Burton v R

On 4 November 2013 in the Crown Court at Winchester this appellant upon a second retrial was convicted of conspiracy fraudulently to evade the prohibition on the importation of a Class A drug, namely cocaine. He was subsequently sentenced to 14 years imprisonment. A Serious Crime Prevention Order for a period of 5 years was imposed to commence on the date of the appellant’s release from custody.

The main ground of appeal on which leave was granted by the full court relates to the fact that the trial judge refused an application to stay the proceedings. The trial at which the appellant was convicted was a second retrial. In short it was argued that the judge should not have permitted a third trial upon the same allegation to be conducted. There is a second ground of appeal which relates to the adequacy of the summing up in certain respects. The full court did not give leave for that ground to be argued, but referred the matter to this court, and it has been renewed before us today. We grant leave in relation to that ground.

The facts show that between October 2009 and November 2010 the co-accused Wilson and Heibner along with others were involved in a conspiracy to import cocaine by ship from Colombia through Portsmouth Docks. This conspiracy has been referred to as the “dry conspiracy” because no drugs were ever imported. Wilson worked as an accounts manger for Portsmouth Docks and was the inside man. In the event, although no drugs were ever imported in the course of this conspiracy, significant planning took place. A particular problem was getting the cocaine into containers of bananas. The appellant’s role in the conspiracy was alleged to be as the financier of the importation. The evidence showed that he had attended several meetings principally with Wilson and Heibner from January 2010 onwards. For example, on 14 April 2010 Wilson was observed holding a multicoloured spreadsheet with the appellant holding a pen and paper. The appellant gave cash to Wilson. At another meeting on 6 May 2010, which was video and audio recorded, documents were shown and money exchanged. There was reference to an importation of drugs on ships travelling from South America. In addition there was frequent telephone contact between the appellant, Wilson and Heibner.

At the end of June 2010 the appellant was arrested for an unrelated conspiracy to import over 400 kilograms of cannabis through Tilbury Docks. From that point his involvement in the dry conspiracy ceased. The appellant pleaded guilty to this separate conspiracy and received a sentence of 6 years imprisonment in October 2010. The jury in the present matter was informed of this.

The appellant had several meetings with an undercover police officer between April and June 2010 in relation to the Tilbury conspiracy. However it is right to say that in those meetings he only ever mentioned cannabis.

In November 2010 Wilson was arrested following the seizure of 26 kilograms of cocaine at the Portsmouth Docks. This importation arose from another unrelated conspiracy to import cocaine (the “MV Emerald Conspiracy”) in which the appellant was not involved. This event brought to an end the dry conspiracy. Wilson subsequently pleaded guilty and a co-accused, Godber was convicted by a jury of the MV Emerald Conspiracy and received 20 years. He was originally indicted on the present matter, but after conviction and sentence on the MV Emerald Conspiracy, the Crown decided not to proceed against him.

On 22 March 2011 the appellant was arrested in relation to the dry conspiracy. He made no comment to all questions put in interview. At the retrials he did not give evidence, although he did at the initial trial. The Crown’s case was that the appellant was party to the dry conspiracy and that he was a significant financier of the proposed importation. The defence case was to deny involvement. All the appellant had ever had an interest in was importation of cannabis not cocaine. All of the observed meetings related to importing cannabis; cocaine had not been mentioned. Moreover the appellant claimed not to have the financial resources to fund the dry conspiracy, and indeed had been in debt so that he required a bank loan at the end of April 2010.

At the outset of the third trial counsel for the appellant objected to there being a third trial. The judge ruled against the submission. In brief he said that the offending was extremely serious and that this could properly be described as a crime of extreme gravity. A stay of proceedings was an exception rather than a rule provided that the appellant could receive a fair trial and that it would not be unfair to try him again. The judge held that it was not an abuse for the matter to be tried a third time so that he refused the application for a stay.

The chronology of the trials was as follows. At the end of the first trial in late August 2012 Heibner was convicted but the jury could not agree in relation to the appellant so that it was discharged from returning a verdict. The co-accused Wilson had previously pleaded guilty to the indictment. The first retrial came to an end at the end of March 2013. The jury could not reach verdicts on the appellant and a co-accused Chambers who had previously been too ill to be tried. It was discharged from returning verdicts. The second retrial, as already stated, concluded on 1 November 2013 with the convictions of both this appellant and Chambers.

