Peter John TANTRAM v Darren Robert BIBBY [2001] EWCA Crim 1364

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CRIMINAL DIVISION)
[2001] EWCA Crim 1364Case No Case No: 200100391/Z4 200100400/Z4 200100537/Z4 200100538/Z4 200100685/Z4 200100767/Z4Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
Peter John TANTRAMDarren Robert BIBBYClive Alan BOIDJohn James MCGINTYJoseph Arnold SMITHAndrew BOID
Before
The Vice President of the Criminal DivisionLord Justice RoseMr Justice HuntMr Justice MackayMr A Macdonald QC & Mr P Isaacs appeared for TANTRAMMr JDD Hall QC & Mr I Hillis appeared for BIBBYMr S Bourne-Arton QC & Mr J Devlin appeared for C.A. BOIDMr P Watson appeared for MCGINTYMiss T Dempster appeared for SMITHMr JW Richardson QC & Mr C Attwooll appeared for A.BOIDMr B Nolan QC & Mr J Lewis for the CrownDate 24 May 2001
[1]THE VICE PRESIDENT: These appellants were tried at Hull Crown Court before His Honour Judge Heppel between 4th September and 22nd December 2000. There were two counts of conspiracy to defraud in the indictment. The main conspiracy alleged against all the appellants and others was in count 1. A second conspiracy laid against only four named conspirators the appellants Clive Boid, Andrew Boid, Tantram and Tantram's wife was count 5 on the indictment. It was referred to as count 3 throughout the trial and for the purposes of this appeal can be referred to as count 2.[2]Tantram was convicted unanimously on 14th December on count 1 and by a majority of 11 to 1 on 19th December on count 2. He was sentenced to six years imprisonment on count 1 and 12 months consecutively on the second count so his total sentence was seven years' imprisonment. Bibby was convicted unanimously on 20th December on count 1 and sentenced to three years imprisonment. Clive Boid was convicted on 19th December by a majority of 11 to 1 on count 2 and sentenced to fifteen months' imprisonment the jury being discharged on count 1, having failed to agree. McGinty and Smith both pleaded guilty on 6th September to count 1 and were sentenced respectively to five years' imprisonment and 3 years 9 months' imprisonment. Andrew Boid was convicted on 14th December on both counts unanimously and sentenced to seven years' imprisonment on count 1 and twelve months consecutively on count 2, that is a total of eight years' imprisonment. A co-accused called Powell was acquitted on 14th December on count 1 and the jury on 21st December were unable to agree in relation to Mrs Tantram on counts 1 and 2 and a man called Wilson on count 1.[3]With leave of the single judge, Tantram, Bibby, Clive Boid and Andrew Boid all appeal against conviction and sentence and McGinty and Smith appeal against sentence.[4]Count 1 alleged a conspiracy between January 1993 and November 1996 to defraud the general public by putting into the human food chain poultry meat condemned for human food use and fit only for pet food use. Count 2 alleged a conspiracy between June and December 1996 to defraud Pedigree Pet Foods by supplying them with poultry meat of pet food grade falsely representing it to be of human food grade and charging accordingly.[5]As to count 1 it was not disputed that poultry condemned as unfit for human consumption and supplied to Wells By-products ("Wells") for processing for pet food ended up in the human food chain. Wells was founded by the appellant Clive Boid and sold in 1991 to Prosper de Mulder. Boid remained as managing director and undertook a wide ranging role in the Prosper de Mulder Group. Daily running of Wells was the responsibility of his son, the appellant Andrew Boid, who was general manager. The appellant Bibby was assistant manager. Many hundreds of tonnes of condemned poultry was processed there weekly, mostly through an emulsifying and freezing process, for incorporation into pet food. Some was processed through the boning shed to produce breast meat. Most of this product went to Cliff Top Pet Foods a company operated by the appellant Tantram and his wife. There it was sorted, packed and sold on to the appellant McGinty who ran two South Yorkshire companies. He and the appellant Smith, together with a man called Boldock, since deceased, processed it further, re-packed it and sold it as human food. Smith and Boldock operated from Barbot Hall industrial estate in Rotherham from where the product was distributed into the human food chain, much of it through the meat brokerage businesses of the co-accused Wilson and Powell. A complaint about Boldock's product lead to an investigation by the Environmental Health Department of Rotherham Council who raided his premises on 27th June 1996. The prosecution case was that diversion of many tonnes of pet food into the human food chain generated very substantial profits from which each of the appellants benefited. Records were incomplete and the prosecution said there must have been secret cash payments from deals between some of the parties.[6]There was evidence that, at Wells, day and night shifts in the boning shed produced a product which was put in baskets, iced down and collected, often at night, by Cliff Top and by North Yorkshire By-products a company connected with Smith at Barbot Hall to whom invoices were sent. Cash was paid to Bibby. When the boning shed foreman queried these transactions he was assured by Andrew Boid that there was nothing to worry about. In August 1995 Andrew Boid said that North Yorkshire were not to be supplied any more and they never came again. Thereafter, supplies were made, without any paper-work, to Novacold Storage Depot in Retford. The weighbridge was not operated. Instructions were given by Andrew Boid or Bibby. The Novacold warehouse manager was given cash in a brown envelope. From Novacold some of the product was collected in a vehicle with false registration plates by a man working for Boldock and the documentation showed the consignee as a business operating near Smith and Boldock. Bibby himself collected bags of the product from the boning shed during the night shift and loaded his Ford Mondeo to capacity. He claimed that he was going to Novacold but was not away long enough to make such a journey and was sometimes seen setting off in the wrong direction. Invoicing records from Wells showed that, between July 1994 and September 1996, they supplied Cliff Top with 971 tonnes of chicken and 666 tonnes of turkey worth about £1,000,000 at a price of 30 pence per pound for chicken and 25 pence per pound for turkey.