Lord Justice Pitchford :
Introduction
- On 29 July 2011 at Southwark Crown Court before His Honour Judge ("HHJ") Price, the appellant, James Arthur, was convicted of conspiracy to supply a controlled drug of Class A, cocaine, contrary to section 1(1) of the Criminal Law Act 1977. On 5 October 2011 he was sentenced by the trial judge to 15 years imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 344 days should count towards his sentence.
- On 5 August 2011 the appellant pleaded guilty to a charge of conspiracy to defraud by false representation (count 2) and conspiracy to commit a money laundering offence (count 3). On 9 May 2012 His Honour Judge ("HHJ") Grieve QC imposed a sentence of 33 months imprisonment upon each count concurrent but consecutive to the sentence imposed by HHJ Price on 5 October 2011.
- The appellant has leave from the single judge to advance a single ground of appeal against conviction for the drugs offence, namely that the judge misdirected the jury when giving them the majority verdict direction. Following the grant of leave the appellant added a further ground of appeal to the effect that non-disclosure by the prosecution had affected the fairness of the appellant's trial. He seeks leave in respect of his additional ground.
- The appellant sought leave from the single judge to appeal each of the sentences imposed. Leave was refused and he renews his applications for leave to appeal against sentence.
The evidence at trial
- Jointly with Billy Sales, Paul Lewis and Terry Francis the appellant faced an indictment charging them with an offence that on or before 10 October 2010 they conspired with Adam Wickham and others to supply cocaine, a Class A controlled drug. On 28 April 2011 they each pleaded not guilty but shortly before trial Sales, Lewis and Francis changed their pleas to guilty.
- The appellant was tried before HHJ Price at Southwark Crown Court between 11 and 29 July 2011 when he was convicted by a majority of 11-1. At the sentence hearing before HHJ Price on 5 October 2011 Sales was sentenced to 10 years imprisonment, Lewis to 8 years imprisonment and Francis to 3 years imprisonment.
- Having regard to the pleas of guilty of the appellant's co-accused the jury started from the position that there was without question a conspiracy in operation. The issue was whether the appellant was a member of that conspiracy. The evidence comprised surveillance, telephone records and covert recordings of conversations between the appellant and Sales both face to face and by telephone. The recordings were the product of a probe inserted in Sales' Range Rover car during the months of April, May and June 2010. On occasions telephone conversations between one occupant of the car and a third person could be heard at both ends of the conversation, either because a loud speaker device was being used in the car or because the third person spoke loudly enough for the probe to pick up his words. On other occasions only the words spoken by an occupant of the car were picked up by the probe. It was the prosecution case that Sales and the appellant could be heard in discussion which left no room for doubt that the appellant was one of the conspirators. The prosecution sought to establish the context of the appellant's conversations with Sales by adducing also evidence of Sales' approximately contemporaneous conversations with other conspirators. It was thus the prosecution case that the jury were listening to conversations that constituted the conspiracy in operation. The evidence was therefore admissible hearsay.
- The jury was provided with some 32 separate transcripts containing over 160 pages of recorded conversation. The prosecution relied on a very limited number. However, the appellant's defence was that he was engaged alone and with Sales in other criminal activity, namely a property fraud and the sale of counterfeit watches. As to the property fraud, vacant properties would be found. Ownership was hi-jacked by means of false documents and the properties sold fraudulently to third parties. Transcripts of conversations discussing the property fraud and watches were included in the jury bundles at the request of the defence. Where there was disagreement between the prosecution and the defence as to the accuracy of the transcript of words spoken, the jury was, by agreement, provided with the defence proposed transcript and invited to reach their own conclusion upon hearing the recordings themselves. The jury was informed by Detective Constable ("DC") Frett that he had listened to a total of 90 hours of recordings and had transcribed conversations that appeared to be relevant for evidential purposes.
- Having regard to the assertions made in support of the additional ground of appeal (that by reason of non-disclosure the fairness of the trial was compromised) it is necessary to refer in more detail to two particular chains of communication recorded by the probe. At 6.27 pm on 20 April 2010 Paul Lewis telephoned Billy Sales. The following conversation occurred:
"Sales: Hello mate
Lewis: How much are those things whole to me?
Sales: What ones?
Lewis: The ones you were going to give me for my mate.
Sales: What the re-doers?
Lewis: Yeah, the re-doers, yeah.
Sales: There are two different types. The really, really good one for 32 quid and the other one was 5½ quid, a bit, a corner so that times four - 21½. Get it off him for 21½.
Lewis: I have got somebody who I reckon I can smash a few of them out.
Sales: How do you want to do it?
Lewis: What I will do I will have the cheap one and I will do it to him at 25 so he can
rather than trying to get 30 and do one. I would rather do some at 25. You know when I used to get them for 25. You want to go and bolt everybody up. If you got them 30 in the first place you try to do them, you've got fucking no chance have you?
Sales: Yeah I see what you are saying.
Lewis: Whereas if you got them at 25 and do them for 30 you can have yourself 5. I have got one geezer who is a proper grafter. He's one of Roll's pals.
Sales: They have not got glitter in them or nothing.
Lewis: Have they got a stamp on them?
Sales: No, they come in 4 corners.
Lewis: Can you get me a corner so I can show him a corner and say look, this is how they come.
Sales: Yeah, tomorrow." (Binder 1, transcript 1, pages 2-4).
- The prosecution case was that since Lewis and Sales had both pleaded guilty to the conspiracy it was tolerably clear that they were speaking about drugs. The prosecution also relied upon the evidence of Detective Constable ("DC") Baxter who was employed at the Specialist Crime Directorate for approximately 15 years and had been closely involved in the investigation of drug trafficking offences for the last 20 years of his professional life. DC Baxter confirmed that he had a detailed knowledge of the drug trade including the jargon used by drug dealers. In connection with the passage we have extracted above DC Baxter gave evidence that the term "re-doers" referred to remixed cocaine. The reference to "32 quid" implied that the conspirators were talking about a price of £32,000 which, at the relevant time, would have been the market price for a kilo of remixed cocaine. When referring to "the other one" Sales was speaking of a different quality of cocaine whose price was "5½ quid" for a "bit", or "a corner". In context a corner meant a quarter of a kilo of cocaine; hence Sales' reference to "21½", being £21,500 per kilo. Lewis was referring to a preference for the "cheap one" at a price of £25,000. That would provide him with a profit of approximately £3,000 per kilo. DC Baxter explained that at the time of this conversation cocaine was commonly mixed with a bulking agent containing boric acid, the consequence of which was to give the drug a shiny or sparkly appearance; hence the use by Sales of the word "glitter". A cartel exporting cocaine from South America to the United Kingdom would emboss the drug with a "stamp" whose presence signified that the drug was close to source and remained of high purity.
- The prosecution submitted that the conversation demonstrated Lewis was seeking information from Sales as to the availability of cocaine by reference to quality and price. Lewis had a customer for the product. DC Baxter explained that to "smash out" the drug meant to sell it.
- Immediately after Lewis ended his call to Sales, at 6.30 pm Sales made a telephone call to Arthur. There was no answer and at 6.31 pm Arthur returned the call to Sales. The following conversation took place:
"Sales: Paul will pick that paperwork up and they are happy to do our one for what we can.
Arthur: That will do then. So we don't have to take it and show them.
