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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Murray & Ors, R. v [1996] EWCA Crim 315 (10 May 1996) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1996/315.html Cite as: [1996] EWCA Crim 315, [1997] 2 Cr App R 136

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		10th May 1996

LORD JUSTICE OTTON: These three appellants were convicted in the Crown Court at Chester as follows:

Murray to Counts 1 and 3 alleging conspiracy to possess heroin with intent to supply and Count 2 being concerned in offering to supply heroin. Morgan and Sheridan were each convicted on Count 3.

Their co-accused included Lawton, who had absconded whilst on bail and was not present during the trials. He subsequently changed his plea to guilty to Count 2. McDonald had previously pleaded guilty to Count 3.

All three appellants appeal against conviction by leave of the single judge.

In order to understand the thrust of the appeals the factual background must be stated in some detail.

Count 1.

It was the prosecution case that a conspiracy to supply heroin involving Black and Crockett, who had pleaded guilty, and unknown people in London who supplied Black with 3 kilos of heroin, of which he was in possession when he was arrested at Runcorn Railway Station on his return from London on 28th February 1993. The Crown maintained that Murray was party to this conspiracy. The case against the appellants consisted to a large extent upon police surveillance operations.

On 11th February, Murray's wife drove him from his home in Wilmslow, via the M6, to a commercial estate in Newton-le-Willows. He got into a Fiesta car and was driven to Crockett's home in Walton. He called at Crockett's house and the two were driven off and seen to call at various addresses. Crockett behaved suspiciously during the journey. They stopped at a cafe in Liverpool and Murray drove off alone in the Fiesta. About a fortnight later Murray drove to Liverpool at great speed on the motorway and changing lanes at the last minute as if to prevent anyone following him. In Liverpool he drove twice round a roundabout, looking all around as he did, and then went to Crockett's house. He drove off with Crockett and a woman in the car to Black's house. Black was not in and they drove on to Runcorn railway station. Murray and Crockett went into the station foyer. Black was there and he and Crockett got on the train to London leaving Murray behind. Police officers on the train saw that Black had a large wad of notes and a bag containing a large amount of money. In London he went to a public house, carrying the bag, and made a telephone call. They were observed moving between Euston and Kings Cross Stations and in conversation with someone in a BMW and an Asian male.

Crockett and Black spent that night at an hotel near Euston booked in a false name, from which two telephone calls were made to Murray's home. Next morning, the two men were seen meeting various people in the Kings Cross area. Crockett made a number of telephone calls, including one overheard by a police officer in an adjoining kiosk when he said: "Tony it's Dennis." She heard him say that they were being "mucked about", that money had been handed over with nothing to show for it, and that the deal was being switched again. He seemed to be asking "Tony" - who the prosecution suggested was Murray - for directions. He said that he would check the package before leaving. Black was seen receiving a plastic bag from the Asian male in a carpark. It was not in dispute that the bag contained heroin and that Black took it on the train back to Liverpool and was arrested with it at Runcorn station.

Count 2.

The prosecution alleged that between 25th August and 7th September 1993 Murray and Lawton were concerned in offering to supply heroin to an undercover police officer, Sergeant Cooper. On 25th August a police informant made contact with the police. As a result, two officers parked their car opposite an hotel in Liverpool. Lawton came up to the informant's window. There was an exchange of hands and Lawton walked off. The informant handed to the police a small plastic bag of brown high purity heroin.

The next day the informant telephoned Lawton from the police station, the call being tape-recorded. He said that his boss was there and put one of the officers on to talk to Lawton. The officer said that he was "happy for two -- there's like 26,000 miles on the clock -- for one?--" Lawton said that "26" was the price and two were definitely available. The officer asked if the cars were good and was told: "You can get 150,000 miles out of each engine." The officer gave evidence that the word "engine" was the usual code for heroin on the telephone. The officer referred to it as having been "great gear" the night before, and was told that this was the same. He said he would have "a pack of cards, 52, to-morrow," and they arranged to meet. On the following day the officer and Lawton again spoke on the telephone and arranged to meet at the home of McDonald. The officers kept observation with a video camera, while Sergeant Cooper, with another officer, met Lawton. Lawton said that he did not have the "engines" with him as he was having problems getting in touch with his boss. Cooper said he had come from Preston with all the money, and the consortium he acted for would not be happy. He wanted to proceed that day. He asked if they were still heroin, and Lawton said: "Yes, two kilos of brown good stuff." Cooper showed him the money in the boot of the police BMW. Lawton asked if he could buy the BMW. Lawton said he would try to obtain the "gear" but it was out of his hands. He made a telephone call, went off for a while and said that the "gear" was not available yet but would be at 10am the next day.

The next day, Lawton got in touch with Cooper and said the deal was off. However, a few days later Lawton got in touch with Cooper, who said he was passing him on to his boss. A voice Cooper did not recognise said: "I can do you one at £26,500, two at £26,000." Cooper said he needed time to get his "pack of cards" together. The man said he was going to Wales and spoke to Lawton. Lawton, in the background, said: "Tell him the cars are brown." Later that evening Cooper and Lawton spoke and Lawton said: "I'll have them, the two, at £26,000." They arranged to meet at the same place.