[7]At Cliff Top, breast fillet from Wells in iced containers was fork-lifted from the back of the van onto the factory floor where it was checked and mouldy or bruised meat removed. The rest was packed into 30lb bags a presentation and packaging which resembled that for human food. It was then collected by McGinty himself or other drivers employed by him. McGinty was known at Cliff Top as David Williams. He was often there speaking to the Tantrams or checking the processing and weighing. Payment was usually made in cash by the collecting driver. Invoices for the period between July 1995 and June 1996 showed that McGinty was buying the chicken at 70 pence per lb and the turkey at 53 pence per lb until September 1995 and then at 80 pence per lb and 58 pence per pound respectively. Tantram told the police that he sold 95% of the product he bought from Wells to McGinty's company.[8]From McGinty, the product went to Smith and Boldock at Barbot Hall. McGinty was often seen there. His drivers brought the product at night and collected cash which they gave to McGinty. Product collected from Novacold was dealt with at night at Barbot Hall by workers arriving after the day shift had left. They trimmed and put each piece through a salt bathing process. Boldock's stock sheets showed that, between July 1994 and November 1995, McGinty supplied about £463,000 worth of chicken at 90p to 100p per lb and turkey at 70p to 80p per lb. From Barbot Hall, the product went into the human food chain. Smith's drivers delivered boxes to butchers, supermarkets, caterers and restaurants in South Yorkshire and Nottinghamshire. It was sold for about 20p less than the normal market price. Sometimes McGinty specified other customers, in particular brokers in Grimsby run by Wilson. The time came when McGinty cut out Smith and supplied those brokers directly from Cliff Top. From January to March 1996 Wilson paid Cliff Top £65,000, by bankers draft payable to Mrs Tantram. Wilson supplied Powell another broker in the human food chain. The case for Wilson and Powell was that they had bought the product as human food and were themselves also victims of deception.[9]Count 2 related to Pedigree who purchased raw materials for the manufacture of its pet food from Wells. They developed a new cat food which required turkey breast. But there was not enough pet food grade available to satisfy demand. Mr Cohen, the raw material buyer for Pedigree, had meetings with Clive Boid who agreed to seek human grade material at a price acceptable to Pedigree. Mr Cohen was prepared to pay the considerably higher price necessary to obtain human grade meat but he would not have paid human grade prices for pet food grade. Wells supplied pet food grade turkey breast to Cliff Top at the usual price. Cliff Top processed and packed it in white boxes, provided on the instructions of Andrew Boid, and sold it to Wells at the human grade price. Wells delivered it from Cliftop to Novacold from where it was sold to Pedigree. Between July and September 1996, Pedigree were invoiced for a total of £250,000, the name appearing on the invoices, at Andrew Boid's suggestion, being that of a company which had ceased trading at the end of 1995. Cliff Top invoiced Wells for £192,000 during August and September 1996 and then paid its share of its profits on the transaction to Traditions which was a Boid family company. Traditions paid the money out in dividends of £12,500 each to the wives of the two Boids.[10]On 27th March 1997 when Wells was raided by environmental health officers, Bibby tried to conceal some of what had been going on. Shortly afterwards, the Boids saw Mr Whitfield a solicitor acting for Prosper de Mulder. Andrew Boid said that a product in the human food chain had been traced back to Wells. There was one transaction which had not gone through the books. Because he had had difficulty obtaining main board approval for capital expenditure at Wells, he had done a cash transaction with Smith off the books whereby Bibby delivered the product to Smith and later to Novacold for collection by Smith. Most of the cash had been spent on improvements at Wells. The Boids told Mr Whitfield that Mr Cohen at Pedigree had agreed to buy pet food at edible prices. The following day Mr Whitfield, Andrew Boid and Bibby went to Barbot Hall, where Smith gave them a schedule and covering letter purporting to provide details of deliveries from Andrew Boid: Smith had actually been given these documents that morning by Boldock whose secretary had written them out. Andrew Boid had obtained some false invoices for work purportedly carried out at Wells, which he produced to a director of Prosper de Mulder together with petty cash vouchers and other false documents to support his explanation of his dealings.