Sales: I recommend we should do, so we, in the future, if we decide not to use them we can.
Arthur: We can show it to them we can show it to them anyway
. See you in the morning.
Sales: No problem." (Binder 1, Transcript 1, page 4).
- The prosecution case was that Sales was immediately reporting to Arthur the effect of his conversation with Lewis. They were speaking of the need for the drug to be shown to a buyer.
- At 6.32 pm Lewis again phoned Sales:
"Lewis: What kinds have we got I know about the cheap ones. What's the other ones?
Sales: They are in their jackets. Lovely jubbly 50/50's.
Lewis: How much are they?
Sales: 32 quid.
Lewis: 32 quid 34 quid. Have we got the proper how much are they?
Sales: 50 quid.
Lewis: What to us?
Sales: Out the door at 50
and 42½
physical proper.
Lewis: I'm meeting Raz. He's a proper grafter and I trust him
So you remember Ian?
Remember I went on that meet in Essex with the Indians. We went to
in Greenwich, the one with the Mars bars. Well it's him.
Sales: Sweet, as long as it is all accountable, 'cos I can't afford to lose any more money.
Lewis: I am not losing a tenner.
Sales: Tell him the 50/50's are 32's, no sorry, they got to be 34's or there is nothing in it.
Lewis: Why don't we start at 34.50?" (Binder 1, transcript 1, page 4-6).
- DC Baxter was asked whether he could assist as to the use of the word "jackets". He replied that he believed "jackets" was a term used when cocaine is wrapped in South America for trafficking. The purpose was to prevent the escape of any odour which could be detected by dogs. There may be a heavy wrapping of cling film and a rubber compound before completing with masking tape. DC Baxter interpreted Sales' conversations with Lewis as discussing three different qualities of cocaine. A wrapped or jacketed block of cocaine would be sold at £50,000 per kilo. A remixed but good quality kilo of cocaine would cost £32,000; a lesser quality remixed kilo of cocaine would cost £21,500 if purchased in "corners". DC Baxter could not tell simply by reason of the language used during Arthur's conversation with Sales at 6.31 pm that their subject was the same as that discussed between Sales and Lewis. The defence tendered an alternative transcription of the conversation between Arthur and Sales in which Arthur said "Yeah, but we can show it to him, to the one, when it comes through on our I-phone, can't we?" The defence contention was that accurately transcribed it could be seen that the conversation was more likely to be about forged or deceptive documents being prepared for a property fraud; images of documents would be sent to their I-phones.
- At 4.59 pm on 26 April 2010, six days later, Arthur made a telephone call to Sales. As originally transcribed the prosecution suggested that the subject of the call was drugs. However, the defence submitted a transcript in which it was clear DC Frett had missed a reference to making a payment of money for "sigs". This was a reference, the appellant explained, to signatures on documents held by the Land Registry. The property fraudsters needed to obtain copies of the signatures for the purpose of forging contract documents. Money was needed to bribe an employee in the Land Registry to provide those signatures. However, at the conclusion of the conversation Arthur said, "Alright then, get on the case and get some jackets put out, yeah". He then suggested that Sales should "ring me in the office". The prosecution contended that this was a reference by Arthur to a pay-as-you-go mobile telephone which Arthur used when discussing certain kinds of criminal activity. At 5.00 pm Sales did indeed telephone Arthur on his pay-as-you-go telephone number. Sales opened with the following observation:
"Sales: Hello
the guy that used to see my Paki mate is in touch with Adam
because Adam reckons he will be able to do a couple, a few, a couple of them a week, every week
no problem at all. He got to see it yesterday, love it, loved the way it looked, loved the presentation, give it to someone
they was quite happy with the way it went, so
he's just waiting for confirmation and yeah, will be able to do a few by the looks of them, be back to normal." (Binder 1, transcript 12, page 10)
- The prosecution asserted that following the Arthur's reference to jackets, Sales rang Arthur back in order to bring him up to date with the drugs that were "out there". The reference to Adam was to Adam Wickham, the person with whom it was alleged the defendants had conspired. Wickham was at large and had not been arrested by the date of trial.
- At 5.04 pm Sales telephoned Wickham. This time, only Sales' end of the conversation was recorded as follows:
"Sales: Have you got a ETA for that job, Beckenham side? If I say 6.30/7.30. What do you think should I put those things in jackets? My ones. What do you reckon, do you want to speak to your brother. 'Cos they are for another job. They are sitting there. They will do it for me but I need
I think that is the best way of doing it, don't even bother about putting them in jackets 'cos it looks like you are trying to fuck someone. Do you want to see how many you can do and when you can do them and what I can do? You know if you need to show them to anyone who you need to ring don't you? I just want to get on with that job." (Binder 1, transcript 12, page 12).
- DC Baxter expressed the opinion that the conspirators were discussing how the drug should be presented to the buyer. Adam Wickham was expressing satisfaction. He discussed with Sales whether the drug should be presented in "jackets". Sales resolved that the drug should not be presented in jackets because if they did the buyers would think that they were attempting to pass off poorer quality drugs as high purity.
- The following morning, at about 10.25 am, 27 April 2010, Sales and Arthur were sitting in Sales' Range Rover. The following conversation took place:
"Arthur: What are we doing about some jobs mate?
Sales: I will know today.
Arthur:
I thought we only had two. How many did you have the other day.
Sales: I don't know, I never asked him. I had my load
I think three, so I just presumed three.
Arthur: You might have done, never asked him.
Sales: Adam is going to see two people today and give them bits and bobs.
Arthur: Little samples.
Sales: He said I am going to tell them what they are, they will be happy with what they are, let's not put them in jackets 'cos then it looks like we are trying to fuck people.
Arthur:
fair enough some of it aren't in jackets I got some in jackets. I have got four in jackets and four without jackets.
Sales: He reckons we can take a couple this week
" (Binder 1, transcript 13, pages 3-4).
- DC Baxter explained that Arthur appeared to have 4 kilos of cocaine in "jackets" and, therefore, of high quality, and 4 further kilos without jackets, therefore of lesser quality. Sales appeared to be reporting that Adam would be providing samples to customers. Sales and Arthur were discussing the prospects of future sales. Later the same day, Sales and Arthur were again in Sales' Range Rover. The prosecution contended that Sales and Arthur were discussing the prospects of future business in cocaine. The following conversation occurred:
"Sales: I would like to get hold of my little Indian mates who were in Plumstead. They used to do some fucking work.
Arthur: How do you get hold of them?
Sales: I am just trying to think who I could get hold of them.
Started to talk to him and it worked out that he was bang at it. I fired into him and I smashed it with him.
Arthur: How can we get hold of him?
Sales: I don't know.
Arthur: I have got a mate in Plumstead but he might still be in prison. I can't remember his fucking name. What's Thorny taken? Have you had any feedback off of him?
Sales: He has put a few bits up but he is alright. He's took that whole job
First of all he said come and get that other half but that's right, the weekend, so he must of smashed it out of the weekend, give a few out and then people will come back and buy a bar instead of an ounce. Do you know what I mean one of them ones?
Sales: So he should be up for two get Adam to take two that's four a week that's lovely. That will do alright.
Arthur: That will do me.
Sales: Every 10 days.
Arthur: Yeah." (Binder 1, transcript 16, pages 5-6).