The first issue in the case is concerned with whether it was proper to have a second retrial after two successive hung juries. This appellant was convicted after the third trial, two previous juries having been unable to reach a verdict. The first point to be noted is that the first two trials went the full distance without, for example, the jury having been discharged part of the way through either of them as a result of some problem or irregularity. Secondly, this is not a case where after a full trial a conviction has been quashed by this court which has then ordered the matter to be retried. In either of those circumstances, different considerations would arise.

The appellant’s essential submission was that no second retrial should have been permitted because second retrials after two hung juries are permissible only in exceptional circumstances. Strong reliance was made on the decision of this court in the case of Bell [2010] 1 Cr App R 27 where at paragraphs 45 and 46, Lord Judge CJ identified two characteristics which would have to be satisfied prior to a second retrial taking place. Those characteristics were:

Mr Michael Howard QC’s submissions on this point were in contrast to those made by Mr Jory QC for the Crown. Mr Jory QC submitted that whilst the first decision as to whether there should be a second retrial is one for the prosecutor, the trial judge undoubtedly has a role in that he has to decide whether to accede to the Crown’s request or proposal for such a trial. He acknowledged that the judge is not confined to assessing whether the Crown’s decision to proceed is unreasonable by application of Wednesbury principles, but submitted that the judge should only decline the Crown’s request where a further trial is not in the public interest or would be oppressive or unjust. The power to refuse to order a retrial was akin to the court’s power to prevent abuse of process and to ensure that it was not unfair to try a defendant further.

The Crown’s submission was that the primary consideration therefore was the interests of justice and an avoidance of oppression or injustice to a defendant by trying him further. Mr Jory argued that the two characteristics referred to at paragraph 46 of Bell did not operate as the sole test, but represented features of the overall test of whether a further trial would be in the interests of justice. Mr Jory placed reliance on the more recent decision of this court in Ali [2011] 2 Cr App R 22 and in particular paragraphs 123 to 125.

We were provided with a number of authorities but it seems to us that those which are most relevant are Bell, Ali, and the Privy Council decision in Bowe (also known as B (A Child) v The Queen) (Privy Council Appeal No. 48 of 2000) [2001] UKPC 19.

In Bell at paragraph 28, Lord Judge CJ helpfully extracted the relevant parts of paragraphs 37 to 39 of Bowe in the following way:

“The principle which applies in this jurisdiction is best encapsulated in the observations of Lord Bingham of Cornhill in Bowe v R (a second retrial for murder) a judgment of the Privy Council delivered on April 10 2001 on appeal from the Court of Appeal from The Bahamas. He observed at [37]: “it is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree…but that is no more than a convention, as recognised by the Court of Appeal (Criminal Division) in R v Henworth[2001] 2 Cr App R 4 (p 47)…it may well be that the prosecuting authorities, having failed to obtain a conviction, even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further retrial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second retrial…there may of course be cases in which, on their particular facts a second retrial may be oppressive and unjust…whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests…account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system…” ”

Turning to the decision in Bell, the following paragraphs seem to us to be relevant:

“25.

It was submitted by the prosecution that the judge was confined to deciding whether or not the decision of the Crown to proceed to a third trial was reasonable or unreasonable within the ambit of what, for shorthand, were identified as the Wednesbury principles…the judge rejected the submission, acknowledging that the first decision whether a second retrial was in the public interest should be made by the prosecution, but that it remained open to him to consider that question and decide whether or not the second retrial would be oppressive and unjust. We agree with the judge. The questions whether the public interest required a second retrial and whether such a retrial would be oppressive and unjust were inextricably linked. The Crown rightly addressed both. The decision to proceed was made, as it had to be made, in the round. But once made, the processes of the court were engaged, and the court has exclusive control over those processes. The ultimate question for the judge was whether the interests of justice (which require a fair trial in circumstances which are neither oppressive nor unjust), justified a second retrial.

…

45.

Unlike the judge who was making his decision in advance of the second retrial, we have examined not only the basis of his decision (about which in our judgment there can be no criticism whatever) but also whether, in the result the effect of his decision was to produce an unfair trial, or, to use more familiar language was oppressive or unjust…we cannot discern any unfairness or oppression. The conviction is safe.

46.

We doubt the value of offering further guidance on the circumstances in which a second retrial may be appropriate. We shall confine ourselves to reminding the Crown that the jurisdiction which permits a second retrial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second retrial should be confined to the very small number of cases in which a jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here) on any fair-minded objective judgment remains very powerful.”

Ali was a case different from the other cases cited to us all of which involved murder. It was a terrorism case involving allegations against a number of defendants of conspiracy to murder by the detonation of improvised explosive devices on transatlantic aircraft in flight. In the event, no explosions took place and no deaths resulted. On the appeal there was an issue as to whether a second retrial should have taken place. The relevant part of the judgment is as follows:

“Issue 2: was a second retrial in the interests of justice?

i)

The general principles

120.

It is well established that a defendant should not be subject to a second retrial unless the interests of justice (which require a fair trial in circumstances which are neither oppressive or unjust) justify a second retrial: see Bell…Although the Crown must decide first whether it is in the interests of justice to seek a retrial, it is for the court to decide whether there should be a retrial. In doing so, it must undertake a dispassionate and informed assessment of how the interests of justice are best served, taking full account of the defendant’s interests and the public interest in convicting the guilty and maintaining public confidence in the efficacy of the criminal justice system: see the judgment of Lord Bingham in B (A Child) v R…and the illuminating judgments of DS v The Judges of the Cork Circuit Court and the DPP [2008] IESC 37, particularly that of Denham J at [17].

121.

In Bell Lord Judge CJ provided some observations as to the circumstances in which a second retrial should be ordered at [46]: [Thomas LJ (as he then was) then cited the passage which we have already quoted above].

122.

Submissions were made to Holroyde J prior to the decision in Bell; the argument was then adjourned to await the decision in Bell and further argument then took place. In his ruling permitting a third trial made on February 19 2010 Holroyde J considered that the circumstances in which a second retrial should be ordered were not confined to those identified at [46] of Bell. A judge must consider whether the public interest required a second retrial.

ii)

A two stage approach?

123.

It was first submitted to us that there was a two stage test. We should first consider if the conditions set out at [46] of Bell had been satisfied and only if they were satisfied should we proceed to examine the wider interests of justice.

124.

We do not consider this is the correct approach. It is clear from the authorities, as Holroyde J rightly held that what the court is concerned with are the interests of justice. The observations made my Lord Judge CJ will in the ordinary case, no doubt apply but these trials were not the ordinary case.

125.

In any event, even if there was to be a two stage test, that test would have been satisfied. Our reasons for this can be shortly explained…in our judgment it is clear from the convictions in the first trial and the conviction of Islam in the second trial that there had been a conspiracy to commit murder; such a conspiracy was plainly a crime of extreme gravity. Secondly, subject to the considerations we addressed below in relation to overlapping evidence there was a powerful case against these appellants.”

As we have already indicated the approaches of counsel to the issue in this case as to whether it was proper for there to have been a second retrial were in contrast. The appellant sought to confine matters to the two characteristics identified at [46] of Bell whereas the Crown sought to broaden the inquiry by reference to a wider interests of justice case. It was suggested that there was a degree of tension, if not a conflict, between the approaches in the cases of Bell and Ali.

We note that in Bowe Lord Bingham stated:

“…whether a second retrial should be permitted depends upon an informed and dispassionate assessment of how the interests of justice in the widest sense are best served.”

Again, at paragraph 25 of Bell, Lord Judge spoke of:

“The ultimate question for the judge was whether the interests of justice (which require a fair trial in circumstances which are neither oppressive nor unjust), justified a second retrial.”

Both of those decisions therefore were very much grounded in an interests of justice based approach to the question before us. At paragraph 120 of Ali, Thomas LJ clearly adopts that approach by reference to Bowe and Bell and at paragraph 124 appears to adopt the interests of justice test whilst commenting that the observations made by Lord Judge at [46] of Bell would no doubt apply in the ordinary case.

It seems to us therefore that the authorities indicate that whilst the circumstances identified at [46] of Bell will usually be a sufficient test of where the interests of justice lie in most cases, a wider consideration of such interests stretching beyond those factors may be required in some cases. In any case there must be an informed, dispassionate and searching examination of why a third trial is justified, when there were no irregularities in the first two.

To the foregoing materials we should also add the CPS Guidance to Prosecutors in relation to second retrials. It is in these terms:

“Exceptional circumstances required for a third trial

Where two juries fail to reach a verdict, the presumption is that the prosecution will not seek a third trial unless there are exceptional circumstances. Factors which might justify a third trial include:

•

Jury interference…

•

Additional evidence that has recently come to light and was not available at earlier trials.”

The guidance then refers to the decision in Bell and the reference to exceptional circumstances appears to be a paraphrase of the effect of that decision. This is guidance directed to prosecutors rather than binding on the court, but in our judgment having regard to the convention, it correctly identifies that the starting point is that the prosecution will not seek a third trial in the absence of special factors that would justify such a course.

Mr Howard QC submitted that the trial judge’s analysis was unsatisfactory in a number of respects. Firstly, there was no inquiry as to why the prosecution wished to proceed with a third trial beyond the judge being told that a decision had been made by the head of the Organised Crime Division. Secondly, although the judge said that this was a case of extreme gravity, he had not explained why and in his ruling appeared to have watered down or qualified that stringent test. Thirdly, in the judge’s ruling there was no analysis at all as to how or why there was very powerful evidence against the appellant. This was in contrast to the analysis by Lord Judge in Bell of extremely strong evidence in that case whereas in this case the evidence was much more tenuous. Fourthly, in stating that a stay would be the exception rather than a rule, the judge had taken the wrong approach because an application of this sort should be determined by consideration of whether an exception should be made to the conventional rule that the case should not proceed. It was for the Crown not the defence to meet the threshold of exceptionality.

For the Crown it was submitted that the judge was aware of the CPS guidance, the decision in Bell (but not in Ali), and could assess the evidence. The judge was best placed to rule after considering the competing arguments. Only if his decision was clearly wrong should this court interfere. It was acknowledged that the judge had addressed the matter from the standpoint of abuse of process rather than whether the interests of justice permitted a further trial and that in this respect there was a lack of clarity in the judgment. It was also acknowledged that the judge had not clearly applied the tests identified in Bell, but it was said that he had done sufficient to consider the cases and the interests of justice and that his approach was “not entirely wrong.”

It is clear from the decided cases that permitting a case to go forward to a second retrial will be the exception rather than the rule and that it will require the most careful consideration by a judge before he permits such a retrial to take place. The trial judge’s ruling was brief and although he referred to the CPS guidance and the decision in Bell he did not in our judgment focus on the essential questions sufficiently sharply.

In his ruling, having mentioned murder as a crime of extreme gravity, he went on to say:

“This case is in my judgment also an extremely serious case involving…the potential importation of drugs and a quantity of drugs, if one looks at the first trial, in considerable quantity I should say, which could properly be described as a crime of “extreme gravity.” It is in no way a minor matter.”

It seems to us that this fell short of the necessary careful consideration. It will be seen that the reference to the need for “extreme gravity” became watered down to “an extremely serious case” and then to “in no way a minor matter.” Whilst of course we must be careful about becoming involved in pure semantics, the clear impression is one of a lack of rigour. Mr Howard characterised the judge’s approach on this issue as adopting the wrong scale. The correct contrast was “not between major and minor matters, but between major and very major matters.” We think there was force in that submission.

We note additionally that the judge spoke of the potential importation of drugs, (since this case did not involve any actual importation), and looked back on the MV Emerald trial where some 26 kilograms of cocaine had been imported as a guide to enable him to say that the conspiracy before him was a crime of extreme gravity. There are a number of problems with that approach. Firstly, this appellant was not alleged to have been involved in the MV Emerald conspiracy. Secondly, this case had not involved the actual importation of any quantity of drugs. Thirdly, serious as it is, the importation of 26 kilograms of a Class A drug is, regrettably, relatively commonplace.

Whilst it cannot be a decisive factor, we note that all the other cases in this area are homicides where there is a specific victim affected and the interests of the family of the deceased are relevant factors in the assessment as to what justice requires above and beyond the general public interest. Whilst in this case there is of course a public interest in trying those who plan to bring Class A drugs into this country, it is a material consideration in the present context that no drugs arrived here so that none were put into circulation with inevitable harmful results. Ali, of course,is an example of a crime of extreme gravity where no homicide took place and no harm was done, but it seems to us that a particularly strong justification will be required for a case to satisfy a test of extreme gravity if there has not been a murder.

Further, the judge wholly failed to address the issue of whether the evidence against this appellant was very powerful. True it is that the Crown had provided a document setting out the evidence against this appellant, but it was merely a summary of the available evidence and did not seek to demonstrate how or why that evidence was very powerful. We will return later to the question of whether or not the evidence was in fact very powerful, but the judge’s apparent failure to deal with this aspect again undermines his conclusion.

It thus appears to us that the judge failed adequately to address both key requirements identified at [46] of Bell. Where normally both such requirements should be satisfied a judge faced with this issue should examine why the Crown wishes to proceed for a third time; this may require an examination of the decision made to do so; the failure to do so here had the consequence that the judge was simply faced with the information that a senior lawyer in the CPS had approved a further trial without having the benefit of any explanation as to why it was contended that the case was exceptional.

We do not think that the question of exceptionality was sufficiently considered by the judge and his reference to there being several cases indicating that a stay should be an exception rather than a rule appears to put the burden of persuasion the wrong way round. It is clear that the convention that there will not be a second retrial means that such a retrial will only occur in a small number of cases, and that the decision to proceed must be exercised with extreme caution. In fairness to the judge it may be that references in the defence skeleton argument to abuse of process led him astray in this respect, but it should have been clear both from the CPS Guidance and the authorities that it was for the Crown to justify the proposed course of a second retrial. We note that at paragraph 161 of Ali the court said that the consideration as to whether it was in the interests of justice for there to be a third trial are in this context identical with the question of whether such a trial would amount to an abuse of process.

In all those circumstances we are satisfied that the judge’s ruling cannot be upheld. Accordingly, as both counsel agreed, it is for this court to consider the matter afresh.

It is clear to us that the number of cases in which a third trial is permitted should be strictly limited in order to maintain public confidence in the criminal justice system and provide a degree of finality for a defendant. It is for that reason that the court must proceed with extreme caution. If a crime is truly one of extreme gravity and the evidence is cogent despite the problems experienced by previous juries then it may well be an affront to justice and more likely to undermine public confidence not to pursue the aims of convicting the guilty and deterring the most serious crimes. We note that Lord Bingham spoke of deterring violent crime, but it may be that other types of crime could satisfy the test, although there were no examples to date in the case law provided to us.

We have already noted that in this case the conspiracy did not result in the importation of any drugs so that direct actual harm has not been caused. This cannot be determinative but it seems to us to be a relevant consideration. We note that the sentence imposed by the judge was one of 14 years. That suggests that whilst the case was undoubtedly very serious, it was not one of extreme gravity. Further, that figure represents the starting point after a trial for a person in a leading role under the relevant guideline. It is within the category range which goes up to 16 years, and the guideline itself states “where the operation is on the most serious and commercial scale” sentences of 20 years and above may be appropriate.

In addition the Crown had decided not to proceed against a defendant called Godber who had originally been charged with this conspiracy. The case against him did not proceed after he received 20 years for the MV Emerald conspiracy. We have analysed the Crown’s opening note for the first of the series of trials relating to this conspiracy. It is apparent from that opening that Godber had been involved between September 2009 and June 2010, a longer period than this appellant’s involvement in the conspiracy between January and June 2010. Had this truly been an exceptional case involving a crime of extreme gravity then one would have expected Godber to have been proceeded against notwithstanding his conviction and sentence for the MV Emerald conspiracy. It rather tends to demonstrate that serious as this conspiracy was, it was not so serious as to demand Godber’s inclusion in the indictment relating to it. No one can say that this was anything other than serious crime, but it did not go beyond an everyday large-scale Class A drugs conspiracy of a type familiar to many Crown Courts around the country.

We next consider the requirement of very powerful evidence against the appellant. We note that this is not a case where some fresh evidence had come to light since the first two trials. The evidence was exactly the same and two previous juries had been unable to agree. The Crown’s skeleton in response to the application made to the judge below set out the evidence relied on against this appellant. Despite invitation to do so by the appellant prior to this appeal the Crown has not elaborated further. It is in these terms:

“9.2

There is no dispute that the conspiracy existed (see findings of guilty re Heibner and Wilson).

9.3

There is no doubt that the conspiracy concerned cocaine rather than cannabis (ibid).

9.4

The evidence shows Burton meeting regularly with Heibner and with Heibner and Wilson where arrangements for importations are discussed.

9.5

Burton made no comment in interview. At the first trial he gave evidence indicating he was a cannabis importer and did not plan to import cocaine. At the second trial he did not give evidence.

9.6

Burton’s defence amounted to accepting that he was involved in a conspiracy to import drugs but that although it involved the same people it was a separate conspiracy to that on the indictment and concerned only cannabis.

9.7

The evidence is that the “Star” line ships came from Colombia via Antwerp. Burton’s suggestion is that they could deviate to Jamaica to pick up cannabis but the evidence contradicts this.

9.8

All known drug seizures on vessels concerned with importing bananas between 2009 and 2011 were of cocaine (and on one occasion heroin). ”

The assertion at paragraph 9.8 of the skeleton related to seizures at Portsmouth. As to paragraph 9.4 there was no evidence that Burton had on any occasion referred to cocaine as the substance to be imported and no evidence that on any occasion when he was present had cocaine specifically been discussed. The appellant’s case before the jury was that he was interested in the importation of cannabis and it was to that end that he had contact with his co-accused. It was part of his defence that at the relevant time he had been involved in a conspiracy to import cannabis via Tilbury Docks, a conspiracy for which he had been convicted and sentenced. It seems to us that whilst the Crown had a circumstantial case against the appellant it was not one which could be described as being sustained by very powerful evidence. This can be contrasted with the type of scientific evidence identified by the Court in the case of Bell and evidence involving martyrdom videos in the case of Ali. It thus seems to us that the second of the two specific tests identified at [46] of Bell is not satisfied in this case.

Turning to the wider interests of justice it seems to us that some of the relevant considerations such as the need for finality and the need to prevent oppression by the Crown seeking repeated trials until it can secure a guilty verdict are already built into the process by reason of the identified convention that ordinarily a second retrial will not be permitted. We are unpersuaded by a submission that it was wrong for this judge who had heard the first and second trial to preside over the third trial. There is often much to be said for a degree of judicial continuity, particularly in large cases where the judge’s case management responsibilities are increasingly important to the efficient administration of justice. In any event, we note that in Mullen[2000] QB 520 at page 8 the court held that there was no established principle that it would be wrong for a judge to preside over a retrial or retrials. There may be circumstances where it is undesirable for a judge to do so, but the matter must be decided on a case by case basis and we see nothing objectionable in this judge continuing with the case after the second jury disagreement if it were right to do so.

Reference was also made to the passage of time between the arrest and the decision to seek a second retrial by which time this appellant had served most if not all of his sentence for the Tilbury cannabis conspiracy. We are not persuaded that there is any force in this point.

We have already touched on the point that, unlike the case of Bell where, if there had been no third trialthe person who had committed a particularly violent murder would remain unidentified and unpunished, there was not in this case the same need to vindicate public justice where others had already admitted involvement and direct actual harm had not been caused to any person. In essence, however, the major considerations of the wider interests of justice have been addressed in this case by reference to the tests propounded at [46] of Bell.

Our conclusion therefore is that the Crown have failed to demonstrate that this was one of those exceptional cases which justifies proceeding to a second retrial. On analysis therefore it was not in the interests of justice for a trial to have taken place. The second retrial which did take place should not have occurred since the necessary preconditions for it were not satisfied. Notwithstanding the verdict of the jury, that is sufficient to render the conviction unsafe, and the appeal would succeed on the basis of this ground alone.

However, having granted leave, we now turn to the second ground of appeal, which complains that in a number of respects the summing up was defective. The appellant’s defence was that he was a cannabis importer who had already been convicted of another cannabis importation conspiracy taking place within the same time frame and who had been involved in discussions with his co-accused in the Portsmouth case with a view to importing cannabis. The defence submitted that the summing up was inadequately structured, particularly in a case where the Crown had proceeded largely by reference to a large amount of documentation and schedules. Secondly, the judge had insufficiently identified the issue at stake in this appellant’s case. Thirdly, the judge had misdirected the jury in relation to the appellant’s previous conviction for the Tilbury cannabis conspiracy. Fourthly, the judge had omitted to mention important evidence favourable to the appellant capable of rebutting the Crown’s case which was based on circumstantial evidence. Fifthly, the judge had been dismissive about a conversation or conversations pertaining to cannabis. Sixthly, the judge had failed adequately to explain an issue relating to the diversion of ships to Jamaica. Seventhly, the judge had unfairly dealt with evidence pertaining to a loan taken out by the appellant.

On behalf of the Crown it was urged that the summing up, though relatively brief, was sufficient. The judge had alluded to relevant issues and the documentary evidence in a way sufficient for the jury to understand the key points. A document setting out the issues for the jury had been agreed by all counsel in discussions with the judge prior to the summing up. That document was in the following terms:

“Questions for the jury

(1)

Are we sure that there was an agreement to try to import cocaine illegally into the country made between any of those named in the indictment excluding the defendant? If not that is the end of the case.

(2)

If we are sure about (1), then, are we sure that the defendant whose case we are considering was a party to that agreement? If he was not or may not have been a party he is not guilty. If yes then guilty.”

The Crown further submitted that the judge’s directions had to be seen in the light of the fact that the appellant had not given evidence at the second retrial and had made no comment in interview. The defence case as advanced therefore arose from a combination of inferences which defence counsel sought to draw from facts established by Crown witnesses in chief or in cross-examination and from documentary evidence. Accordingly the scope for the judge to develop the defence case was seriously limited by that fact. Overall the summing up was sufficient.

We deal first with the criticism that the summing up did not accurately put the issue for the defendant before the jury. We make clear that Mr Howard did not appear below, but his junior did, and it is a difficult submission for the appellant now to criticise the form of questions left to the jury when the appellant, through his counsel, had agreed to them. Of the two questions posed, the second question clearly was the crucial one, there being little doubt that the jury knowing of the guilty pleas of co-accused would answer the first question in the affirmative. The second question told the jury that unless they could be sure that a defendant was party to an agreement to import cocaine they could not find him guilty. Obviously if he was solely involved in discussions about, or an agreement relating to the import of cannabis he could not be guilty of the cocaine conspiracy.

Having considered the summing up we are not persuaded that there was a failure to identify the issue in the case with sufficient particularity not least because defence counsel had contributed to the formulation put to the jury. In the course of the summing up the judge made plain to the jury that the conspiracy alleged was one which related to cocaine rather than cannabis and that the issue was whether the appellant was party to that agreement. The judge stated that proposition more than once and indicated that unless the jury were sure that the defendant was party to the cocaine conspiracy they must acquit. The judge specifically stated that the issue was in the appellant’s case whether:

“he was part of a plan to import cocaine as opposed to cannabis. Unless you are sure it was cocaine you must acquit. If you think the agreement was or may have been to import cannabis why then your verdict must be not guilty. So in summary, it is only if you are sure, one, there was an agreement or plan to import cocaine and two, that the defendant whose case you are considering was a party to that agreement that that [sic] defendant you can find guilty.”

Given the way in which the case had been conducted and that the judge reminded the jury that counsel had mainly addressed that issue in their closing speeches we do not consider that the direction was inadequate. The judge later went on to mention that the pleas or convictions of Wilson and Heibner could only go to prove that there was a conspiracy to import cocaine and could not have a bearing on the jury’s decision as to whether the prosecution had proved a defendant’s guilt of that conspiracy.

Next we turn to the complaint that the judge was unfairly dismissive about the fact that the jury had heard a certain amount of evidence in the case relating to conversations about cannabis. Closer analysis shows that this point is misconceived. That part of the summing up relates to the judge’s summing up of cross-examination on behalf of the co-accused Chambers who had indeed been involved in conversations which appear to relate to cannabis on more than one occasion. The judge took the jury through some of the detail of that later in the summing up so that the complaint that he was dismissive cannot be sustained. In any event those conversations related to Chambers so that it does not bear on this appellant’s case.

Part of the case advanced for this appellant was that ships en route from South America could divert to Jamaica and pick up cannabis. It needs to be remembered that this appellant gave no positive evidence on the point but the issue was raised in the trial. Insofar as complaint was made about a failure to deal with this issue we are unconvinced. There was a passage where the judge reminded the jury of evidence given by a Mr Phippin which included reference to possibility for ships to be diverted. There was further evidence from a Mr Whale dealing with the topic and the judge returned to it in dealing with the evidence of a Mr Brisley reminding them of evidence that it was possible for ships to have diverted to Jamaica. We do not consider that there is anything in this ground.

There was also complaint that the judge had not fairly dealt with the fact that this appellant, who was alleged to be a financier of the operation, had taken out a bank loan for £10,000 during the period of the conspiracy. Again, whilst there was evidence of that fact before the jury, it was not supported by evidence from the appellant. The judge put before the jury the documentary evidence relating to that as well as evidence relating to a second bank account of the appellant showing he had an income in the order of £6,000 per year. True it is that the judge did not elaborate on the significance of this evidence but it must have been plain to the jury that its only purpose was to rebut a suggestion that this appellant was the financier of any proposed conspiracy. Again, we do not consider that the appellant’s case is advanced by this point.

Having dealt with those matters we move on to points which in our judgment carry greater weight. Firstly, the appellant had put before the jury his contemporaneous involvement in the Tilbury cannabis importation conspiracy. The jury were aware that it was a conspiracy which had involved importation of over 400 kilograms of cannabis and that he had pleaded guilty to that offence. The judge directed the jury about it as follows:

“It explains why Mr Burton took no further part in the alleged conspiracy after his arrest. It is all part of the background. That is all it is. It cannot by itself prove anything against the defendant. The fact he has been convicted of the offence, of course does not automatically mean that he is guilty of this offence. The fact that he has been involved in what is in effect the importation of a large amount of cannabis does not mean that he was part of this conspiracy involving a wholly different drug. Indeed, that is his case, that he is not involved in the cocaine conspiracy. So again, would you see that in perspective? You now know why you have heard all about it.”

It will be seen that the judge’s direction was framed in terms designed to protect the appellant from unfairly adverse conclusions being drawn from the fact that he had been convicted of that other matter. However, what the judge did not go on to say, or at least with any clarity, was that that conviction was relied on by the appellant positively in the sense that it tended to support his account of having an interest not in cocaine but in cannabis. The judge’s direction, particularly in the first part of the extract, is couched in negative terms rather than the positive way in which the appellant relied upon it. The appellant argues that this is a significant misdirection. It seems to us that there is some force in this. Even if it were possible to view the concluding words of the direction as implicitly referring to the appellant’s positive case it did not do so with any clarity or force.

Complaint is also made that the judge failed to mention important evidence which was favourable to this appellant. As we have already observed the Crown’s case was based on circumstantial evidence. We note that there was no direction given as to the jury’s approach to circumstantial evidence and in addition the judge failed to mention that at no stage of any meeting at which this appellant was present was there any mention of cocaine. Indeed there appears to have been no mention of any specific type of drug either by the appellant himself or by others in his presence. That is in contrast to other evidence in the case involving other co-accused. It seems to us that this was an important omission in this appellant’s case. Although those involved in illicit conversations might be circumspect, the fact remained that it was a feature of the case potentially telling in this appellant’s favour, which was not referred to. We consider that where the Crown’s case required the jury to draw inferences, this was a significant omission.

There is additionally a complaint about the overall nature of the summing up. In short it was submitted that this was not a well-organised summing up which attempted to marshal the facts for the jury’s benefit on an issue by issue basis assisting them to see the respective arguments in a concise but methodical way. Much of the evidence in the case which involved observations had been reduced to documentary form. We are told that there was a schedule of events running to 81 pages, detailing some 714 events. There were 210 pages of transcripts of police recordings. The judge took the jury through those documents touching relatively briefly on them over the course of 7 or 8 pages where the judge largely dealt with matters allusively rather than clearly spelling out issues between prosecution and defence. A flavour of his approach may be gleaned from the following passages:

“Again you will want to look and please do not look now, but you know as we go through the evidence, various dates are mentioned, various dates appear and it is interesting, you may think, to look at that to see whether it does marry up with what the prosecution say was going on. ”

Then a little later:

“So the relevant, members of the jury you may think, matter for you, is that sets the scene with regard to the schedules, the various documentation that has appeared in this case which again look at at your leisure. We will not look at it now. You know what I mean. The timetables where a particular ship was on what particular date. Does it or does it not mesh in with what the prosecution say was happening? The overheard conversations and the like. ”

Those comments were made by way of preface a little before the judge came to refer to the documents. At the end of the process the judge said:

“The last transcript is 28^th October. [Note that this is a transcript relating to Chambers after this appellant’s alleged involvement in the conspiracy had on any view terminated]. You will recall the Crown remind you that there is a reference there, towards the end of it of him working on Tuesday. Back to work on Tuesday. That may or may not mesh in with Mr Wilson’s timetable. Again look at that. But as far as the defence are concerned, they remind you that there is reference to ganja, reference to Jamaica. So those are the transcripts. I am afraid at fairly high speed members of the jury, but you have them. You must look at them. You will look at them in due course.”

The evidence in the trial had taken a little over three weeks. It had largely been concerned with the content of the documentary material which had been summarised in the way we have described. We consider that in this appellant’s case there is considerable force in the complaint that the summing up failed properly to adopt a structure which would assist the jury in resolving the issues and that by reason of the paucity of analysis or assistance given to the jury with the documentary evidence they were not given the help to which they were entitled and thus the summing up was defective.

In this context we have had regard to the decision of this court in R v Singh-Mann and Others [2014] EWCA Crim 717 and in particular paragraphs 84 to 92 and 118 to 120.

As we have identified above, in the case of this appellant there are a number of unsatisfactory features of the summing up. We have come to the conclusion that taken together quite apart from our conclusion on ground 1, they would have led us to conclude that the conviction recorded in this case was unsafe.

For the reasons given in this judgment, we hold that the conviction was unsafe. The appeal is allowed and the conviction is quashed.