The day before they were due to meet, Cooper was paged and telephoned Lawton, who said he was reducing the engines to one, at £26,500. The cars would be brown. At about 11 am on 6th September Cooper telephoned Lawton to confirm that the deal would go ahead. Police officers again kept observation and the scene was recorded on video tape. From 11.45 am Lawton and Murray were observed walking about in the vicinity of McDonald's home, as if checking it. They once stopped and spoke together. At noon Lawton joined Cooper and another officer and said that the deal was on but he had to see his boss. He went off and when he returned he said that his boss wanted the deal done elsewhere. The officer refused. Lawton walked away and returned a few seconds later. The appellant Murray then joined them. The officers introduced themselves and asked if they "were on." Murray said: "Maybe." The four of them walked towards a Renault motorcar in which Murray had arrived. Lawton asked Murray if the gear was there and Murray said: "No, not yet," and got into the car. Lawton seemed upset and moved away. A red Ford Escort then arrived. Murray spoke to the driver and then said to Cooper: "Do you want a tester?" Cooper indicated that he did and Murray told him to get in the car. Cooper refused and Murray said: "It's off." Cooper agreed that it was off and returned to his car (which was not the police BMW on this occasion). Murray and Lawton drove off in the Renault and the red car also drove off.

Count 3.

At trial it was accepted that there was a conspiracy to supply heroin involving, among others, the co-accused McDonald, who was arrested in the early hours of 8th January 1994 as he returned from London bearing 3 kilos of heroin. He had pleaded guilty. The prosecution maintained that these appellants, Murray, Morgan and Sheridan, were party to this conspiracy.

There was evidence of police observations kept from mid-September 1993 onwards, mostly of Murray and Morgan, at various places, including the Jolly Miller public house and driving about in different cars.

On 8th October, McDonald, in a black Orion, broke down on the M6 near Coventry, driving in the direction of London. He paid the person who towed him into the service station £65 in cash from a large wad of notes. Five days later McDonald arrived at Piccadilly Station, Manchester, off the Liverpool train. He made, and received, a telephone call and, after a while, was met by Murray, who had arrived in a VW Golf. There was then further evidence of police observations on Murray, Morgan and McDonald, on various dates up to the end of November.

On 29th November those three were at a car auction. Morgan was talking to Murray. They were seen looking across at, and nodding towards, a person who turned out to be another police officer. Murray immediately went across, engaged the officer in conversation and shook his head towards Morgan. There were then various to-ings and fro-ings by the three men and eventually they drove off in separate cars.

On 4th January 1994 Morgan and Murray were at Wilmslow Station. Murray made, and received, a telephone call. He was then observed to dial a London number and say that he would be at Euston at 10 am. He and Morgan arrived together at Euston, went out of the station, got into a Mercedes, registration number 193 TF (belonging to one Tony Florenzo) and were driven off.

Three days later Inspector Burgess was in the Jolly Miller a few feet away from Murray, Morgan and McDonald. What was observed and heard on this occasion plays a prominent part in this appeal. According to Inspector Burgess, Murray said to McDonald: "Have you got your licence, you cunt. You've got to go down tonight," or words to that effect. McDonald seemed to show him something. (Morgan, in evidence, was to agree that there had been a conversation between those two about McDonald having a driving licence.) At about 2.45 pm the three of them went to a car hire place and Murray hired an Astra for McDonald, paying £95 in cash. The woman who completed the documents said that Murray told her that they wanted a vehicle suitable for motorway driving. The Astra was then taken to the Jolly Miller.

At about 3.20 pm Murray and Morgan drove in the hired Astra from the Jolly Miller to Sheridan's house. Sheridan arrived and the three of them went inside. Then McDonald arrived in a Mazda. A minute or two later he collected something from the Astra boot, then drove off in the Mazda. A few minutes later Sheridan and his son drove off in the Astra. At 3.53 pm Murray and Morgan came out of the house and spoke to McDonald who had returned in the Mazda. At 4.05 the three of them were in a telephone kiosk. At 4.15 pm Sheridan returned and Murray, Morgan and McDonald drove up in the Mazda. They went into the house. At 4.25 pm Morgan and Murray left in the Mazda and shortly afterwards McDonald drove off in the Astra.

McDonald was seen to drive to various places and at about 6.30 pm, still in the Astra, he drove to London, being followed all the way. He stopped in the Finchley Road at about 9.30 pm and made three telephone calls. Eventually, the Mercedes 193 TF arrived. McDonald got into it and had a brief conversation with the driver and then, in the Astra, he drove off, following the Mercedes. The police then lost sight of him but 1 hour 46 minutes later the Astra was seen on the M1, near the Newport Pagnell Service Station. McDonald was arrested at Knutsford Service Station with 3 kilos of 70 per cent pure heroin and a small packet of it. The prosecution maintained that he must have collected the heroin after he drove off following the Mercedes.