- DC Baxter explained that a bar was a generic term used for all drugs. In his view, the two men were speaking about cocaine. A bar of cocaine was 9 ounces or a corner. The person referred to as Thorny had given a few samples out which meant that people would come back and buy a bar rather than an ounce. Sales was calculating that Thorny should be up for 2 kilos. If Adam Wickham was able to take a further 2 kilos, they would be supplying 4 kilos of cocaine each week. The prosecution case was that Arthur's response, "That will do me" was telling evidence that he was a partner with Sales in the ongoing conspiracy to supply cocaine. It was the defence case that although drugs were being discussed, to the appellant's knowledge Sales was referring to cannabis and he, the appellant, was not involved. However, he could not explain what he meant when he said, "That will do me". DC Baxter would not accept that the language used by Sales during the conversation could have referred to cannabis dealing.
- The defence case was that the appellant was in partnership with Sales in business which was both legitimate and illegitimate. He accepted that he was a user of cocaine but denied that he had any involvement in the supply of the drug and denied also that he had ever purchased cocaine from Sales. He dealt in watches which he counterfeited as new by presenting them in wrappers or "jackets". He was involved in the property fraud with Sales and others which involved hijacking the apparent ownership of unoccupied properties and making purported sales to third parties. It was the appellant's evidence that the term "jackets" also refer to a package of forged deeds and documents which the conspirators needed to complete the frauds. He gave evidence that the word "show" was used to describe the presentation of such documents. "Samples" described samples of paperwork. In his summing up, the judge reminded the jury that it was common ground between the prosecution and the defence that their interpretation of these conversations depended entirely upon their judgment as to the context. They first had to be satisfied as to the words used, second that the appellant was discussing a conspiracy to supply cocaine, and third that the words used demonstrated that he was a participant. He reminded the jury that the point was made on behalf of the appellant that the prosecution relied on very limited snippets of conversation. Several others were inaudible. Furthermore, there were plainly occasions when Sales and Arthur were in communication with one another but their conversation was not recorded by the probe in Sales' motor car. It was possible, the defence had submitted, that the jury was not hearing these conversations in their full context.
Jury retirement and majority verdict direction
- The jury retired to consider their verdict at 11.33 am on Thursday, 28 July 2011. Immediately before they retired the judge instructed the jury as follows:
"Finally, ladies and gentleman, of course you have heard of majority verdicts. Will you forget about it? Please will you bring in a verdict which everybody agrees upon. If the time came, and I would discuss it with counsel, when we felt it possible to have a majority verdict we would let you know, but in the meantime take your time, read everything, come and have things played back if you want to. You are in charge, but try and reach verdicts which everybody agrees upon and forget about majorities.
"
- At 2.15 pm while the jury was in retirement the judge informed counsel that they had asked to hear specific passages of some of the transcripts. It was agreed that they might use the court room for that purpose and arrangements were made for the recordings to be replayed. Thereafter the jury continued their deliberations in their room until 4.05 pm. At that point the judge released the jury for the day.
- On the morning of Friday, 29 July 2011 the judge informed counsel that the jury had made a further request to listen to parts of the recordings. They re-commenced their deliberations, beginning with consideration of the recordings, at 11.31 am.
- At 2.23 pm on 29 July 2011 the judge informed counsel that the jury had passed an oral message to the jury bailiff that they were not "getting anywhere". He invited the views of counsel as to whether and when a majority verdict direction should be given. The judge resolved that the jury should be invited, in the first instance, to make any communication they wished with the court by means of a written note. At 2.37 pm the judge informed counsel that he had received a note from the jury which read:
"Regrettably, after extensive discussions our jury have been unable to reach a verdict. Could you please advise or offer any alternative option?"
- The judge observed that the jury were probably making an enquiry about a majority verdict direction, a proposition with which Mr Whittaker, for the appellant, agreed saying, "I could not argue against a majority direction". He invited the judge to tell the jury that they were under no pressure of time and that if need be they could come back on Monday. The judge was informed that the jury had been in retirement for 7 hours and 39 minutes and he asked for the jury to return to court. Having ascertained that the jury had not reached a verdict upon which they were all agreed the judge gave them the following direction:
"Members of the jury, I have had your note which I have read to counsel. I think the time has come when we could accept a majority verdict, but first of all, before I do that, I hope you feel no pressure on you for time and if this case has to go into next week it has to go into next week. Please try and reach a verdict on which everybody agrees. If after give and take and full discussion you honestly cannot do that then I can accept a verdict which at least ten of you agree. So please try and reach a verdict with which you all agree. Give and take, discuss as you will and continue to do, but if you cannot reach a verdict on which everybody agrees, I can accept one of which at least 10 of you agree."
- The jury retired to continue their deliberations at 2.41 pm. They returned to court at 4.10 pm to deliver their guilty verdict by a majority of 11-1.
The misdirection
- It is argued by the appellant that the judge's majority verdict direction was flawed. By using the words "give and take" the judge was incorporating into his majority direction features of the Watson direction. There was no need to make reference to give and take because the jury had not yet had time to consider the impact upon their deliberations of the majority verdict direction. The Court of Appeal has said on several occasions that a Watson direction should not be given before or at the same time as a majority verdict direction. This was in any case an incomplete Watson direction. The judge failed to include an essential component of the Watson direction that emphasised the need for jurors to be faithful to the jury oath. The effect of the direction was to run the risk of placing pressure upon the jury to reach a verdict sooner than later. In the terms in which the judge directed the jury it was implicit that there were only two possibilities available, a unanimous verdict or a verdict by a majority. The judge did not recognise the third possibility, namely that no verdict at all could be returned if the jury could not, in conscience, reach the required majority.
The cases
- Our attention has been drawn to previous decisions of the court on the subject of the Watson direction. We must begin with Watson itself, [1988] QB 690. Lord Lane CJ, sitting with Sir Stephen Brown P, Watkins, Russell and Taylor LJJ, reviewed the use of the long standing direction employed to encourage juries to reach a unanimous verdict approved by the court in Walhein [1952] 36 Cr App R 167. Lord Lane, delivering the judgment of the court, identified a danger that was inherent in the Walhein direction, namely that jurors may mistakenly construe it as encouragement to subordinate their own views to those of their colleagues, even if they did not accept them, for the sake of reaching a unanimous verdict, the only verdict available at the time Walhein was decided. Majority verdicts were introduced by the Criminal Justice Act 1967. The first half of the direction emphasised that argument, give and take, and the adjustment of views within the scope of the jurors' oath was a necessary part of jury deliberations. Lord Lane observed that there could be no possible objection to such a direction to the jury. However, the second part of the Walhein direction emphasised the trouble and expense of a re-trial should the jury be unable to reach agreement. In the view of the court a direction of that kind was capable of placing improper pressure on the jury. The court concluded that the practice should be discontinued. Having examined the state of the authorities both before and after the introduction of majority verdicts, Lord Lane said at page 700:
"This is an important matter of procedure and a reappraisal of the situation is overdue. One starts from the proposition that a jury must be free to deliberate without any form of pressure being imposed upon them, whether by way of promise or of threat or otherwise. They must not be made to feel that it is incumbent upon them to express agreement with a view they do not truly hold simply because it might be inconvenient or tiresome or expensive for the prosecution, the defendant the victim or the public in general if they do not do so.
