Shillam v R

On 9 July 2012 at Birmingham Crown Court before HH Judge Henderson the appellant was convicted of conspiracy to supply cocaine. The particulars of the offence alleged in the indictment were:

The appellant was given leave to appeal on the single ground that the direction given by the judge in response to a note from the jury allowed the possibility that the appellant and his co-accused were convicted of the offence charged without the jury necessarily being sure that they were all guilty of the same conspiracy. The appellant also renews his application for permission to appeal on the ground that the judge failed properly to direct the jury as to the need for proof both of the conspiracy alleged and of the appellant’s participation in it. The complaint made under this head is linked with the complaint made about the judge’s response to the question from the jury and we give leave for the appellant to advance it.

The prosecution’s case was based on surveillance, telephone evidence and material obtained on the arrest of suspects. Robb was alleged to be the central character. Cocaine was cut and prepared at 151 Slade Road, Sutton Coldfield. On 6 April 2011 Robb was seen to make a delivery at that address. The prosecution asserted that he was delivering cutting agents. Next day the premises were raided. Dean and Vizard were present. The police found 225.8g of cocaine together with benzococaine and phenacetin, which are well known cutting agents, and a hydraulic press. Dean and Vizard were subsequently convicted of possession of cocaine with intent to supply.

The appellant and Reid were both alleged to be regular purchasers of cocaine from Robb for onward sale.

In the case of the appellant, on 6 April 2011 a van with two occupants was seen to stop beside Robb’s car at a car park. One of the occupants got into Robb’s car briefly and then returned to the van. The van was driven off but was stopped shortly afterwards by the police. The appellant was the driver and in it was 6.99g of cocaine. Examination of the appellant’s phone revealed a number of text messages from people wanting to buy cocaine from him, and showed also that he was in frequent phone contact with Robb but not with any other alleged conspirator.

In the case of Reid, on 23 March 2011 Robb was seen to get into the passenger side of a car registered in the name of Reid. He got out of the vehicle two minutes later and put a large bundle of cash in his pocket. Reid’s home address was searched on 28 April 2011. He had 1.4 kg of benzococaine and 245g of lignocaine, as well as a quantity of cannabis and £1,545 in cash. Examination of his phone revealed a number of text messages suggesting that he too was dealing in drugs, and that he too was in regular phone contact with Robb.

The prosecution’s written case summary concluded:

Mr Potter confirmed that this was how the case was presented to the jury, except that it was not suggested that the appellant was involved in the cutting up of the drugs. His role was that of a purchaser of drugs from Robb, which he sold on to sub-buyers.

Before summing up, the judge wisely provided counsel with a draft of directions which he intended to give to the jury. The proposed directions identified the critical question as follows:

Overnight Mr Brunt on behalf of the appellant produced written submissions in which he suggested, by reference to the analysis of the law of conspiracy in D [2009] EWCA Crim 584, that the jury should be asked:

The judge declined to vary his proposed direction. Mr Brunt’s suggestion that the jury could only convict any defendant if they were sure that all five named individuals were guilty of the conspiracy alleged was incorrect; but his submission and his reference to D did have the merit of pointing to the need to identify the scope of what was charged by the prosecution as a single conspiracy.

The judge’s summing up did not contain any summary of how the prosecution put its case as to the scope of the alleged conspiracy, or make any mention of the matters relied on to show that the appellant and Reid were not merely separate buyers from Robb but rather were parties to a wider conspiracy.

In his general directions the judge said that the real issue in the case could be summed up in one sentence, which he expressed in the same way as he had indicated that he proposed to do.

After retiring to consider their verdicts, the jury sent the judge a note in the following terms:

The judge raised the matter with counsel. Mr Brunt referred again to D and to the question whether there was a single conspiracy or more than one. The judge said that he had already given his ruling about that.