Murray, Morgan and Sheridan were arrested shortly afterwards. Murray and Morgan when interviewed declined to answer questions. Sheridan's house was searched where they found a set of electronic scales with traces of heroin and paracetamol on them, and a box which had contained 1,000 plastic bags, of which 600/700 were left. The prosecution maintained that Sheridan's role was to divide, weigh and package the heroin the subject of the conspiracy. When interviewed Sheridan admittedly lied, in that he said that he did not know McDonald; that he last saw Morgan, his brother-in-law, on Christmas Day; and that he had not seen Murray, a friend, for a very long time. In particular, he denied that those three had been at his house on the previous day. He said that the scales and plastic bags were used by his wife for cooking and freezing.

The Defence Case.

Murray and Morgan both gave evidence. Sheridan did not, nor did he call evidence on his own behalf. Murray and Morgan had known each other for a long time and had often met. Their meetings were social and had nothing to do with drugs. They were also both involved in second-hand car dealing. They did not have an affluent lifestyle and nothing at all incriminating had been found at their homes. It was agreed that Murray associated with both Crockett and McDonald but the fact that they were now shown to have been drug dealers did not mean that he had known that, or that he had participated in any of their activities.

As regards Count 1, Murray denied the police account of his driving to Crockett's house in the manner of one who was anxious about being followed. Various other aspects of the police observations were also challenged. When they drove to Runcorn station there were in the car, apart from him and Crockett, his daughter and her fiancee. At the station he got out of the car and said goodbye to Crockett, but he did not go into the station. His daughter then dropped him home and borrowed the car. Murray had not been at home on either occasion when Crockett telephoned from London. His wife took a message, which was about the bringing back of his car. As regards Crockett's telephone call from Kings Cross to "Tony", he could have known a number of Tonys and it could not be shown that he was telephoning Murray.

As regards Count 2, as far as Murray was concerned, the whole transaction concerned his buying a new shape BMW series 5 from Sergeant Cooper, and offering the XR3i or RS Turbo in exchange. Lawton, who sometimes introduced potential customers to him, had telephoned him about this deal and arranged the meeting. Murray denied checking the area first, or having a brief meeting with Lawton, or wanting to change the venue. He explained his movements on arriving at McDonald's house. He met the two men and Lawton. He asked about the BMW and Lawton pointed to an old one. There was an argument between Lawton and the men. Murray asked them if they wanted the RS Turbo, which would be there shortly. Nothing was said about how much they had or drugs. As far as he was concerned, it was a car deal. He was, however, concerned about the men's attitude and when the RS Turbo arrived, he warned the driver. He said to the two men: "If you want to test it, get in it" - not - "Do you want a tester?" One of them became abusive and wanted to drive it. Murray would not let him and they went their separate ways. Neither Murray's Renault nor the RS Turbo was followed, showing that the officers must have realised that Murray was offering a car deal and nothing else.

As to Count 3, none of his actions relied on by the prosecution had any connection with drugs. At the car auction Murray had a normal conversation with the police officer in case there was a possibility of a deal. He made no sign to Morgan. Murray and Morgan went to London on 4th January to meet Tony Florenzo, a friend of Murray's with whom he had had various dealings in the past. Morgan was interested in buying Florenzo's car but they could not agree a price. Murray denied that when he, Morgan and McDonald were in the Jolly Miller on 7th January, there was any conversation about McDonald's licence. McDonald was pestering him about a car to use that day (his Peugeot was giving trouble). It was something to do with visiting someone or his mother. Murray hired the car for him. He did not know if he would be driving on a motorway or where he was going. Morgan said that he gave them a lift to the car hire place but did not know why the car was wanted. The visit to Sheridan's home was a social one. Morgan wanted to visit his sister, Sheridan's wife, and his 21 year old daughter who lived there and Murray went with him as Morgan was giving him a lift home. They made a telephone call from the public kiosk because Mrs Sheridan was using the telephone in the house.

In the event, the jury convicted all three men.

The Appeal of Murray.

The first two grounds of appeal concern a refusal by the trial judge of a defence application to exclude the evidence of Crockett's telephone call to "Tony" from Kings Cross on 28th February 1993. The judge ruled:

"I do not consider that this evidence does stand in isolation, when considering the objection that is made. Mr Griffith-Williams (Crown Counsel) points out what he puts forward as the connecting links: the meetings before, the taking to Runcorn and so on, the phone calls from the hotel in London to Murray's phone number. No, I shall not exercise my discretion in favour of the application, the evidence may be given."

Mr Ian McDonald QC, on behalf of Murray, submitted that the judge erred and wrongly permitted the prosecution to adduce this evidence in that:

"(a) there was no evidence as to the number rung by Crockett or indeed whether the call was a long distance one,

(b) the call was partly overheard because of the noise of traffic, and

(c) it by no means followed that the "Tony" being spoken to was necessarily the appellant.

As for ground 2, leading counsel, in the alternative, submits that the judge erred and wrongly exercised his discretion under section 78 of the Police and Criminal Evidence Act in admitting the evidence. Having regard to all the circumstances, in particular the overwhelming prejudicial effect of such evidence and the obvious limitations upon the cross-examination thereof, it was capable of (and did have) such an adverse effect upon the fairness of the proceedings that the judge should not have admitted such evidence.

We cannot accept these submissions. It was conceded in argument that the evidence was admissible to prove the conspiracy. The defence did not object to the prosecution opening this evidence to the jury. Thus the trial judge was invited only to exercise his discretion under section 78 of the Police and Criminal Evidence Act. Even though the witness had heard only part of one side of the conversation and did not know what number had been dialled, the judge was correct in holding that the evidence had to be considered in context. There was clear evidence of association between Murray and Crockett on 11th February when he collected Crockett from his home and took him to Runcorn Station for his journey to London, and of telephone calls from the hotel occupied by Crockett and Black to Murray's home. We are satisfied that there are no grounds for setting aside the judge's exercise of his discretion.

Grounds 3 and 4 concern an application on behalf of Murray to exclude evidence which the Crown sought to call on Count 2, namely Lawton's telephone conversations, and the small packet of heroin handed to the police by the informant which allegedly came from Lawton. The judge refusing the application said:

"There does not seem to me to be any conflict between counsel -- on the principles of all which I have to apply. -- Those principles are conveniently set out and referred to in the 1995 edition of Blackstone at paragraph 16.52 -- I am satisfied, having heard the arguments on both sides, that there is here independent evidence of the existence of the conspiracy alleged in Count 2 and the involvement in it of Murray -- I am further satisfied that there is evidence that the acts, statements of the absent defendant Lawton was in the course and in furtherance of the common purpose of supplying heroin. In my view, the decision last year in the Court of Appeal in Regina v. Liggins and others is in no way in conflict with those basic principles -- I am satisfied that the evidence is admissible and I further exercise my discretion in favour of the Crown that, albeit -- the evidence is prejudicial, it is not, in my view so prejudicial that it outweighs its probative value that I should exclude it."

Mr McDonald submits that the judge erred and wrongly admitted the evidence of the telephone conversations and other discussion with the co-accused in the absence of the appellant. This was inadmissible because:

(a) it was hearsay, and

(b) there was no independent evidence of conspiracy or joint enterprise or of the appellant's part in it.

In support of this argument he relies on the commmentary in Blackstone, and the decision of this Court in Regina v. Gray, Liggins and Others (1995) 2 Cr.App.R 100 to which the learned judge referred.

In the alternative, Mr McDonald submits that the judge erred and wrongly exercised his discretion under section 78 of The Police and Criminal Evidence Act. Having regard to all the circumstances, in particular the appellant's inability to mount any challenge, it was capable of having (and did have) such an adverse effect on the fairness of the proceedings, that it ought to have been excluded.

Leading counsel advances a similar argument in support of grounds 5 and 6. Here, it is averred that the judge erred in ruling that the Crown should be permitted to adduce evidence relating to the small wrap of heroin (exhibit 30) which had been handed by the informer to the police on 28th August 1993 shortly after a meeting with the co-accused Lawton when:

(a) Lawton had absconded and the informant was not called by the Crown to give evidence; and

(b) the admissability of such evidence otherwise depended upon the subsequent telephone conversation with Lawton in the absence of the appellant and which in itself was inadmissible because it was hearsay and there was no independent evidence of conspiracy or joint enterprise.

In the alternative, leading counsel submits that the judge erred and wronging exercised his discretion under section 78 of the Police and Criminal Evidence Act in admitting this evidence; it had such an adverse effect on the fairness of the proceedings that it ought to have been excluded.

It is true that the evidence of the telephone conversations and other discussions with the co-accused Lawton was hearsay but prima facie the evidence was relevant and admissible as an exception to the hearsay rule on the basis of the following.

One starts with the statement of principle in the current edition of Archbold 48, as follows at chapter 15, paragraph 357 under the heading "Principle":

"The acts and declarations of any conspirator in furtherance of the common design are admissible in evidence against any other conspirator and this principle applies when the charge is one of a crime committed in pursuance of a conspiracy, whether the indictment contains a count for conspiracy or not, see cases cited...."

The editor then refers to the well-known statements of principle in Phillips' 'Treatie on Evidence' (1820) 4th edition pages 96-100. The editor then continues:

"In R v Walters 69 Cr.App.R 115, 121, CA, in which the following direction was approved:

'First of all, what the conspirator said or did, in furtherance of the common object, or common agreement, is evidence against all the rest of the conspirators. That is to say, you can consider those acts and declarations, as I have said, things said. You can consider those against them all, either before you have decided that there is an overall conspiracy - and in order to decide that point - or after you have decided there is an overall conspiracy - if you do so find - and when considering whether any particular defendant is within that conspiracy, provided that you do consider both of those aspects and you do find there is a conspiracy in the end.'

In R v Donat 82 Cr.App.R 173 CA it was held that where a defendant is alleged to have been party to a common purpose, documents made out and actions done in furtherance of that common purpose by persons other than the defendant may be admissible in evidence against him, provided there was other evidence of common purpose --------

Walters and others and Donat were considered in Regina v. Governor of Pentonville Prison, ex p Osman (1990)] 1 WLR 277 DC, where Lloyd LJ, giving the judgment of the court, said that the extract from the judgment in Walters.... 'might seem to suggest that the evidence of a conspirator is admissible to prove that a particular defendant is within the conspiracy without independent evidence to that effect.' The Court concluded that this could not have been the meaning approved by the Court of Appeal, otherwise the court would not have gone on to treat the passage as being in line with the following extract from Phipson on Evidence, 13th edition, 1982, para. 8-15. 'But the acts and declarations of other conspirators, before any particular defendant joined the association, are only receivable against him to prove the origin, character and object of the conspiracy, and not his own participation therein, or liability therefore... (See now para. 22-11 in the 14th edition, 1990)."

Those passages must now be read in the light of the decision of the Court of Appeal in Regina v. Gray, Liggins, Riding and Rowlands to which the trial judge was referred.

The circumstances of that case were as follows:

"The appellants were employed in various capacities by a number of financial institutions. They stood trial with another man on counts alleging separate substantive offences."

It is to be noted there was no conspiracy count in the indictment.

"The evidence adduced by the prosecution included transcript of telephone conversations between the appellants..."

They were convicted.

"They appealed against conviction on the grounds inter alia that the judge had wrongly admitted evidence on all the counts left to the jury against all the appellants and that he had failed to direct the jury to disregard evidence which was inadmissible because it was evidence of conversations which were admissible only against the parties to those conversations and not against any other person.

Held, allowing the appeals, that there (1) there was no doubt that, where a defendant was charged with being a party to a conspiracy, evidence of acts done or statements made by a co-conspirator in furtherance of the conspiracy was admissible against him even though he was not present at the time, provided it was proved that there was a conspiracy to which he was a party. (2) When a conspiracy was not charged the principle that where two persons were engaged in a common enterprise, the acts and declarations of one in pursuance of that common purpose were admissible against the other, applied to the commission of a substantive offence or series of offences by two or more people acting in concert; it was limited, however, to evidence which showed the involvement of each defendant in the commission of the offence or offences. (3) Even if the principle was wider than that, the prosecution would have to make clear the nature and limits of the agreement in pursuit of which the specific offences were alleged to have been committed. The ... case related to a number of separate substantive offences, each charged against one person, but alleged by the prosecution to have been committed in pursuance of some general scheme or agreement. However, no sufficient attempt had been made to formulate to the judge or to the jury the terms of the common enterprise to which all four appellants were said to have been a party. ..... The Crown's allegation of 'network' alleged not one network but two, involving different combinations of the appellants and yet the jury were directed as if all the evidence of 'network' was admissible against all of the appellants. ...... The judge was in error in allowing the record of all .... conversations to be admitted in evidence against all the appellants on all counts without any direction as to which parts were admissible in respect of the individual appellants. Although some parts of the conversations were admissible against the individual appellants a clear direction should have been given as to which parts of the evidence on each count so applied."

In the course of the judgment of the Court, Glidewell LJ referred in extenso to Tripodi v R (1961) 104 CLR 1, and in particular the authoritative judgment of Dixon CJ. That decision has excited some comment from academics and others (see, in particular, the commentary by Professor Smith in [1995] CLR 45).

The most helpful for the purposes of this appeal is to be found in the latest edition of Blackstone at Chapter F, paragraph 16.52, under the heading Statements in Course or Furtherance of Common Purpose.

"The rule that the acts and statements of one party to a common purpose may be evidence against another is particularly associated with charges of conspiracy. However, it is not confined to such cases, and applies to other offences where complicity is alleged."

There is then a reference to earlier authority.

"The limits of the doctrine were recently considered in Gray [1995] 2 Cr.App.R 100. G and others were each convicted of offences relating to insider dealing. Although there was alleged to be a "network" between them for the passing of information, each allegation related only to an offence committed by one of them alone. ....

The Court of Appeal was inclined to the view that this stated the principle too widely; the acts and declarations of a person engaged in a joint enterprise and made in pursuance of that enterprise might be admissible against another, but only where the evidence shows the complicity of that other in a common offence or series of offences. As none of the offences was alleged to have been committed jointly, the rule did not apply. If, contrary to that view, the principle could be stated in the wider form, the prosecution would have to make clear the limits of the alleged agreement in pursuit of which the specific offences were said to have been committed; as this had not been done the appeals were allowed. Thus it appears that the case for a wider principle could still be made.

The rule permits the actions and declarations of one party, A, to be used in evidence against the other, B, and is thus an exception to the general rule that B is not to be prejudiced by the acts of statements of another, and an exception to the hearsay rule insofar as it may involve reliance on A's statements as evidence of their truth. As an exception to the hearsay rule it defies classification, some writers regarding it as appertaining to the res gestae ..... others as based on implied agency ....... and others as an independent exception, the justification for which is that such evidence must be used if the 'secret' crime of conspiracy is ever to be proved at all......

In order for the act or statement of A to be admissible against B, the rule requires:

(a) that the act or statement of A must be in the course and furtherance of the common purpose; and

(b) that independent evidence be adduced of the existence of the conspiracy and the involvement in it of B."

There is a further commentary in the latest supplement to Archbold at 33.58.

With those principles in mind, we turn to consider the Crown's case against Murray in this regard. It was that Lawton acted as the intermediary of Murray. This was borne out by such evidence as:

(1) A telephone call from the informer on 25th August to the police which led to the observed meeting between the informer and Lawton at which a small amount of heroin was passed to Lawton. The Crown relied upon the evidence of the content of the telephone call to prove only the subsequent conduct of the police officers.

(2) on the following day there was a further phone call from the informant to Lawton during which the

police officer was introduced to Lawton as to the informant's boss and Lawton referred to the heroin sample of the previous day and arranged to supply the officer with 2 kilos of heroin.

(3) There was a further telephone call on the following date to arrange the meeting at McDonald's house and meetings did take place between the two officers with Lawton at McDonald's.

(4) On the following day there was a phone call from Lawton to the police to say the deal was off.

(5) A telephone call by the informer to Lawton on 1st September, during which Lawton expressed his continuing interest in selling heroin to the undercover police officers.

(6) A telephone call on 4th September from Lawton to the police, during which Lawton introduced the police officer to his boss (at that stage unidentified) and an offer was made to supply heroin with calls later that day and on 5th September to Lawton to finalise the arrangements.

(7) On 6th September there was the meeting with both Lawton and Murray.

Seen against that background, we are of the view that, having studied the judgment in Gray and Others with the greatest of care, it is authority primarily for the proposition that the common law exception cannot be extended to cases where individual defendants are charged with a number of separate substantive offences and the terms of a common enterprise are not proved or are ill-defined. We do not accept Mr McDonald's argument that dicta in the judgment of Glidewell LJ does in fact narrow the common law exception. In reaching that conclusion, we have very much in mind the commentary of Professor Smith in that regard, to which reference has been made.

Thus, approaching this case, we are satisfied, on this analysis of law and of fact, that the acts and declarations of Lawton were clearly in the course and furtherance of the common purpose. The proof of the conspiracy did not depend upon this evidence. Nor did the proof of a joint enterprise depend upon this evidence to which objection is being taken. There was other evidence from which the jury could safely conclude that there was either a joint conspiracy or a joint enterprise and the involvement of Murray in it. The telephone call on 4th September with Lawton's boss must have been Murray. There is a reference to Wales and the attendance of Murray on 6th September. It was a matter for the jury whether they were prepared to accept that it was another person who happened, by coincidence, to be going to Wales. If the jury accepted the evidence of the police officers and the video recording the acts and declarations of Murray at the meeting of 6th September it clearly pointed to the joint enterprise and the involvement of Murray and this was wholly independent of the evidence to which the exception is taken.

Finally, in our view, there can be no criticism of the judge's exercise of his discretion under section 78. We do not consider that Murray was at a grave disadvantage in not being able to challenge the conversations to which he was not a party or that the defence could not explore the evidence of how the small package of heroin was handed over. The jury had tape recorded evidence of such telephone calls and saw the video filmed evidence of the meetings. We do not consider that the admission of any of this evidence amounted to unfairness or that the judge wrongly exercised his discretion in admitting it.

Turning to ground 7 of Murray's appeal, which also forms the basis of Morgan's appeal, ground 1. It concerns Count 3, and it is said that the judge erred in his summing-up and misdirected the jury when dealing with the disputed and critical evidence of Inspector Burgess in the Jolly Miller public house of the alleged remark by the appellant to the co-accused McDonald: "Have you got your licence -- you're going down tonight" by effectively inviting the jury to consider how the police, or Inspector Burgess, would have known of any trip unless Inspector Burgess had heard it from the appellant's mouth.

The passage to which exception is taken reads as follows:

"Members of the Jury, the prosecution submit to you, -- this was the day of the final arrangements for the collection in London of 3 kilos of heroin. That conversation, they submit to you, is -- of crucial importance and crucially significant. 'Have you got your licence?' You must have a licence to hire a car. 'You're going to London tonight.' It was known that the Peugeot was playing up. The prosecution say, obviously, another car would be needed. They couldn't chance another breakdown on the M6 or the M1.

On that date, at that time in the afternoon, you will no doubt consider this, --. How many of the police officers had known about any trip to London or about hiring a car at that stage? -- But the fact is that at 3.10, -- the Astra did arrive. It was hired and did arrive at the Jolly Miller, and you know that it was in that Astra that McDonald later went to London.

You decide,-- It was not suggested that Inspector Burgess misheard about going to London but he is making it up and lying. In all cases, as I have told you so often, -- it is for you -- to decide where the truth lies."

Mr McDonald submits that this amounted to a mis-direction and a material irregularity in the course of the trial in that:

(a) it had not been a point the Crown had ever sought to advance,.

(b) the evidence plainly demonstrated that McDonald was the specific target of police observations on that day,

(c) there was no evidence that the police were ignorant of McDonald's trip to London.

(d) given the Public Interest Immunity aspects of the case, it was not possible to speculate and the judge should not have invited the jury to speculate on what police intelligence had or had not been gathered about McDonald's pending trip.

Mr Spencer, leading counsel on behalf of Morgan, avers that the judge erred effectively inviting the jury to believe that evidence on the basis that the police could not otherwise have known that McDonald was to go to London that night. There was no evidence that this was the case and the prosecution had not advanced the point. Leading counsel submits that the test suggested by the judge of his own motion was one designed to bolster the credit of Burgess and necessarily to undermine that of Morgan. The test was a misdirection.

We are satisfied that there was no misdirection or error in the summing-up. It is true that the prosecution had not made the point but it was nevertheless a permissible comment on the evidence which the jury had heard. Mr Burgess had told them that he wrote his note of this conversation immediately after he returned to his car. This would have been before Murray, Morgan and McDonald went to collect the hire car. In deciding whether this was true, the jury were entitled to take into account that it was supported by the unchallenged evidence of the witness from the car hire company and by the evidence of the appellant Morgan who confirmed that there was a conversation between Murray and McDonald about a driving licence. Thus there was evidence from which the jury could have drawn the inference that the purpose of the conversation was to check whether McDonald was in possession of his driving licence in preparation for hiring the motor car which was to be used for the journey to London. Accordingly we can find no substance in that ground.

In Ground 8 of Murray's appeal leading counsel submits that the judge erred in summing up in that he failed to direct the jury that the interviews of the co-accused Sheridan (in which he had plainly lied about the appellant and had attempted to distance himself from the appellant on a critical date) were not evidence in the Crown's case against the appellant Murray. Sheridan had not given evidence and therefore no evidence to contradict or explain such lies was given or investigated.

A similar ground is advanced on behalf of the appellant Morgan and it is more convenient to deal with this under Morgan's appeal.

This is contained in his second ground and adopts the basic submission of Mr McDonald on his ground 8, and further avers that the judge ought to have, but did not, direct the jury that the replies of Sheridan did not constitute evidence in the appellant Morgan's case and could not be considered when deciding the question of his guilt or innocence. Such a direction (while always obligatory) was particularly called for on the facts of this case because the Crown cross-examined Murray on the basis of asking him to account for Sheridan's lies. The Crown attempted to cross-examine Morgan on Sheridan's lies but objection was taken by leading counsel before the jury on the basis that they were not admissible against Sheridan and therefore cross-examination of them should not be permitted. The Crown attached importance to the lies as evidence of Sheridan's guilt. A direction to this effect was particularly called for as Sheridan had not given evidence.

Leading counsel further contends that the effect of the non-direction was that the jury may well have thought that the credibility of Morgan's evidence (that the meetings at Sheridan's home were of an entirely innocent character) could be tested by Sheridan's false denials that they had taken place at all. The effect of the non-direction on lies was compounded by the judge when dealing with Sheridan's case when he did not give a Lucas type direction.

We are of the opinion that no legitimate criticism can be made against the prosecution in raising the subject of Sheridan's lies in the cross-examination of either Murray or Morgan. Their cross-examinations occurred before the case of Sheridan and we accept, and it is not suggested otherwise, that the prosecution had no reason to believe that Sheridan would not be called. Indeed, it is surprising to us that he was not. It is clear that the purpose of this cross-examination was to prove that Sheridan was in fact lying when he said, for example, that he had last seen Morgan on Christmas Day, whereas the video evidence showed this to be untrue. He had seen him the day before. The lies did not prove anything against either of the two appellants. Indeed, the appellants did not deny the truth of the lies but sought to explain why they happened to be at Sheridan's house. Thus, we are satisfied that the principle expressed in R v Windass (1989) 89 Cr.App.R 258 and R v Lobban (1995) 2 All ER 602 (and in particular the dictum of Steyn LJ at 614) has no application to the facts of this case.

It is a matter of regret that the judge did not give an emphatic and clear direction that the content of Sheridan's interview could not be considered in the case of either Murray or Morgan. As Goddard CJ said in R v Gunewarden (1951) 35 Cr.App.R 92:

"It is the duty of the judge to impress on the jury the statement of the prisoner not made on oath in the course of the trial is not evidence against the other and must be entirely disregarded."

As Mr Spencer pointed out, from experience, applications for separate trials are met with an assurance that the jury will be given and will heed and act on a direction not to take into account out of court statements made by a co-defendant. We consider that the judge should have given a direction to this effect. However, the out of court statements did not directly incriminate either Murray or Morgan. The prosecution only relied upon them to prove Sheridan's guilt in the sense that he lied in order to conceal the fact that he was a co-conspirator and to distance himself from Murray and Morgan. The judge, in any event, properly directed the jury that they had to consider the case of each defendant separately. He dealt with Sheridan's case separately, and indeed on a different day altogether. Finally, the judge made it clear that his lies were relevant only to Sheridan's case. Having reminded the jury of the content of the lies and the contradictions from the video evidence, he said:

"The prosecution submits to you that this again is indicative of the guilt of the defendant (ie Sheridan). Mr Alexander in his closing address to you yesterday, said to you that lies, leaving aside for a moment the question of whether he knew the name as opposed, as it were, to the face of McDonald, leaving that out, clearly it is accepted hat he lied both about his last seeing Morgan, last seeing Murray and about their being there."

Set against this analysis, we have to consider whether this omission, regrettable as it was, was sufficiently material so as to render the conviction unsafe. We are unable to conclude that it was. The above analysis indicates that it was not as crucial to the case as it usually is. Furthermore, we have no reason to believe that if such a direction had been given that there is any likelihood that the verdict would have been any different for either Murray or Morgan. There was abundant evidence of association between the three appellants and the other defendants which made the case against each of these defendants a very strong one. In particular, the video film evidence must have told its own story to the jury. So far as Murray and Morgan were concerned, Sheridan's lies must have paled into insignificance. The jury could not have reasonably have thought that Sheridan's lies were capable of implicating either Murray or Morgan any more than the overwhelming evidence already did. We dismiss the appeals of Murray and Morgan.

The Appeal of Sheridan.

Mr Marc Leon, on behalf of Sheridan, advanced three grounds in his Perfected Grounds. He did not pursue ground 1, that the judge erred in ruling that there was no case to answer. This was a realistic decision on the part of counsel. His main ground centred on his submission that the judge failed to properly direct the jury as to how to treat Sheridan's lies in interview. The judge erred in failing to direct the jury in line with the Court of Appeal's decision in R v Lucas [1981] QB 720 at 724. The judge should have emphasised that the defendant's lies must be a realisation of guilt and a fear of the truth and that the jury should have been told that this was a case when the defendant could have lied out of shame, a wish to conceal others' disgraceful behaviour or his own family's disgraceful behaviour. The judge went to great lengths to deal with the contents of the interview but did not assist the jury to explain the potential reasons for his lies. Thus, the position left to the jury was not a complete one.

The judge dealt with the matter thus. Having set out the lies and directed the jury that the accused was under no obligation to go into the witness box to give evidence and further directions on this aspect, he continued:

"Mr Alexander (leading counsel for Sheridan) went on to say, 'But you have heard what he said to the police. He has nothing to add.' Well, members of the jury, what he said to the police is admittedly in very many respects lies. 'He has nothing to add', is how it was put. The fact that he has given no evidence of course means that the evidence given concerning him by the prosecution is uncontradicted by any evidence coming from himself. It is suggested there may be different or many explanations for lying. Well you have not heard any explanation. You have not heard of anything or any explanation for the presence of heroin and paracetamol on the scales. They were used, he said, by his wife for cooking. That is what he said to the police in his interview."

Undoubtedly, it would have been desirable if the full Lucas direction had been given, particularly that part of the summing-up which was devoted to directions on the law. However, the obligation to do so was not absolute in this particular case, where the defendant had not gone into the witness box to give any of the explanations in the Lucas situation. No doubt if he had the judge would have reminded the jury of the explanation and left the issue to them. Consequently, we do not think that it was a material misdirection not to give the full Lucas direction in these circumstances. When analysed, the reiteration of leading counsel's argument in his speech to the jury was, to all intents and purposes, equivalent to a Lucas direction. It suggests what the motivation for telling lies might have been but in the absence of any evidence from the defendant to back it up a positive case could not be put forward by counsel, or indeed by the judge. Similarly, the judge could not have put it any higher and could only have suggested the possibilities. He could only have put it higher with the benefit of what Sheridan himself said as to why he had told the lies. Consequently, we can see no substance in this ground.

Finally, Mr Leon submitted the judge failed to put the defendant's case to the jury after indicating that he would do so. He contends that no matters were put to the jury as to the defendant's lack of involvement up to 7th January 1994 and the jury were left with the unsatisfactory position, particularly as the defendant had given no evidence, called no witnesses, had challenged little by way of cross-examination of the prosecution witnesses or of the co-accused. Even though the defendant did not give evidence, this was a case for the judge to assist the jury in putting the defendant's case in some limited form, at least in the terms put forward in argument by counsel who had gone to great lengths to explain to the judge the lack of hard evidence against the defendant when making a submission of no case to answer.

We can deal with this point briefly. As can be seen from the passage cited above, the judge did remind the jury of counsel's submissions and went as far as he could to suggest a possible explanation for Sheridan's lies in the absence of any evidence from him. No doubt if Sheridan had given evidence, the judge would have reminded the jury of that evidence as fully as he undoubtedly did in the case of Murray and Morgan. There was no material omission from the rest of the evidence which assisted Sheridan. There was a strong prosecution case against him, on the narrow basis of Sheridan's participation in this criminal activity, namely:

(1) that he was the person who was to break down the heroin from bulk and to process it into marketable quantities. In short, the prosecution maintained that Sheridan's role was to divide, weigh and package the heroin.

(2) that he lied in order to disassociate himself from McDonald, Morgan and Murray. He was never to give an explanation as to why traces of heroin and paracetamol were found on scales in his kitchen.

In the absence of such an explanation, the judge cannot be criticised for directing the jury in the manner that he did. There was no misdirection.

We therefore reject this ground. Accordingly, we have no reason to believe that any of the convictions were unsafe. All three appeals are accordingly dismissed.