"
He continued:
"In the judgment of this court there is no reason why a jury should not be directed as follows:
'Each of you has taken a oath to return a true verdict according to the evidence. No-one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. The task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily, [10 of] you cannot reach agreement you must say so.'
It is a matter for the discretion of the judge as to whether he gives that direction at all and if so at what stage of the trial. There will usually be no need to do so. Individual variations which alter the sense of the direction, as can be seen from the particular appeals which we have heard, are often dangerous and should, if possible, be avoided. Where the words are thought to be necessary or desirable, they are probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction".
- In Buono [1992] 95 Cr App R 338 the trial judge had, while giving the majority direction, also given the Watson direction, adding words that had been specifically disapproved in Watson, namely that it would be unsatisfactory from everyone's point of view if the jury could not reach a verdict, at least by a majority of 10-1. Watkins LJ giving the judgment of the court, reiterated that the Watson direction would rarely be required. He added that it should be given in the course of summing up or after the jury had been given time to consider the majority direction. It should never, the court concluded, be given at the same time as the majority direction. Watkins LJ did not analyse what might be the unwelcome effects of giving a Watson direction at the same time as the majority verdict direction. Notwithstanding these strictures, the court was not persuaded that, read as a whole, the direction given would have caused the jury to feel under any kind of pressure. The court noted that after the direction had been given the jury deliberated for another 1 hour and 47 minutes before returning with their verdict by a majority of 10-1.
- In Morgan (9700986WF, 26 March 1997) the jury received the majority direction at 2.08 pm. At 4.18 pm the Recorder called the jury back into court and addressed them in the terms of the Watson direction. However he added:
"Let me just ask you. If unhappily 10 of you cannot reach agreement, you would say so but, if you feel you need time I would be happy for you to retire again."
There was no response from the jury and the Recorder continued:
"I am not going to in effect invite you to answer that. What I will do is to ask you to retire now. As I say, once again, try and reach a unanimous verdict if you can, but if not at least 10 of you in agreement one way or the other. As I say, bear in mind what I have just said to you. It is a question of pooling your opinions and if you can do that otherwise I will bring you back and ask you how you are making progress
"
The Recorder then received from individual members of the jury five notes in which requests were made for messages to be passed on to family members and child minders. The Recorder indicated that he intended to permit the messages to be given. The jury returned to court at 4.45 pm and returned a verdict of guilty by a majority of 10-2. It was submitted on behalf of the appellant that the addition of words to the Watson direction had imposed improper pressure on the jury to reach a verdict. Rose LJ, Vice President, giving the judgment of the court, observed that the Recorder had prefaced his Watson direction with the assurance:
"Do not imagine being called back in is to put any pressure at all on you."
While acknowledging that the suggestion the jury might immediately be able to reach a verdict was capable of placing pressure on the jury, the court concluded that its capacity to create pressure was immediately withdrawn. The Vice President continued:
"We emphasise that judges should, as this court has said repeatedly, follow precisely the terms of the direction as laid down in Watson. If they do not do so, there is a risk that the verdict of the jury will consequentially be rendered unsafe, particularly if what is said can be construed as imposing upon the jury improper pressure to reach a verdict. In the present case, it seems to us that there is nothing either in what the judge said, departing though he did from the terms of Watson, or from the notes which the jury wrote shortly after, to suggest either that the jury was being placed under improper pressure, or that they thought that they were."
The court concluded that nothing had been done to render the verdict of the jury unsafe. We note that this was the first of the decisions upon the subject of the Watson direction cited to us that was made following the change to section 2 of the Criminal Appeal Act 1968 introduced by the Criminal Appeal Act 1995 (by which the sole test became whether the conviction was unsafe).
- In Atlan [2004] EWCA Crim 1798 the jury informed the Recorder that they had agreed on three of the four counts in the indictment. It was, however, too early for a majority verdict direction to be given. At 2.50 pm the Recorder called the jury into court and directed them as follows:
"I think the only assistance I can give you, if it's assistance at all, is to ask you to go away and try a bit harder. I am afraid that the law doesn't allow me to take a majority verdict from you at this stage. All I can say is that whoever is your foreman or woman needs to perhaps direct the discussion so that you all have an opportunity of saying what you want to say, and there might have to be a bit of give and take in your deliberations and your thoughts. I am afraid I can give you no further guidance than that. I cannot accept a majority verdict from you at this stage so would you go away and try a bit harder for a little bit longer."
At 3.40 pm the jury returned not guilty verdicts upon counts 1, 2 and 3, but a guilty verdict upon count 4. Keene LJ, delivering the judgment of the court identified the capacity of the words used by the Recorder to create undue pressure upon the jury to reach a verdict upon count 4 in the absence of a qualification that the jury must remain true to their oath. The effect was to invite compromise. The court expressed concern also at the timing of the direction, given as it was before the majority verdict direction was due. The court considered that the timing of the direction was likely to add to the sense of pressure upon jurors. Keene LJ concluded:
"18. Ultimately the test which we, of course, have to apply is whether this conviction is safe. It seems to us to be relevant that the jury appears to have been unanimous by the time of its note that the appellant should be acquitted on all three other charges which he faced. They were divided on count 4. Following this direction by the Recorder, they ultimately convicted on that charge. Moreover, they were unanimous in acquitting the appellant on charges on which, if the parking attendant were to be believed by them, the appellant was apparently guilty. The criminal damage to the notebook is an obvious example of that. Had it not been for this direction there might well not have been a conviction on the common assault charge."
In these circumstances the verdict the jury returned upon count 4 was unsafe and the appeal was allowed.
- In Dublin [2007] EWCA Crim 3240 the judge gave to the jury a partial Watson direction at the same time as providing them with a majority verdict direction, in the following terms:
"I thank you for your note. I can say only this about its content (and effectively you scarcely need me to tell you it). It is important, if you can, to reach a verdict. It is important for the defendant, it is important for the witnesses, it is important for the public who may otherwise find themselves having to bear the cost of another trial. It is at least equally important that you should remain true to the oath that you took, each one of you, to reach a verdict in accordance with the evidence. This is, of course, the priority. So members of the jury, I have to ask you to retire once again. First of all, make a conscientious attempt to reach, if you can, a unanimous verdict. If you cannot, I can now accept a verdict which is the verdict of at least 10 of you. If it should turn out that it is impossible to reach a verdict upon which at least 10 of you are agreed then once it is plainly genuinely impossible, you had better send and let me know, but I have to ask you to make that effort."
Underhill J, delivering judgment of the court (Gage LJ, Underhill J and Sir Christopher Holland), said at paragraph 14 that the court fully endorsed what had been said by the court on previous occasions about the dangers of departing from the language prescribed in Watson and of the undesirability of providing a Watson direction at the same time as a majority verdict direction. However, it was necessary to:
"Examine the circumstances of each case and see whether the course taken amounted to undue pressure on the jury in those particular circumstances."
A distinguishing and "crucial" feature of the case was that the jury informed the judge of the voting split and that the minority would not change their minds. The jury was asking "expressly for advice as to the impasse in which they found themselves". In these circumstances the court expressed understanding why it was that the judge thought it necessary to do more than simply to provide a majority verdict direction. Underhill J concluded:
"16. The question remains, however, whether the words which the judge used amounted to putting pressure on the jury. He started by emphasising the importance of reaching a verdict and mentioned in that context the cost and inconvenience to all concerned if there had to be a re-trial. It was that feature, in particular, in the Walhein direction that was thought in Watson to be potentially (though, we note, not necessarily) objectionable; and it might have been more prudent if the judge had accordingly not expressly referred to that feature. Nevertheless, he then went on to emphasis also the importance of the jurors' remaining truthful to their oaths and he described that as the priority. Finally, and also importantly, in his concluding sentence he made it quite clear that he acknowledged that they might not be able to reach even a majority verdict."
For these reasons the court could not conclude that the jury might have felt under pressure to return a verdict contrary to their conscience.
- A similar but not identical problem arose in W (Andrew) [2008] EWCA Crim 460 (Gage and Hughes LJJ and HHJ Paget QC). The judge provided the jury with a majority direction as follows:
"First of all, it is in the public interest that there should be unanimous verdicts if you can possibly reach them, so I am going to ask you to retire and consider if you can possibly reach a unanimous verdict; one on which all of you are agreed. That will require those who are dissenting from whatever is the [apparent] simple majority to listen to each other's arguments and exchange with care and mutual respect what lies at the heart of those misunderstandings or disagreements. If, having tried to reach a unanimous verdict, you still cannot do so, then I can accept a verdict upon which 10 of you are agreed."
- The court decided that the verdict of the jury was unsafe. First, the jury was considering four counts alleging the rape of a child under 13 years. There was an irreconcilable difference of opinion between the medical experts for the prosecution and the defence as to whether there was damage to the child's hymen capable of supporting the prosecution case. Although the minimum period for delivery of the majority verdict direction had elapsed, in the view of the court the direction had been given far too early having regard to the issues with which the jury had to grapple. Secondly, the quasi-Watson direction was given at the same time as the majority verdict direction without the essential rider that the jury must remain faithful to their oath and to inform the court if they could not reach a verdict.
- At the trial which preceded the appeal in Herbert [2009] EWCA Crim 2518 members of the jury in retirement sent a succession of notes to the judge which resulted in the prosecution making a submission that the jury should be discharged. After reflection, at the commencement of the second day of their deliberations, the judge called the jury into court and addressed them as follows:
"Members of the jury I am sorry you have been kept waiting this morning. I have had a number of notes through and I want to explain to you how we are going to proceed. I have had notes from 2 jurors and I have spoken to 2 jurors who have got time commitments this afternoon which mean that we cannot sit beyond 1 o'clock today and I will call you back to court if you haven't reached a verdict shortly before 1 o'clock.
There is absolutely no pressure of time. If you do not reach a verdict by 1 o'clock you can come back on Monday fresh and continue with your deliberations. Absolutely no pressure of time whatsoever. It is not uncommon for jurors to separate when somebody has a commitment because you have lives outside of this court and the court accommodates those commitments wherever possible. Because of that and your deliberation process and your role as the jury is absolutely vital to this process that will be put into the transcript and [you] do not need to read it now.
I have had another note from a juror who is finding the process of deliberation difficult and stressful and we know that it is a difficult and stressful task but you do it by discussion amongst yourselves by give and take, by concentrating on the evidence and reminding yourselves of the directions in law which I have given you which included the directions as to the burden and standard of proof and you will reach your decision in the fullness of time.
Now I am going to ask you to go back and continue with those deliberations and as I indicated yesterday to continue to try to reach a unanimous verdict but it is important that you also remember I am not just going to leave you, I am thinking about you all the time and there is absolutely no pressure and your individual needs to the extent that we can are accommodated. I am conscious of the fact that you have lives outside this courtroom."
At 12.15 pm, the time at which the judge had indicated that she would give to the jury a majority verdict direction, the jury returned to court with a unanimous verdict of guilty. It was argued on behalf of the appellant that the judge's reference to the need for "give and take" without the addition of the rider that the jury must remain true to their oath, exerted pressure upon the jury which rendered their verdict unsafe. The judge's assurance that if the jury had not reached a verdict by 1 pm on Friday they could return on Monday to continue their deliberations could be seen as pressure to reach a verdict on Friday.
- Aikens LJ, giving the judgment of the court, observed that several concerns had been expressed by individual jurors about their personal circumstances. The judge could not be criticised for dealing with those concerns and giving appropriate directions in the first part of her address to the jury on Friday morning. As to the principal argument that undue pressure was placed upon the jury he continued:
"31. On Ms Levinson's second argument we deal first with the judge's reference to 'give and take'. In our view that phrase should not have been used by the judge. If it is going to be used at all in this context, then it should be used in the context of the full, unaltered, Watson direction. But the question here, as in the cases reviewed in Watson, is whether the use of those words put pressure on the jury to come to a decision, almost any decision, even if it was not one which all the jurors really believed and was in accordance with their oath. We are quite certain that it did not do so. The judge not only went on to emphasis the need to concentrate on the evidence and the directions of law, but she emphasised that there was no pressure on them. The mere fact that the words, 'give and take' were used, although unwise and unfortunate, cannot in our view, by themselves mean the pressure of an improper kind was put on the jury."
The court did not consider that the judge's reference to a continuation of deliberations on Monday, if necessary, can have had the effect of placing undue pressure on the jury to reach a verdict before 1 pm on the Friday. The appeal was dismissed. Mr Owen QC, on behalf of the appellant, submits that we should treat the decision in Herbert with some caution because it may be that the court's attention had not been drawn to the previous observations of the court made in Dublin and W (Andrew). It was pointed out that the exhortation to apply give and take was given well before the judge intended to provide a majority verdict direction and that, when made, it did not include the essential rider that the jury must be true to their oath. We note that the only authority referred to in Aikens LJ's judgment was Watson. We doubt very much that Watson was the sole authority considered by the court before reaching its conclusion on the facts.
- In Pinches [2010] EWCA 2000 the trial judge, having discharged the jury from reaching a verdict upon count 1, and having been informed that the jury was deadlocked in relation to count 2, gave the standard Watson direction. Very shortly afterwards the jury returned with a majority verdict of guilty upon count 2 by 11-1. Moses LJ, delivering the judgment of the court, stated that while individual judges differed as to the wisdom of providing a Watson direction at any stage of a trial, it remained good law that it was permissible to give the direction, when appropriate in the trial judge's assessment, at some stage after the majority verdict direction had been given. In those circumstances it was not possible to conclude, having regard to the approved terms of the direction given by the trial judge, that the jury's verdict upon count 2 could be viewed as unsafe.
- In Farooqi and Others [2013] EWCA Crim 1649 the trial judge, having concerns that as a result of a defence speech to the jury, the jury would not fully comprehend their responsibilities as jurors, elected in the course of his summing up to provide a direction in the Watson terms. The court (Lord Judge CJ, Tracy LJ and Sharp J) rejected the argument that it was inappropriate in the circumstances to give the Watson direction in the course of the summing up. At paragraph 151 Lord Judge made the following observations upon the use of the direction in any circumstances:
"151. Care must be taken in relation to a Watson direction. There are particular dangers in departing from the wording approved by Lord Lane CJ, and difficulties arise if the direction is given in circumstances which appear to put pressure on a jury to agree when they may genuinely be unable to do so in accordance with their oaths. The cases illustrate that problems may arise if the direction is given prior to the majority direction, but after the jury has indicated some difficulty in reaching a verdict (see R v Atlan [2004] EWCA Crim 1798). It is also well understood that the direction should not normally be given at the same time as a majority direction (see R v Buono [1992] 95 Cr App R 338). In this case the judge did not deviate from the approved wording nor, since it was given on the first day of the summing which ran over 5 days, could it be thought that his direction was associated with some difficulty the jury were expressing in reaching unanimous verdicts."
Discussion
- As the facts of some of these appeals reveal, some jurors find the process of deliberation towards a verdict to be onerous and stressful. Twelve members of the public, unknown to one another, are brought together for the first time for the purpose of assessing evidence, frequently contradictory and challenging, in order to arrive at a verdict. The process is almost certain to be unfamiliar to them. It is not uncommon for trial judges at the commencement of a trial, particularly a long or difficult trial, to provide the jury with an explanation of their role as jurors as an accompaniment to the warnings that the judge is bound to give as to their responsibilities as jurors. The judge's words are explanatory only, referring, perhaps, to the fact that jurors bring with them their individual talents and experience to contribute to the task of assessing the evidence and reaching a verdict; that they should consider the evidence carefully as it is given, but should not reach any concluded view until they have heard all of the evidence, they have been addressed by the advocates and the judge, and they have discussed the case with the assistance of their fellow jurors; that in the process of deliberation each juror has an equal voice; that by analysis and discussion of the evidence the jury will reach their conclusions as to the relevant facts and, by applying the judge's directions of law, they will arrive at an agreed verdict. In our view advice such as this is likely to be of assistance to the jury. It certainly carries no risk of pressure. Such an explanation is not given in the terms of the Watson direction since, at that stage of the trial, there is no occasion for anticipating any of the difficulties that sometimes arise while the jury is in retirement.
- However, once the jury is in retirement it is of the first importance that no individual juror should feel under any compulsion or pressure to conform with the views of the majority if to do so would compromise their conscience and, therefore, their oath. Furthermore, the jury as a whole, despite the heavy cost and inconvenience of a re-trial, should not feel under any pressure to return a verdict if, conscientiously, they are not unanimous or cannot reach the required majority. When the court in Watson re-examined exhortations to the jury to return a verdict, it recognised that it had been possible since 1967 for the judge to accept a majority verdict. Parliament has provided for the circumstances in which a majority verdict can be accepted by the court. Majority verdicts are never accepted before 2 hours and 10 minutes has elapsed since the jury retired. Commonly, trial judges permit a substantially longer time to elapse before considering a majority verdict direction to allow for the evidential ground that the jury must cover before they could sensibly be expected to turn to their ultimate decision. Any interference with this process may have the effect of placing undue pressure on the jury to reach a verdict, either sooner rather than later, or at all, the consequence of which may be to encourage the minority to abandon their conscientious assessment of the evidence simply for the convenience of returning a verdict unanimously or, following the majority verdict direction, by the requisite majority. By introducing majority verdicts Parliament was alleviating pressure on the jury to be unanimous, the very pressure that the court in Watson considered could be the effect of the disapproved Walhein direction. It is undesirable to give a Watson direction before or at the time of the majority verdict direction because its effect may be to undo the benefit of the majority verdict direction for which Parliament has provided. Exceptional circumstances may arise that will require the trial judge to deal with the exigencies of the moment but, in general, there is no occasion to make exhortations to the jury to arrive at a verdict. This is why the Watson direction is rarely given by trial judges and, when it is, only as a last resort following a prolonged retirement after the majority verdict direction has been given.
- As the decisions to which we have referred demonstrate, if complaint is made about the trial judge's words of explanation, encouragement or exhortation the question for this court is whether the words used were appropriate in the circumstances or carried with them the risk that jurors would feel undue pressure to reach a verdict. If the effect of the judge's direction to the jury is to create a significant risk that the jury or individual jurors may have felt under pressure to compromise their oaths, the verdict is likely to be unsafe. No juror should feel required to compromise their oath in order to fall in with the majority and no jury should feel under pressure to reach a verdict if to do so would require any one of them to compromise their oath. The danger is that all jurors, particularly the minority, will feel pressure to return a verdict unanimously or by an acceptable majority at the expense of conscientious consideration of the evidence. The closer the jury is to unanimity or to an acceptable majority the greater is the pressure to which the minority may feel exposed. As these decisions demonstrate each case must be considered on its own particular facts.
- We turn, therefore, to consider the terms in which HHJ Price addressed the jury when giving them the majority verdict direction (see paragraphs 27 and 28). That the judge was giving the majority direction at all arose from his and counsel's assessment that, having deliberated in retirement for over 7 hours, the jury wanted to know where they stood with regard to a majority verdict, something about which the judge had told them he would, if the need arose, give them further assistance. He opened his remarks by assuring the jury that they were under no pressure of time. He told them that they should feel under no such pressure; if necessary the court would return on Monday. Secondly, the judge told the jury that if after give and take and full discussion the jury could not "honestly" reach a unanimous verdict he could accept a majority verdict of 10. It seems to us that the judge was, by using the word "honestly", conveying to the jury in a homely way that if they could not reach a unanimous verdict conscientiously, in other words in accordance with their oaths, the time had come when he could accept a majority verdict. By this means, in our judgment, the judge was adding the important rider as to the conscientiousness of the jury's deliberations, the absence of which has been found in some of the cases to have been fatal to the safety of the verdict. We do not consider that the judge's words could have conveyed to the jury that there were only two alternatives available to them, namely a unanimous verdict or a verdict by a majority. The jury had specifically asked for the judge's assistance at a time when they were unable to return a unanimous verdict. The judge's assistance was directed to the question whether and, if so, by what majority the court was permitted to accept a majority verdict and to nothing else. It is clear from the context, in our view, that the judge was not addressing the further eventuality that the jury might become deadlocked; neither do we think that the jury could have understood the judge's words as dealing with that eventuality. The judge was merely answering their enquiry for assistance as to majority verdicts.
- Mr Owen QC for the appellant and Mr Gadsden for the respondent each made submissions as to the way this court could interpret the progression of the jury towards their verdict. Mr Gadsden submitted that the fact that the jury returned a verdict of 11-1 provides some evidence that the jury never was deadlocked. The probability is that the jury, being divided 11-1, tried, following the majority verdict direction, to reach a unanimous verdict, but in the result managed a verdict only by the stated majority. Mr Owen submitted that there is at least a possibility that the jury were evenly divided but that, labouring under the prospect of having to return for a fourth week, they felt under pressure to return a verdict on Friday. In our view, there is little to be gained from a speculative consideration of events. We cannot know what the numerical division of opinion was at the time when the jury asked for assistance. What is notable, however, is that the jury remained in retirement for a further period of about 1½ hours after they had received the majority direction. No indication was given by any member of the jury that personal difficulties would arise if their deliberations continued into Monday. There is, in our judgment, no reason to conclude that the jury may not have given conscientious consideration to the evidence and their verdict once they had been informed of the majority that must be attained before a verdict could be returned.