On the jury’s return, the judge read out their question and directed them:

We accept Mr Brunt’s submission that this direction was misleading. As the single judge observed when granting leave to appeal, the judge’s answer to the jury’s question allowed the possibility that all three defendants could be convicted of separate conspiracies with different people.

We also accept the broader submission that the judge’s general directions were defective. The relevant legal principles have been analysed in a number of cases, most recently in Mehta[2012] EWCA Crim 2824, in which the court said:

Conspiracy requires a single joint design between the conspirators within the terms of the indictment. It is possible, as in Mehta, that the evidence may prove the existence of a conspiracy of narrower scope and involving fewer people than the prosecution originally alleged, in which case it is not intrinsically wrong for the jury to return guilty verdicts accordingly, but it is always necessary that for two or more persons to be convicted of a single conspiracy each of them must be proved to have shared a common purpose or design.

In the present case the prosecution’s argument was in effect that there was a “wheel” or “chain” conspiracy with Robb at its centre or head; but in such a case, although each conspirator need not necessarily know of the identity or even the existence of all the other conspirators, there must be a shared criminal purpose or design in which all have joined, rather than merely similar or parallel ones.

The law in this regard is accurately stated in Smith & Hogan’s Criminal Law 13^th ed (2011) at 427:

The judge’s summing up did not address that issue. On the contrary, he directed the jury that for a defendant to be convicted it was sufficient to show that he had agreed with another person, whether identified or unknown, for the supply of cocaine within the period of the indictment. This left it open to the jury to convict all three defendants of the conspiracy charged against them, is satisfied that the appellant and Reid had each made arrangements with Robb to buy cocaine from him, whether or not the appellant or Reid was party to a wider design. This was wrong.

Since Robb was put by the prosecution as the head of the alleged conspiracy, and the involvement of the appellant and Reid was with him, the jury should have been directed to consider first the case in relation to Robb. As to that, there was a strong case that he masterminded the acquisition and processing of the drugs for onward distribution, and that this must have involved the knowing participation of others, so rendering him guilty of the conspiracy charged. The jury should next have been told that if they were not sure of Robb’s guilt, they should also acquit the other defendants; but that if they were sure of his guilt, they must then consider whether the prosecution had proved as against each of the other defendants that they shared a common purpose or design (as distinct from separate but similar designs) so as to be a party to the same conspiracy, i.e. a conspiracy wider than the supply of cocaine to that particular defendant.

The question then arises whether, despite the defective directions, the appellant’s conviction is safe on the evidence which the jury received. On that point, Mr Potter properly accepted that, if the court were to conclude that there had been a misdirection of the kind which we have found, he could not submit that on a proper direction the jury would necessarily have been sure that the appellant was party to a conspiracy which went beyond arranging to buy cocaine from Robb. Indeed, on the material before this court we can see no basis for a properly directed jury finding that the appellant was party to a conspiracy with anyone other than Robb. The appellant appears to have been a regular buyer from Robb of drugs which he would sell to his own customers, but no more than that, as distinct from being, say, an agent acting for Robb as part of a single co-ordinated network for the processing and distribution of drugs. If the appellant were to be regarded on the evidence as a participant in a wider conspiracy, it is difficult to see why the same would not apply to every other person in the chain of buyers and sellers from the originator down to the end users. Mr Potter submitted that the appellant’s position could be distinguished from others upstream of Robb and downstream of the appellant, because of the frequency and closeness of the appellant’s dealings with Robb, but that is no reason for regarding him as a conspirator with persons other than Robb. The appeal must therefore be allowed and the appellant’s conviction quashed.

The moral of the case is that the prosecution should always think carefully, before making use of the law of conspiracy, how to formulate the conspiracy charge or charges and whether a substantive offence or offences would be more appropriate. It is unfortunate that the appellant was not charged with possession of cocaine with intent to supply (as Dean and Vizard were), for it is plain from the jury’s verdict that he would have been convicted. Prosecutors should take note of the court’s words in Griffiths at page 599: