing a conspiracy to supply class A drugs was, in our view, overwhelming, and cannot rationally have been challenged. The real issue was not whether Newin was making a declaration in furtherance of the conspiracy (that is, in order to obtain Tony’s confidence in Newin’s future supply) but whether Newin was telling the truth when describing the source of his supply. In our view, the judge properly analysed the requirements of her legal directions having regard to the facts of the case and correctly concluded that the issue between the prosecution and the defence was not whether the relevant words were uttered in furtherance of the conspiracies alleged but whether, when uttered, they were true. No further direction was, in our judgment, required.

The appellant King had two previous convictions, one in 1983 for fraudulent use of a vehicle excise license and another in 2002 for poaching. He had no previous convictions for drugs or firearms offences. The judge concluded that the appellant was entitled to the propensity limb of the good character direction. However, during the course of his evidence the appellant revealed that he had in recent months been dealing in stolen chainsaws and other garden tools. The judge’s attention was drawn to the speech of Lord Steyn in Aziz [1995] 2 Cr App R 478 (HL) with which the rest of the House agreed. At page 488, Lord Steyn considered a dilemma not infrequently encountered by trial judges, namely the direction to be given in respect of a defendant with no previous convictions but who admitted in evidence significant criminal behaviour. Lord Steyn said:

“A good starting point is that a judge should never be compelled to give meaningless or absurd directions. And cases occur from time to time where a defendant, who has no previous convictions, is shown beyond doubt to have been guilty of serious criminal behaviour similar to the offence charged in the indictment.”

The House approved the Court of Appeal’s identification of the trial judge’s residual discretion as to the terms in which a good character direction is given. At page 489 Lord Steyn continued:

“That brings me to the nature of the discretion. Discretions range from the open-textured discretionary powers to narrowly circumscribed discretionary powers. The residual discretion of a trial judge to dispense with character directions in respect of a defendant of good character is of the more limited variety. Prima facie the directions must be given. And the judge will often be able to place a fair and balanced picture before the jury by giving directions in accordance with Vye and then adding words of qualification concerning other proved or possible criminal conduct of the defendant which emerged during the trial. On the other hand, if it would make no sense to give character directions in accordance with Vye, the judge may in his discretion dispense with them. Subject to these views, I do not believe that it is desirable to generalise about this essentially practical subject which must be left to the good sense of trial judges.”

During discussions with counsel upon the contents of her directions to the jury, a process the desirability of which Lord Steyn underlined, the judge observed:

“I think that is what I am saying, is it not, that I think it would be absurd in one breath on these facts to say: “take it into account on credibility” and then in the next breath say: “but hang on a minute, members of the jury, he admitted in evidence dishonesty in relation to handling stolen goods, and that is a matter which you can take into account when considering whether he has told you the truth.”

Mr Sutton submits that the judge fell outside the legitimate limits of her discretion in declining to provide the credibility limb of the good character direction. We disagree. In reaching this conclusion we have examined the recent decision of the Court, not cited to us in argument, in PD [2012] EWCA Crim 19. Moses LJ emphasised the importance of the good character direction if it was properly available to the defendant (see in particular para. 19). In PD the judge had indicated that he would give the propensity limb of the direction but then neglected to do so. In deciding upon the credibility of Mr King’s evidence, the jury were entitled to take into account his admitted dishonesty. The judge was, we conclude, entitled to form the view that the credibility limb of the good character direction would, if given, have been contradictory in its terms and, for that reason, confusing. This is very much a decision for the trial judge with a feel for the case before her. Had the dishonesty admitted been less serious we can envisage that the judge could and would have adopted the course of giving the full good character direction with a caveat attached. On the facts of the present case, however, we do not consider that the direction the judge decided was appropriate can fairly be criticised.

Mr Sutton submitted that the appellant’s admissions in evidence of his dishonesty demonstrated no propensity to be untruthful; accordingly, the jury should not have been told that his dishonesty was relevant to the credibility of his evidence. A dishonest character is relevant to the credibility of evidence, while it may not amount to proof of a propensity to be untruthful. Such evidence may be admissible under section 101(1)(d), (e) and (g) of the Criminal Justice Act 2003 and, if admitted, utilised by the jury for the purpose of judging issues of credibility (see further, Campbell [2007] EWCA Crim 1472, [2007] 2 Cr App R 28 at paras 26, 34 and 35). In our view, the direction given was appropriate.