[11]All the appellants were of good character. In evidence, Tantram said he had bought from Wells and sold on pet food as pet food. His wife was not actively involved in the business. He ran a kennel business at Cliff Top and then acquired the pet food business in his wife's name. He bought from Wells from about 1986 and developed a nation-wide trade with pet food manufacturers. He met a man he knew as David Williams about 1990 and sold him significant quantities of boned out chicken which he had bought from Clive Boid. There was nothing secret about this. Because Cliff Top was effectively a monopoly supplier it was able to charge Williams high prices. Tantram thought the product was going to feed greyhounds in London. He never knowingly dealt with Wilson In mid 1996 Williams said he did not want any more turkey breast. Andrew Boid told him that Pedigree had asked him to find turkey and he suggested that Cliff Top should take six metric tonnes a week, sort, check and freeze it and then supply it to Pedigree through Wells, at a premium. Boid said that Pedigree were prepared to pay "silly prices". He supplied boxes and portable cold storage and they divided the profit. Boid's share was paid on an invoice from Traditions on Boid's instructions. Bibby said that he just did his job following what he thought were lawful instructions. He was unaware of any Wells product getting into the food chain or of any cash fiddle. Others took advantage of him. From 1995 he oversaw all the boning shed operations on Andrew Boid's instructions. He thought Smith had a pet food business. Andrew Boid would take the order and he Bibby just passed it on. He collected money for which he had accounted. He organised deliveries to Novacold and when there was a driver shortage he would deliver in his own car. He never made night-time deliveries and was not involved in any attempt to cover up when Wells was raided. Clive Boid said that, when Wells was taken over by Prosper de Mulder he was no longer involved in running Wells and knew nothing of the transactions in this case. As to count 2, he was asked by Mr Cohen to find edible turkey which he did, arranging two consignments and being paid commission. He did not know of Cliff Top 's supply to Pedigree until his son Andrew told him in April 1997. He did not know of Cliff Top's payment to Traditions. He felt badly let down by Mr Whitfield to whom he had taken his son Andrew for advice. Andrew Boid said Wells only ever supplied the pet food industry. He never agreed to put pet food into the human food chain and knew nothing of this happening. He did not know Smith, McGinty, Wilson or Powell and had no dealings with Boldock. He did not go to Barbot Hall until after the raid and did not know that Smith's companies were connected with it. He dealt with Tantram under an arrangement of long standing and Wells supplied Cliff Top with pet food at pet food prices. Wells supplied North Yorkshire for cash at a time when Cliff Top's demand dropped. He saw this as a way of injecting cash into the company. But, ultimately he began to keep money, amounting to £25,000. He initially asked Bibby to deliver direct but later he supplied via Novacold. He trusted Bibby to collect the cash. As to the Pedigree count, he decided to take advantage of the fact that Pedigree was prepared to pay inflated prices to obtain what they needed. He had asked Tantram to box the material bought from Wells, having made it as clean as possible, and to sell it back at an enhanced price so that it could go to Pedigree. There was no agreement or intention to defraud or to represent that the poultry was edible. Mr Cohen indicated that he knew what was going on and said that it would teach the quality control people a lesson. The payment by Tantram into Traditions was a device for Andrew Boid to recoup something from the deal, but there was nothing dishonest about it. Tantram was purchasing a franchise to sell Traditions' product in the United States (a claim which Tantram denied). He was worried, when he heard about Wells' product being found in the human food chain, that his dishonesty over the cash sales would be discovered. He told his father about them and about the sales to Pedigree at inflated prices. His father insisted that he should seek advice from Mr Whitfield. He lied to his father and others and produced false documents to conceal the fact that he had kept money.[12]On Wednesday 6th December the jury retired to consider their verdicts. The judge agreed with counsel for the Crown that piecemeal verdicts were to be avoided if possible and the judge said he would not consider a majority direction that week. On 7th December a note was received from the jury asking in relation to the Pedigree fraud about the relevance of Cohen's knowledge and whether a defendant could be charged with conspiracy with somebody other than another defendant. The judge, following submissions by counsel, responded to that note in terms which are the subject of complaint in this court and to which we shall later return. The court did not sit on 8th December.[13]On Thursday 14th December at about 3 pm following a retirement of 5... days the jury sent to the judge what has been referred to as "the first note" in these terms " We have reached 5 unanimous verdicts and two 11-1 verdicts. The remaining are approximately 50/50 verdicts with little or no change when discussed. Please could we have direction on the undecided verdicts "[14]The terms of the note were not at that stage disclosed by the judge to counsel. The court was re-convened and the jury brought in at 3.20 pm. The Associate proceeded to take the verdicts asking the Foreman in relation to each defendant in turn if the jury had reached a verdict on which they were all agreed on count 1 and if so whether it was guilty or not guilty. The Foreman said that they had in relation to each defendant except Bibby and verdicts of guilty were returned on Tantram and Andrew Boid and not guilty on Clive Boid, Mrs Tantram, Wilson and Powell. The same exercise was repeated for count 2 and verdicts of guilty on Andrew Boid and not guilty on Clive Boid, Tantram and Mrs Tantram were returned. There were accordingly ten unanimous verdicts. Clive Boid, Mrs Tantram, Wilson and Powell were discharged. The jury was given a majority direction in respect of the one outstanding count against Bibby and retired again at 3.28 pm. Defendant's costs orders were made in favour of Wilson and Powell and the judge declined to hear a submission as to the making of a pre-sentence report in relation to McGinty. At 3.55 pm the judge received a second note and the judge at that stage disclosed to counsel in barest outline the substance of the first note adding that, in the light of it, he had decided to take the verdicts which had been taken. The second note which was in different writing from the first said " We are not happy at what happened. We thought it was sprung on us. We just wanted instruction on 3 or 4 undecided 50/50. We had 2 11-1s and we've said innocent instead of undecided. We just wasn't prepared to do verdicts at this stage. People have walked away that shouldn't have. " The judge said he proposed to invite the jury back to indicate the errors made and then to hear submissions. Defence counsel questioned whether the judge was entitled to go behind the verdicts delivered. After some debate with counsel and a short adjournment the judge was persuaded to show counsel the first note. There was a further short adjournment followed by discussion with counsel and reference to R v Andrews [1986] 82 Cr App R 148. Submissions were made as to the undesirability of re-opening the jury's verdicts. At 5.23 pm the jury returned to court and the judge said:
"Mr Foreman the note has been received and considered by the court which indicates that erroneous answers were given to a number of questions which were asked by the Clerk of the Court in respect of the first note you sent. What I wish you to do now is to retire again and to indicate in writing so that there can be no doubt about it in respect of which defendants on which counts you say that errors were made in returning the verdicts you returned before."
At 5.50 pm the jury returned to court having sent a 3rd note in the following terms "Main fraud Clive Boid - undecided, Darren Bibby - undecided, Louise Tantram - undecided, Kevin Wilson – undecided. Pedigree: - Clive Boid - undecided, Peter Tantram - undecided, Louise Tantram - undecided."[15]It will be noted that this third note implied that there had initially been only 4 unanimous verdicts whereas the first note had indicated 5 compared with the 10 which were returned.[16]The jury were released until the following morning with a strong warning not to talk to each other or anyone else about the case in the meantime. On the following morning the judge indicated that he had received in a sealed envelope a letter from the jury foreman. He indicated that he did not at this stage propose to read it. Counsel for Clive Boid dissented from but counsel for Wilson agreed to this course. All were agreed that the jury should be given a strong separation warning and sent away until Monday the 18th. This was done. Submissions followed from all counsel. At their conclusion the judge indicated that he would consider the matter over the week-end and give a ruling on 18th December. The foreman's letter remained un-opened. On 18th December the judge gave his ruling. He rehearsed the history and the submissions of counsel. He concluded that no material irregularity arose from failing to disclose the contents of the first note which related purely to voting figures. He explained that, following receipt of that note, he had decided to clear the decks by taking the unanimous verdicts and giving a majority direction. The four verdicts not the subject of complaint, that is the convictions of Andrew Boid and Tantram on count 1, and Andrew Boid on count 2, and the acquittal of Powell on count 2 should stand. He referred to section 8 of the Contempt of Court Act 1981 and ruled that that was not breached by the enquiry which led to the third note. He referred to the principles in Andrews and to the Privy Council's decision in Lalchan Nanan v The State [1986] 83 Cr App R 292 and Maloney [1996] 2 Cr App R 303. He concluded that the jury was entitled to rectify its verdict, it not being likely that they had changed their mind. The probable reason for the mistake was that the taking of the verdicts had been sprung on them. He carefully rehearsed the other factors which he took into account. He concluded that the defendants could continue to receive a fair trial and the balance came down firmly in favour of the jury being allowed to continue to deliberate over these verdicts. At that stage the jury foreman's letter was opened.[17]In the light of section 8 to the Contempt of Court Act 1981, by which this court is bound not to disclose matters in the course of jury deliberations, it is sufficient for present purposes to record that the first paragraph of that letter referred to matters occurring in the jury room and views expressed by jurors. The second and third paragraphs of the letter referred to personal inconvenience and difficulties arising for the foreman from the length of the deliberations and a wish by him to cast his vote and leave. Counsel made submissions to the judge about the terms of the foreman's letter. Counsel for Clive Boid submitted that the jury was in turmoil, the foreman could not be discharged in isolation and the whole jury should be discharged. Counsel for the other defendants adopted that submission. Prosecution counsel resisted discharge of the jury. The judge ruled that the foreman's letter was a personal note not from the jury as a whole and it must be presumed that the jury was conducting its deliberations in accordance with their oath. It was not appropriate to enquire of the jury as to the contents of the foreman's letter "nor to assume that the contents are necessarily accurate". He did not regard the letter as providing good grounds for discharging the jury. The jury returned at 13.21 and the judge gave directions as to the procedure which would be followed for rectification of the verdicts. Following a retirement of about 20 minutes the jury, in response to specific questions from the clerk of the court, indicated they had not reached unanimous verdicts on count 1 in relation to Clive Boid, Mrs Tantram or Wilson or on count 2 in relation to Clive Boid, Tantram or Mrs Tantram. The judge then gave a majority direction in relation to those six verdicts. They had of course already been given such a direction in relation to Bibby. The judge said:
"The law doesn't, because of course it can't, lay down any maximum time or minimum time for the jury's retirement. It takes as long as it takes. You are therefore to be under no pressure as to questions of time."
He also said "jury service is of course an important public duty and the court recognises that it may cause inconvenience. However members of the jury, as you appreciate and must appreciate, once a job is started it has to be finished." On the afternoon of the following day the jury convicted Clive Boid and Tantram by a majority of 11-1 on count 2. On the afternoon of 20th December they convicted Bibby unanimously on count 1. At 12.20 pm on 21st December, having sent a note indicating that there was stalemate in relation to the remaining four matters, they were discharged from giving a verdict in relation to Clive Boid and Wilson on count 1 and Mrs Tantram on counts 1 and 2.[18]Against that somewhat lengthy historical background we turn to the grounds of appeal. We stress at the outset the admiration expressed in this Court by the Bar for the way in which the trial judge dealt with this very long and factually complex trial. We in turn are highly sympathetic to him and to the jury in the light of the unusual and difficult problems which arose during the jury's lengthy deliberations. We also express our gratitude to all counsel before us for the care, clarity, helpfulness and brevity of their submissions at all stages of this appeal. We will deal with the grounds chronologically.[19]For Clive Boid, Mr Bourne-Arton QC, in submissions adopted by leading counsel for Andrew Boid and Tantram, challenged the judge's refusal on 24th March to sever the trial on counts 1 and 2, under s5(b) of the Indictments Act 1915, because of prejudice or embarrassment. He also criticised the judge's direction to the jury when summing-up that their decision on one count might help when considering the other. In our judgment, the judge's decision not to sever was not only a proper exercise of his discretion, it was correct. It is true that the counts differed in that the product was for human consumption in count 1 and for pet food in count 2 and that, as was ultimately accepted, the evidence on the two counts was not cross-admissible. But the counts met the criteria for joinder in rule 9 of the Indictment Rules 1971. They were founded on the same facts in relation to the source of the poultry, processing at Wells, routing through Cliff Top, values as pet and human food and the appellants' knowledge; and the character of the offence was similar in that both were, essentially, dishonest passings off of unfit meat for human consumption. The judge's discretion not to sever properly took into account the relevant matters including the unpleasant aspects of the evidence on count 1, the undesirability of two trials, particularly when important witnesses such as Mr Whitfield gave evidence in relation to both counts and the time span whereby the Pedigree offence could be seen as plugging the market gap resulting from the raid on McGinty's premises. The laundering of count 2 proceeds through Traditions was pertinent to the honesty of men of good character in relation to both counts. The judge was accordingly correct to direct the jury as he did and that they should consider whether count 2 was relevant to count 1. Such a direction was clearly appropriate in relation to dishonesty and no fuller direction was necessary. It is pertinent that, having been so directed, the jury in relation to Clive Boid convicted on count 2 but failed to agree on count 1. This ground fails.[20]Tantram advanced a separate ground based on evidence given by Powell, who, like Wilson, was a broker buying from McGinty.[21]Powell's defence was that he believed that the product he was buying was legitimate and could be sold as edible meat. He said that he paid a normal price for it. The Prosecution's case was that the price paid by McGinty to Tantram was exactly the same as that paid to McGinty by Wilson and Powell. They alleged that there was a separate profit sharing arrangement between Wilson Powell and Tantram, the presence of which demonstrated the existence of a fraudulent conspiracy. It was obviously necessary for Powell to meet this point.[22]In cross-examination he agreed that the 2 sets of prices were identical and was asked, legitimately, "What was going on?" He answered with what he called a theory that there was as he put it "a massive fantasy profit in the Tantram figures….. It's not real. It's not a real pet food price" and he proceeded to elaborate on that theory. On behalf of Tantram it was submitted by Mr McDonald QC that this was speculation and not evidence of fact and the questioning which led to it was in the nature of an invitation to argument which ought not to have been permitted. Reference was made to R v Baldwin 18 Cr App R 175. Alternatively the judge should have given a strong warning to disregard the speculative element of this evidence. No application was made to recall Tantram to deal with Powell's theory.[23]As to the first of these objections the prosecution answer is that Powell was seeking to defend himself by answering what otherwise might have been a damaging point. Had he been prevented from doing so he would have had a legitimate cause for complaint. In our judgment this is a correct analysis. The judge would have been wrong to exclude Powell's evidence. It formed a relevant and important part of Powell's defence.[24]The prosecution rightly accept, that a careful direction to the jury was required. When directing the jury about the general approach to a defendant's evidence

the judge said :

"What about the defendant's evidence when he says something about a co-defendant? The defence of each of these defendants is to a greater or lesser extent different from that of his co-defendant. It has followed from this that it has emerged that in some respects the evidence of one defendant has been inconsistent with that of another and may have the effect of tending to undermine it."
[25]He then gave 2 particular examples from the evidence and continued:
"You may find other instances of this depending, obviously, on how you find the facts. Where you find a conflict or potential conflict like this you will have to take special care because one defendant, in saying what he did about the other, may have been more concerned with protecting himself than with speaking the truth. Bear this warning in mind when deciding whether you can believe what one defendant has said about the other."
[26]Furthermore, with the agreement of counsel, the jury were given a document which set out this direction and other general directions in a written form. It is rightly accepted that this direction was in itself impeccable. But the complaint is made that, later in the summing up when dealing specifically with the evidence of Powell, the judge gave no specific warning about relying on his evidence as against Tantram..[27]We are unable to accept that such a specific warning was necessary. This trial had lasted over 3 months and the summing up, of necessity, was already lengthy. In view of the clear and proper direction the jury had been given at the outset and the written reminder that they had we do not consider it was incumbent on the judge, every time evidence was encountered capable of damaging a co-defendant, to repeat that direction. Accordingly this ground fails.[28]A separate ground advanced on behalf of Tantram related to the judge's treatment of parts of the evidence relating to the selling price of the meat. The prosecution's case, against Tantram was that he sold the great majority (95% on his admission) of his product to McGinty and the balance to genuine pet food purchasers. Nonetheless the price to McGinty, was as high as that charged for smaller purchases. This showed that Tantram knew the meat that he was selling to McGinty was destined for the human market and was therefore conspiring to that end.[29]It was not disputed that, at the relevant times, Cliff Top's charges to McGinty for turkey and chicken meat respectively were (per pound) 53 and 70 pence rising after December 1995 to 58 and 80 pence.[30]No expert evidence was called by anybody as to the pricing of poultry meat or the state of the market. But the prosecution called Graham Peter Greene a long-standing customer of Cliff Top. He gave evidence of the prices he paid at these times for turkey and said that they ranged from 35 to 38 pence. He agreed in cross-examination that he was more interested in the economy than the quality end of the range.[31]Also in cross-examination sales literature from another company, Anglian Meat Products, which included some price lists was put to him. He agreed that a brochure showed that that company in December 1999 was selling into the pet food market turkey and chicken at 57 and 73 pence respectively. He had not himself dealt with this supplier and therefore had no direct experience of its product, or whether and to what extent it corresponded in terms of quality, packaging and presentation with that offered by Cliff Top. The defence plainly saw this as important evidence for their case but the prosecution considered it was of minor significance and marginal relevance.[32]It was submitted that the judge was under a duty to explain to the jury the evidential significance of the prosecution's contentions on price and to set out the defendant's case. It seems to us that the jury can have been in no doubt that Cliff Top's apparently high selling price was said by the prosecution to be evidence of knowledge on the part of Tantram that his product was going into the human food chain. The judge dealt with this aspect of the evidence in the course of a general reminder of the thrust of the evidence and submissions on behalf of Tantram. He said: "Mr. Tantram, he said, was able to exploit the market in fixing prices to McGinty because he was simply able to do it. The prices he was selling at compared to that price list with Anglian Meats – of course you do not know what overheads Anglian Meats had but that comparison is there for you to make if you find it instructive to do so".[33]In our judgment this left the issue fairly for the jury to decide. It was open to them, depending on the view they took of the evidence of Mr. Greene, to treat the AMP prices as undermining the prosecution's case or to attach little weight to them. We do not consider that the judge needed to do any more. We therefore reject this ground.[34]On behalf of Andrew Boid, Mr Richardson QC, criticised the judge for posing twenty questions for the jury's consideration at the conclusion of his summing-up. He submitted that this was the stuff of advocacy, albeit not in an advocate's style, and he referred to R v Wood [1996] 1 Cr App R 207. There were questions favourable to the defence which could also have been posed. In our judgment the twenty questions were helpful to the jury in focusing on important matters. They were fair, not suggesting answers. And they cannot be said to have unbalanced the summing-up adversely to Andrew Boid. This ground fails.[35]For Clive Boid, Mr Bourne-Arton QC in submissions adopted by Mr Richardson QC, criticised the judge's direction following an early note from the jury on 7th December. This asked, as

the judge rehearsed it to counsel:

"Firstly if Cohen knew about the Pedigree fraud is it then classed as a fraud against Pedigree as he was part of Pedigree. Secondly, can a defendant be charged with a conspiracy with somebody other than another defendant in respect of count 2"
. It was submitted to the judge and to this court that the judge should have directed the jury that the answer to both questions was "No". He did not give such a direction in relation to the first question. Instead he reminded the jury of the prosecution case that Cohen never knew the source of the product. He then rehearsed Andrew Boid's evidence in chief and cross-examination which, in summary, was that Cohen came to know about the nature of the product after Pedigree had received the first delivery. He then reminded the jury that the allegation was conspiracy to defraud Pedigree by delivering pet food as edible food and this would be proved if two or more persons named in the counts so agreed even if "Cohen discovered what was going on after the first delivery". Mr Bourne-Arton conceded that this direction was technically correct. But, he said, it was not the way in which the case had proceeded. The judge was therefore moving the goalposts. Furthermore, in addition to Andrew Boid's evidence, the judge should have reminded the jury that they could infer knowledge by Cohen because of the market dearth of suitable product from other sources and because Pedigree's quality controllers would know it was pet grade. In our judgment, the approach taken by the judge is not open to criticism. The direction he gave as to the law was correct. He focused the jury's attention on the stark and real issue as to whether Cohen or Andrew Boid's evidence as to knowledge was to be believed and he fully rehearsed Andrew Boid's account. He did not move the goalposts. No unfairness resulted. This ground fails.[36]We turn to the difficulties which occurred on and from 14th December. A number of interrelated questions arise. They can perhaps best be summarised as follows:(i) ought the judge to have disclosed the contents of the first note to counsel when he first received it and did his failure to do so impair the safety of the verdicts delivered on the afternoon of the 14th?(ii) after those verdicts had been delivered was it permissible for them to be changed and/or should the jury have been discharged?(iii) did the judge's direction on the afternoon of the 18th about finishing their task put improper pressure on the jury?(iv) what significance should be attached to the foreman's letter? We have had helpful submissions on behalf of all of the appellants and the Crown in relation to all these questions and related matters.[37]So far as the first note is concerned, it would in our judgment have been preferable if the judge, when he received it, had communicated its substance to the Bar. The general principle is that enunciated by Lord Goddard CJ in Green [1950] 34 Cr App R 38 "Any communication between a jury and the presiding judge must be read out in court, so that both parties, the prosecution and the defence, may know what the jury are asking and what is the answer " It is true that in the present case the note referred, as the judge said, to voting figures. But it did so in unspecified terms and it would, as was suggested in Townsend [1982] 74 Crim App R 218 have both been possible and appropriate for the judge to tell counsel that he had a note showing unanimity on some counts and a division of opinion on others and inviting submissions as to the course to be followed in relation to the taking of verdicts and the giving of a majority direction. The correct principle is that stated by Lord Lane CJ in R v Gorman [1987] 85 Cr App R 121 at 126 "…certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to considered its verdict. First of all, if the communication raises something unconnected with the trial, for example a request for some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court... Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court and then, when the jury returns, the judge will deal with their communication. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed ."[38]That approach was recently endorsed by the majority opinion of the Privy Council delivered by Lord Steyn in R v Ramstead [1999] 2 AC 92 . We accept Mr Bourne-Arton's submission that the requirement for openness in relation to communications between jury and judge is of such paramount importance that the substance of a note should almost always be disclosed even where the precise terms cannot properly be disclosed. We also accept Mr Macdonald's submission that, in relation to voting, the more specific the note the less ready and the less specific the more ready the judge should be to disclose its terms.[39]That said, it is in our judgment impossible to contend that the judge's initial failure to disclose either the terms or substance of the note can have had any impact on what happened next in the taking of the verdicts and the giving of a majority direction in relation to Bibby. Whatever submissions had been made by counsel had they known the contents of the note, it is, in our judgment, inconceivable that the judge could or would have followed any course at that stage other than to take the unanimous verdicts which the jury had indicated they had reached and to give them a majority direction in relation to other counts. There is, accordingly, no reason to regard non-disclosure of the contents of that note as having any impact on the safety of the verdicts.[40]So far as the ten unanimous verdicts returned at 3.21 pm are concerned, it is to be noted that, although in no case did the Clerk of the Court ask the confirmatory question following the verdicts as to whether that was the verdict of them all, in each case he had asked whether they had reached a verdict on which they were all agreed on each count in relation to each defendant. It is also to be noted that it is common ground at the Bar that this was a highly conscientious jury who had, particularly through their foreman, displayed close attention to the case. It is also common ground that neither when the verdicts were announced, nor when Clive Boid, Wilson and Powell were discharged, nor at any stage before retiring again at 3.28 pm after a majority direction had been given in relation to Bibby, was there any sign of dissent from any member of the jury in relation to the verdicts which had been given. It is also to be noted, as we have said, that although the first note indicated 5 unanimous verdicts, 10 were delivered and when, in due course they came, the second note implied that there were 5 or 6 unanimous verdicts and the third note that there were 4.