- The jury had asked specifically for the judge's assistance. It was Friday afternoon. The judge accepted Mr Whittaker's concern that the jury should not feel confined by the time available that afternoon. Accordingly, he reassured them in this respect. There was, we consider, no need for the judge to add any words of encouragement to reach a unanimous verdict save for the conventional direction that they should endeavour to reach a unanimous verdict but if they could not then the court could receive a verdict by a majority of at least 10-2. The full Watson direction was not given. It is common ground that it would have been inappropriate to give it. In the result we accept Mr Gadsden's submission that the words actually used by the judge added almost nothing at all to the advice that the jury would have received in a standard majority verdict direction. While again expressing disapproval of the addition of words which were unnecessary we do not conclude that the judge's references to give and take and honest consideration of the evidence rendered the jury's verdict unsafe.
Additional ground of appeal
- In a separate trial of Gary Moore in 2013 upon a charge of conspiracy to commit property fraud admitted by the appellant in the course of his own trial for conspiracy to supply class A drugs, it was discovered by an expert, Mr Philip Harrison, instructed on behalf of Mr Moore that, contrary to the understanding of the court in the appellant's trial, further recordings had been made by the probe in Mr Sales' car that had not been disclosed to the defence. It is now agreed that some 30 files amounting to 15½ hours of audio product was present on a master disc that was not disclosed to the defence. Some five files recording conversations which took place on or around 20 May 2010 had been irretrievably lost. Thirdly, six files dating from 25 June 2010 that had been disclosed could not be found on the master or working copy discs from which the original material had been copied. It is submitted that these acknowledged failures demonstrate that the evidence given by DC Frett as to the completeness and provenance of the recordings was inaccurate at best. It was the appellant's case at trial that the prosecution was relying upon a tiny proportion of the recorded material to support its assertion that the appellant conspired to supply class A drugs. In support of the appellant's case that he was engaged in a property fraud but not a conspiracy to supply drugs it was pointed out that on many occasions during the 90 hours of recording of which the jury was aware the probe was unable to identify conversation. It is now submitted that if the jury had been aware that there was yet further material the appellant's case would have been further supported.
- While acknowledging an inadvertent failure to make proper disclosure of all the material available to the prosecution Mr Gadsden submits on behalf of the respondent that had the jury been made aware of the additional material it would have made no difference to their consideration of the issues raised at trial. The prosecution accepted the appellant's assertion in evidence that, inevitably, there were conversations taking place between the appellant and Sales which were either not picked up by the probe or had taken place at a distance from the car. It followed that the point was legitimately made on behalf of the appellant that the jury could not know about all conversations which took place between the appellant and Sales upon the subject of their transactions, lawful or unlawful. Furthermore, save for the five missing files the appellant had long ago been provided with all the undisclosed material. If, therefore, it revealed any conversation which cast light upon the appellant's case it could now be demonstrated. As to the five missing files recorded on or about the 20 May 2010, any conversation recorded was distant in time from any of the conversations upon which the prosecution relied. There was, in the submission of the respondent, not even a remote prospect that material then recorded could illuminate the correct interpretation of conversations between Sales and the appellant that took place on 20, 26 and 27 April 2010.
- The appellant identified four areas in which the undisclosed material may have been regarded by the jury as relevant to their consideration of the appellant's case. Firstly, it was contended by the prosecution in opening the case to the jury that the term "bags" was a reference to a quantity of cocaine. A reference by Sales in one of the undisclosed recordings to a "bag of sand" made it clear that the term "bags" could refer to money rather than drugs. However, it was demonstrated during the course of the evidence at trial that the word "bags" was used as a form of slang for money. So much was conceded by the prosecution. Accordingly, the contents of the undisclosed recording could have added nothing of significance to the defence case.
- Secondly, in the course of an undisclosed recording made on 26 May Sales is heard arranging a meeting between himself and a man called Haroon at a property in Clapham. This is said to be a derelict property involved in the property fraud. At trial Mr Gadsden had put to the appellant in evidence the prosecution case that a text written to Adam Wickham concerning a property in Clapham was related to the drugs conspiracy rather than the property fraud. The appellant responded that there was an earlier passage on one of the discs that had been disclosed to him that supported his assertion. The appellant contends that the undisclosed conversation with Haroon adds support to his evidence that the property in Clapham had nothing to do with a drugs conspiracy. The respondent contends that there could have been no relevant connection between the issue on which the appellant was cross-examined and a meeting arranged some 30 days later, not between Sales and Adam Wickham but between Sales and Altaf Haroon.
- Thirdly, on one of the undisclosed recordings Sales can be heard talking to a Rory Hogan, a co-defendant in the property fraud, using the term "sample" in a context which made it clear they were talking about samples of paperwork. It is submitted that had the jury been aware of this alternative use of the word "sample" they may have arrived at a different conclusion upon the use of that term in the passages of conversation upon which the prosecution relied at trial. In response, Mr Gadsden relied upon the chain of conversations to which we have referred earlier in this judgment. It is submitted that there was no prospect that the jury could have confused the sense in which the word "samples" was used in that context. The further material in the undisclosed recording would simply have confirmed that which was common ground between the prosecution and defence at trial, namely that the jury's interpretation of words depended upon their judgment of the context in which they were used.
- Fourthly, in the course of an undisclosed conversation on 26 April Sales is heard discussing the purchase of grams of cocaine for personal use. It is submitted that this may have had the effect of undermining the prosecution's case that neither Sales nor Arthur would be interested in buying cocaine for personal use when they were already in possession of large quantities of cocaine that they were dealing in kilos. It was Mr Gadsden's submission to the jury in his final speech that it was remarkable that Arthur, an acknowledged cocaine user, should insist that he had never purchased cocaine for personal use from Sales. The point being made by the prosecution on an issue of credibility was different from that which, it is asserted, Sales' personal use may have undermined. In any event, it is submitted by the respondent that since Sales had pleaded guilty to the conspiracy to supply cocaine it was neither here or there that he may have discussed purchasing an odd amount for his own recreational use. The undisclosed conversation would have had no significant impact upon the appellant's case at trial.
- Finally, it is submitted by Mr Owen QC that in the course of his closing speech to the jury on 27 July 2011, prosecuting counsel asserted that there was no evidence that Gary Moore was involved in the property fraud, yet Gary Moore was subsequently charged with the property fraud. Accordingly, the jury were misled as to the state of the evidence relating to Gary Moore. Mr Gadsden in fact addressed the jury not upon whether Gary Moore was involved in the property fraud but upon changes in the appellant's evidence as to whether he or another "Gary" was or not involved. In other words, the respondent was seeking to demonstrate that the appellant had been utterly inconsistent as to who was the "Gary" who was involved in the property fraud. In the middle of his evidence the appellant changed his account having had the weekend to reflect. The respondent had been making no assertion whether or not Gary Moore was implicated.
- We have considered each of these competing submissions. We conclude that none of the features of the undisclosed material identified on behalf of the appellant, nor Mr Gadsden's reference to Gary Moore in his final speech, can have had any material effect upon the jury's consideration of the question whether in the chain of conversations on which the prosecution relied it was demonstrated the appellant was implicated in the conspiracy to supply cocaine.
Conclusion
- For these reasons we refuse leave on the additional ground and dismiss the appeal against conviction.
Application for leave to appeal against sentence
- Sales and Lewis pleaded guilty to the charge of conspiracy to supply cocaine on 1 July 2011. Counsel for Francis was not available but an indication was given to the court on 1 July that he too would be pleading guilty, which he did on 4 July 2011. The prosecution accepted that Francis was to be sentenced on the basis that he was involved as a courier only, mainly working for Adam Wickham. Sales and Lewis put forward bases of plea that amounted to a wholesale challenge to the prosecution case. A Newton hearing took place on 3 October and 4 October 2011 during which Lewis gave evidence and Sales made submissions about the effect of the prosecution statements of evidence. HHJ Price concluded as follows:
"I am quite sure that there was a conspiracy, not in a limited way, kilos of cocaine and some were in fact supplied. The conspirators had a source of supply and a place to store the drugs. The fact that none were discovered does not mean that they did not exist
I am sure the conspiracy involved the potential supply of multiple kilos of cocaine and that there had been one or more kilos actually supplied. I believe this was an active conspiracy and that Mr Arthur and Mr Sales believed it could bring in £300,000 per year."
- Despite the lengthy Newton hearing the judge informed Sales and Lewis that because the case was complex and they had been in custody awaiting sentence he would give full credit for their pleas of guilty. He held that Sales and Arthur were at the heart of the conspiracy. He took as his starting point 15 years custody. Sales received full credit for his plea and his sentence was, therefore, 10 years imprisonment. The judge found that Lewis was next in the hierarchy. His starting point was 12 years and, after full credit for plea, his sentence was 8 years imprisonment. Francis acted as a courier for a limited period. He was a man of good character who had served in the armed services in Iraq. After full credit for his plea the sentence was 3 years imprisonment.
- The appellant Arthur does not challenge the judge's assessment of his prominent role in the conspiracy he identified. He argues that his co-accused were afforded such a generous allowance for their guilty pleas that his own sentence of 15 years imprisonment appears unfairly disparate.
- In Caley [2012] EWCA Crim 2821, [2013] 2 Cr App R (S) 47 the court (Hughes LJ Vice President, Wilkie and Popplewell JJ) reconsidered the approach to the award of credit for a guilty plea in a range of circumstances, including where a Newton hearing had taken place. The Vice President said, at paragraphs 26 and 27:
"26 The Guideline expressly stipulates at para.4.3(iv) that if the trial of an issue by way of Newton hearing is necessary because the defendant asserts a false basis of plea or otherwise disputes a part of the case against him, then if his case is rejected that should be taken into account in determining the level of reduction for plea of guilty. This is only commonsense. The reduction is to recognise the public benefits which flow from a plea of guilty. If despite a plea to the indictment the defendant insists on a version of events which calls for a trial of the issue before the judge some witnesses may well have to give evidence and even if they do not court time will be taken up and further preparation by the Crown will often be necessary. Of course, if the Crown cannot prove its version, the defendant's reduction for plea of guilty will be unaffected. But if the defendant fails, the converse follows. It is of no little importance to the administration of justice that where bases of plea which will affect sentence are tendered, judges should decide the facts. It is particularly important that unrealistic bases of plea should receive no incentive.
27 We do not think that it is either necessary or possible to attempt to lay down a rule as to what (if any) reduction for plea should survive an adverse Newton finding. It will depend, as it seems to us, on all the circumstances of the case, including the extent of the issue determined, on whether lay witnesses have to give evidence and on the extra public time and effort that has been involved. Some cases involve little more than an assertion in mitigation which the judge is not minded to accept at face value, so that the defendant is given an opportunity to give evidence about it, often (sensibly) there and then. In that case, the reduction ought normally to be less than it would have been if the (false) assertion had not been made, but significant reduction for a plea of guilty will, we anticipate, normally survive. Other cases may be ones where something akin to a full trial has to take place, with full preparation by the Crown, lay witnesses having to be called and considerable court time taken up. In such a case, the reduction for plea of guilty which survives is likely, we suggest, to be very small, and may be none at all. In between there may be a considerable range of situations. These must be left to the informed judgment of the sentencing judge."
- The Vice President's observations expand upon the guidance previously given in Underwood [2005] 1 Cr App R 13 (Judge LJ, Douglas Brown and Bean JJ).
- The appellant's argument implies that Sales and Lewis, having engaged in an unsuccessful two-day challenge to the prosecution's case against them, had largely dissipated the credit due to them for their guilty pleas. The effect of the judge's generosity towards them was to produce sentences that were unfair to Arthur and, accordingly, Arthur's sentence of 15 years imprisonment was wrong in principle or manifestly excessive. Rarely, in our view, will the assessment of credit for a guilty plea in favour of one defendant, even if it is over-generous, provide a ground of appeal in the case of another to whom, admittedly, no such credit is due. Arthur's trial lasted just over three weeks. The Newton hearing for Sales and Lewis lasted two days. Sales, Arthur's direct comparator, did not give evidence. He invited the judge to examine the written evidence for its capacity to establish the basis upon which the prosecution contended Sales should be sentenced. We accept that the judge's decision to award Sales full credit for his plea was generous, perhaps over-generous, but the assessment was, as the court commented in Caley, for the sentencing judge to make in the particular circumstances of the case. We do not conclude that the judge's generosity towards Sales upon the assessment of credit due rendered the sentence in Arthur's case unfair. Arthur was undoubtedly entitled to no credit at all and he was a leading member of the conspiracy. We do not consider that the sentence upon Francis is relevant. Both the factual basis for sentence and Francis' personal mitigation were of a different order.
- On 5 August 2011, following his conviction for the drugs conspiracy, Arthur pleaded guilty to a charge of conspiracy to commit fraud by false representations and a charge of conspiracy to launder money. Counsel for Arthur invited HHJ Price to sentence for all matters but sentence was adjourned to await the outcome of the trial of others charged with the fraud conspiracy before HHJ Grieve QC.
- Arthur appeared for sentence together with Sales and Lewis before HHJ Grieve QC on 9 May 2012. The conspirators, the judge held, had targeted unoccupied properties, former family homes, whose owners were frequently old and infirm and living in care. They would pass themselves off as owners and make fraudulent sales to third parties. Nine properties had been identified but there had been others. Of these properties five had been sold for a total price of £1.2m. The judge found that Sales was the driving force behind the conspiracy and that Arthur was his partner. He acknowledged that Arthur may not have been involved in every property. In the course of the enterprise a bank manager, solicitor and Land Registry employee had been corrupted but the judge accepted that Arthur had not been directly involved in their corruption. He observed only that Arthur could be heard in one of the recordings discussing with Sales the corruption of a further bank employee. The judge found that in common with others Arthur had a callous disregard for the welfare of the true owners of the properties. The judge's starting point in Arthur's case was 6 ½ years custody reduced to 4 years 4 months for his guilty plea. The fraud conspiracy was entirely separate from the drugs offence although it overlapped in time. A consecutive sentence was required but it would be reduced to 2 years 9 months upon both counts, concurrent with each other but consecutive to the term of 15 years imprisonment Arthur was already serving.
- The appellant contends that HHJ Grieve QC failed to make a sufficient discount in application of the principle of totality. The judge's obligation was to reach a sentence that fully reflected Arthur's offending but was, on reflection, just and proportionate. In our judgment it is not arguable that the judge erred either in his approach or in the outcome.
Conclusion
- We agree with the conclusions of the single judges who refused leave. It is not demonstrated that the sentences in Arthur's case were wrong in principle or manifestly excessive either individually or in total, and the renewed applications are refused.