Finally, it was submitted that if the direction was appropriate at all it was bad character evidence which required a bad character direction, namely a warning that the defendant’s dishonesty did not mean that he was not on this occasion telling the truth and that the jury should not put too much weight upon his character. Had the prosecution been relying on the appellant’s character as demonstrating propensity we agree that a bad character direction would have been necessary. However, this was not such a case. It was for the judge to assess the need for such a warning. Had the judge chosen to embark upon a bad character direction in the present circumstances there would have been a risk of highlighting the issue to the appellant’s disadvantage. As we see it, the effect of the judge’s direction was fairly to convey to the jury the relevance of the appellant’s character: the absence of relevant convictions may mean that the appellant was less likely to be guilty of conspiracy to supply drugs but, when judging the truth of his evidence, the jury could take into account his admitted dishonesty. In our view no unfairness was done to the appellant’s case.

It is submitted on behalf of Mr King that the judge wrongly left to the jury the opportunity to draw inferences adverse to his case by reason of his failure to mention in interview matters on which he later relied in evidence at trial. Section 34 in his material parts provides:

“(1)

Where, in any proceedings against a person for an offence, evidence is given that the accused at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in the defence in those proceedings, or (b) on being charged with the offence … failed to mention any such fact, being a fact which in the circumstances existing at the time, the accused could reasonably be expected to mention when so questioned, charged or informed, as the case may be subsection (2) below applies.

(2)

Where this sub-section applies … the court or jury in determining whether the accused is guilty of the offence charged may draw such inferences from the failure as appear proper.”

At his meeting in Sittingbourne with Tony shortly after 9.00 am on 4 October 2010, Newin agreed to supply Class A drugs which, he said, could be obtained within half an hour. They agreed to meet to carry out the trade at 11.30 am. Newin, driven by Provan, went immediately to Hoath Wood, some 10 miles distant. It was a strong inference that Newin’s supply originated in Hoath Wood. The person to whom he spoke on arrival was the appellant King. In the course of his evidence Mr King relied on the following facts in summary:

The judge gave to the jury the standard direction upon adverse inferences under section 34 and concluded at transcript Volume VI (a) page 18G:

“The defence invite you not to draw any conclusion from the defendant’s silence on the basis of the following evidence: that he says that he feared for the safety of his family if he named other people in his police interview. If you accept this reason and think it amounts to a reason why you should not draw any conclusion from his silence, do not do so. Otherwise, subject to what I have said, you may do so.”

Mr King now argues that he made no assertion that the other residents mentioned were responsible for supplying Newin. For this reason there was no necessity for the jury to assess the truth of such an assertion. It is acknowledged that in some cases the existence or otherwise of a genuine belief by the defendant in alternative possibilities may be an important issue; it was submitted that this was not so in the present case; the appellant’s defence was that he was not responsible; the appellant was merely, at trial, pointing to factual possibilities which could explain (1) the discovery of drugs and guns and (2) Newin’s movements.

As the Vice-President reiterated in Maguire [2008] EWCA Crim 1028 at [10], the expression “fact” in section 34 is to be given a broad construction. We disagree with the assertion that the genuineness of the defence advanced at trial (to be distinguished from the appellant’s mere denial) was not an issue before the jury. The appellant was, in our view, undoubtedly advancing a case that other residents were responsible for the finds made during the police search, although he could not say which, and at trial he identified them, providing circumstantial detail, and called evidence in support (see summing up Volume VI (b) page 48F-G). The “fact” which the appellant was advancing in evidence but had not mentioned in interview was his belief on reasonable grounds in the guilt of one or more of the named individuals. The appellant gave as his reason for not mentioning these matters in interview that “he did not want the back of his head beaten in” (page 42A) and “he had got his family’s safety to worry about” (page 50E). It was not Mr King’s evidence that it had not, in interview, occurred to him to mention other possible candidates or that he then had no reason to suspect them, but that he was too frightened to mention them. In our view, the jury was entitled to consider whether, as the prosecution asserted, the appellant had tailored his defence to meet the emerging prosecution case.

In conclusion, although we have granted leave to appeal, on examination we consider that none of the grounds provides any reason for thinking that the verdicts in Mr King’s case were unsafe. The appeal against conviction is dismissed. We shall grant Mr Sutton QC a representation order for his attendance at the appeal to advance the appellant’s renewed application. We are grateful for his submissions.

Mr Sutton submitted that the sentences upon the drugs counts were manifestly excessive. The total quantity of class A drugs supplied and recovered was, at 100% purity: heroin (335.69g) and MDMA (9,624 tablets). The total quantity of class B amphetamine recovered was 15.03g. Relying on the Aramah guideline as subsequently amended, Mr Sutton suggests that sentences of 13 years imprisonment concurrent were excessive. Sentences of 10 years and upwards are reserved for importations involving quantities in excess of (heroin) 500g or more at 100% purity, and 5,000 ecstasy tablets or more. Since 50% cutting of the drugs suggested that Mr King was one step removed from the importation, sentences in single figures were, it was argued, appropriate. It is conceded that the firearms offences were extremely serious. The firearms were to be used, if necessary, to protect the drugs cache at Hoath Wood. Mr Sutton points to the danger of double counting during the process of assessing the seriousness of Mr King’s overall offending.

We are considering the question whether the total sentence of 18 years imprisonment exceeded a proper reflection of Mr King’s overall criminality. We conclude that it was not. He was convicted of conspiracies to supply a variety of drugs. He was the central and organising figure in an operation which took great care to conceal his involvement. He was prepared, if necessary, to protect his criminal territory with the use of firearms with intent to endanger life. We do not accept that the judge erred in principle or that the overall sentence was manifestly excessive. The application for leave is refused.

We therefore turn to Craig Provan’s appeal against conviction. It is submitted that the judge gave to the jury an erroneous direction upon the necessary constituents of the counts of conspiracy contrary to section 1 Criminal Law Act 1977.

As we have said the judge provided the jury with oral and written directions of law. She also provided the jury with a written route to verdict. At page 10F of the transcript of her summing up for 7 September 2011 (Volume VI (a)), the judge described the essential elements of the conspiracy counts thus:

“Conspiracy. (A) Just as it is a criminal offence to supply drugs, so it is a criminal offence for 2 or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy and that is the offence alleged in Counts 1-3 on this indictment. The prosecution must therefore make you sure in respect of the defendant whose case you are considering that the defendant was part to that agreement in the sense that (1) he agreed with one or more of the other persons named in the count that the crime should be committed; and (2) that at the time of agreeing to this he intended that he should play some part in carrying it out. Counts 1, 2 and 3 are different conspiracies because a different class A drug is alleged in each count.” [emphasis added]

The judge provided these directions to the jury in writing. At page 15C of the summing up the judge read out a route to verdict which she also supplied to the jury in writing. In its relevant parts it read as follows:

“Count 2: Am I sure that Joseph King and/or Craig Provan was (a) a party to the agreement to supply heroin? (b) that he intended that they should supply heroin? In respect of each defendant separately, if the answer to both questions is yes then your verdict must be guilty. If the answer to either or both questions is no, then your verdict must be not guilty.

Count 3: Am I sure that Joseph King and/or Samuel King and/or Craig Provan was (a) a party to the agreement to supply ecstasy with Matthew Newin or with Matthew Newin and another or others? (b) that he intended that he should supply ecstasy? In respect of each defendant separately, if the answer to both questions is yes, then your verdict must be guilty. If the answer to either or both questions is no then your verdict must be not guilty.” [emphasis added]

In the well known decision of the House of Lords in Anderson [1986] 1 AC 27 Lord Bridge, with whom the rest of the House agreed, said at page 38D-F, as to the essential ingredients of a statutory conspiracy under section 1 of the 1977 Act:

“I have said already but I will repeat to emphasise its importance, that an essential ingredient in the crime of conspiring to commit a specific offence or offences under section 1 (1) of the Act of 1977 is that the accused should agree that a course of conduct be pursued which he knows must involve the commission by one or more of the parties to the agreement of that offence or those offences. But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intending to achieve. Nothing less will suffice; nothing more is required.”

It is a controversial question whether the defendant must harbour an intention to participate in the conduct which constitutes the substantive offence (see Smith & Hogan, 13^th edition, para. 13.3.3.6 and Siracusa and Others [1990] 90 Cr App R 340 at page 349). In Siracusa O’Connor LJ pointed out that the organisers (particularly, we would suggest, those who put together the team instructed to commit the offence) will not always, themselves, participate in the course of conduct which constitutes the offence. It could hardly be argued, save upon a literal application of Lord Bridge’s obiter dicta in Anderson, that the organisers were not conspirators. For reasons which will appear, this is not a debate into which it is necessary for this court to enter on the present occasion.

Mr Provan’s complaint is that the jury may have understood something different about the ingredients of the offence from the judge’s written direction (“he intended he should play some part in carrying it out”) than they would from the judge’s written route to verdict (“he intended that they should supply heroin/ecstasy”).

It would have been better if the wording of the route to verdict in its essential parts had been identical to the wording used in the written direction. However, in our view the jury can have been under no misapprehension that the prosecution was required to prove that Mr Provan intended to play a part in the supply of (Count 2) heroin and (Count 3) ecstasy. The prospect that the jury may have regarded the test set out in the route to verdict as any less stringent than that set out in their written directions is, we think, negligible.

In any case, there is, it seems to us, no merit in the appellant’s argument having regard to the facts of the case. What was in issue between the prosecution and the defence in Mr Provan’s case was whether he was a party to the agreement. Immediately after the meeting on 4 October at which, on the prosecution case, an agreement for supply of heroin and ecstasy that day was completed, Mr Provan drove Mr Newin to Hoath Wood where the drugs were to be collected. It was not in issue that Mr Newin was in fact assisted by Mr Provan in the operation of the conspiracy because he drove him to the collection point. The issue was whether Mr Provan was a party to the agreement. It was Provan’s case that he did no more than agree to purchase cannabis. His assistance to Newin was coincidental and unintentional. We conclude that the negligible risk to which we have referred can have had no bearing on the safety of the jury’s consideration of his case.

Mr Provan objected to the admission of remarks made by Newin to Tony in Provan’s absence. On Friday 1 October 2010, Mr Provan gave Newin a lift in his van to a meeting with Tony in the café in Sittingbourne. Provan remained outside the café in the van. Newin was recorded as saying to Tony about Provan:

“My old man’s in the van there, he’s the one who’s interested in the weed … Father, he’s a bit, he’s like the, hired muscle … he’s like the hired muscle that geezer.”

It is submitted by Mr Glen QC that these words were mere hearsay narrative and cannot properly be treated as furthering the common enterprise.

There were, on Mr Provan’s case, two proposals, the first that Newin would supply Tony with heroin and ecstasy, and the second that Tony should supply skunk cannabis. Provan said that he had no involvement in the first proposal but agreed to purchase skunk cannabis from Tony. Provan had pleaded guilty to count 4 charging an offence of encouraging or assisting in the supply of cannabis. The jury’s principal task was to consider Provan’s words and actions in order to determine whether he was also involved in Newin’s conspiracies to supply heroin and ecstasy.

The meeting on 1 October 2010 was the first time that Mr Provan had any identifiable involvement in Newin’s activities. Newin made two assertions to Tony about Mr Provan: first, he was interested in purchasing “weed”, an assertion which Provan accepted at trial was true, and second, that he was the “hired muscle”. Sensibly understood the words “hired muscle” could not have been used in connection with Provan’s interest in purchasing cannabis. It was the prosecution case that Newin was plainly referring to Provan’s role in the supply of class A drugs by Newin. In our view, the words spoken, if proved, were clearly relevant to that issue. They were admissible because, in our judgment, they could properly be treated as a constituent part of Newin’s attempt to obtain and keep Tony’s confidence as a purchaser of ever increasing quantities from reliable suppliers of class A drugs. We recognise, as did the judge, the risk that for his own purposes Newin was exaggerating Provan’s involvement. As in the case of Joseph King, the judge gave a specific warning to the jury that Provan was not present to comment upon Newin’s remarks made on 1 October and that they should guard against assuming that what Newin said was accurate. In our judgment, the evidence was properly admitted and the jury was properly directed to approach it with caution.

The heart of the case against Mr Provan was the contents of a recorded conversation between four men, including Provan, Newin and Tony, in the East Street café in Sittingbourne on 4 October, followed by Provan’s journey with Newin immediately afterwards to Hoath Wood. We have been provided with a transcript of the conversation considered by the jury. During the course of that conversation Tony said to Newin and Provan (Ex page 351):

“You check the paperwork and we’re done ain’t we, and then we can do the other thing.”

The prosecution suggested “paperwork” was a reference to payment for the class A drugs and “the other thing” was the cannabis deal to follow. Mr Provan replied:

“Yeah, definitely, yeah.”

The arrangement was that the class A drugs would be supplied at about 11.30 am and the cannabis at about 2.00 pm. At exhibit page 356, the transcript of the conversation establishes that Mr Provan took an active part in setting the timetable for the two transactions. Immediately after Newin and Provan had left the café, Newin telephoned Joseph King and Provan drove Newin to Hoath Wood. There, Joseph King and Newin engaged in conversation. In our view, there was ample circumstantial evidence from which the jury could infer Provan’s participation not only in the count 4 “encouragement” but also in the count 2 and count 3 conspiracies, quite apart from the hearsay remark made by Newin in Provan’s absence three days before. The hearsay was admissible and there is no danger that the jury may have convicted upon the hearsay alone.

Mr Glen endeavoured to persuade the judge that it was not appropriate to give to the jury a Lucas direction concerning Mr Provan’s denial in interview that he had any conversation (in the East Street café on 4 October 2010) which involved a proposal to purchase cannabis from Tony. As we have said, at his trial upon counts 2 and 3 it was Mr Provan’s case that his only involvement was in the encouragement of the supply of cannabis which he had admitted by his plea of guilty to count 4. On the other hand, the prosecution case was that the cannabis conversation embraced the proposed supply of class A drugs also.

Mr Glen’s argument was and is that the admitted lie in interview had no impact upon the jury’s consideration of counts 2 and 3 because the denial related only to the activity which became count 4. The judge did not accept this submission. No objection had been taken to the admission of the evidence, and there was a risk, she concluded, that the jury would utilise Mr Provan’s false denial in interview in their consideration of counts 2 and 3. The risk was that the jury would jump to the conclusion that because Mr Provan had lied about an important matter in interview he was guilty of all the accusations made against him. In our view, the judge was plainly right. We accept, of course, that there was available to Mr Glen the jury point that the lie was told by Mr Provan in contemplation of his guilt of count 4 and had nothing to do with the class A allegations, but that did not absolve the judge of her responsibility in an appropriate case to warn the jury against jumping to a different conclusion. There were in the present circumstances two alternatives available to the judge: either she should warn the jury not to draw any inference adverse to the defendant or she should give the Lucas direction. The judge told the jury that a defendant may lie for the “innocent” reason that he was concealing other disgraceful conduct (that is, he was concealing conduct other than that alleged in counts 2 and 3). That was Mr Provan’s case. She did not withdraw from the jury the opportunity to consider drawing an adverse inference if they thought it fair to do so. We detect no unfairness to Mr Provan in the judge’s decision to give the direction she did. It remained open to the jury to reject Mr Provan’s explanation and to conclude that his denial was made in the full realisation that the conversation being put to him in interview embraced both class A and class B drugs; and that he was denying the conversation in anticipation of the more serious consequences which would inevitably follow an admission. We do not consider that the judge made an error of principle or judgment.

We conclude that on examination there is no substance in Mr Provan’s grounds of appeal and his appeal is dismissed.