[41]A number of authorities bear on this matter. In R v Andrews [1986] 82 Cr App R 148 Simon Brown LJ giving the reserved judgment of the Court in which Lord Lane CJ presided said at 154 "…Where the jury seeks to alter a verdict which has been pronounced by the foreman, the judge has a discretion whether to allow the alteration to be made. In exercising that discretion he will, it goes without saying, take into account all the circumstances of the case; in particular the important considerations will be the length of time which has elapsed between the original verdict and the moment when the jury express their wish to alter it, the probable reason for the initial mistake, the necessity to ensure that justice is done not only to the defendant but also to the prosecution. The fact that the defendant has been discharged from custody is one of the factors but is not necessarily fatal to the judge's discretion to alter the verdict to one of guilty. If the jury have been discharged and a fortiori if they have dispersed, it might well be impossible for the judge to allow the verdict to change...Clearly if there were any question of the jury's verdict being altered as a result of anything they heard after returning their initial verdict, then there could be no question of allowing the fresh verdict to be returned. " In Lalchan Nanan [1986] 83 Cr App R 292 at 299 Lord Goff delivering the opinion of the Privy Council said:
"The mere fact that a verdict has been pronounced in the sight and hearing of all the jury without protest, does not lead to an irrevocable presumption of assent."
As Atkin LJ said in Ellis v Deheer [1922] 2 KB 113 at 120 there will in such circumstances be " a prima facie presumption that all assented to it, but that presumption may be rebutted. Circumstances may arise in connection with the delivery of the verdict showing that they did not all assent". In Froud [1990] Crim LR 197 the appeal was dismissed when a verdict of not guilty had been corrected almost instantaneously and the judge was held to have rightly exercised his discretion in accepting the amendment. In Follon [1994) Crim LR 225 the conviction was quashed where the jury, having been unable to agree and been discharged, there was a disturbance in the public gallery. The judge asked the jury to retire again and they returned a verdict of guilty. In Maloney [1996] 2 Cr App R 303 the appeal was dismissed when the jury, having returned a verdict of guilty following a majority direction, were not asked how many agreed and dissented but were discharged. They were reconvened the following Monday, not having further deliberated, and there was no reason to think that the 11-1 figures then given by the foreman in the presence of the other jurors were not correct. In Hart [1998] Crim LR 417 this court declined to quash an unambiguous unanimous verdict of guilty which was said to be surprising and the jury being said to have exhibited some unspecified signs of unease when they returned the verdict. In Millward [1999] 1 Cr App R 61 at 65G Lord Bingham CJ having referred to section 8 of the Contempt of Court Act said "It would in our judgment set a very dangerous precedent if, save in quite extraordinary circumstances, an apparently unanimous verdict of a jury delivered in open court, and not then and there challenged by any juror, were to be re-opened and subjected to scrutiny. Suppose, for example, a majority verdict of 10 to2 were publicly announced without contradiction and a third juror thereafter claimed to have dissented. Or suppose there were in the circumstances of a case such as the present, disagreement whether the jurors had dissented or not. It is very difficult to see how that is a question which this court could properly investigate." (We would mention that in Orgles [1994] 98 Cr App R 185 on which Mr Bourne-Arton placed reliance in support of his submission that the judge, following the foreman's letter, should have made enquiries of the jury as to their ability to perform loyally to their oath, no reference was made to s8 of the Contempt of Court Act. We accordingly entertain some doubt as to the correctness of principle (e) on p189 of the judgment in that case, unless it is read subject to section 8).[42]There is, on the authorities, no doubt that the trial judge in the present case had a discretion whether or not to permit amendment of the verdicts which had been delivered. But in our judgment, not without some hesitation, we are of the view that he exercised his discretion wrongly and in a way which was not open to him. We say this because the 27 minute delay between the jury leaving court and sending the second note, even allowing for the three minutes or so it would have taken to walk from the court to the jury room and for the note to be delivered, was such as to provide the opportunity for further deliberation. When to this feature is added the varying numbers in relation to unanimous verdicts to which we have drawn attention this, as it seems to us, is a case not only outwith the category of prompt correction but one in which both the opportunity for further deliberation and the possibility of a change of mind both arise,. In our judgment and as Mr Nolan QC for the Crown rightly accepted, a possibility that the jury may have changed their minds is sufficient to question the reliability of the amendments to their verdicts. As Lord Justice Watkins pointed out in Williams [1987] 84 Cr App R 274 at 277 " The appearance of things may be as important as almost anything else "[43]Accordingly we do not regard this case as being one in which it was appropriate for the judge to re-open the 10 unanimous verdicts which had been delivered without dissent.[44]It follows that the convictions of Clive Boid and Tantram on count 2 must be quashed and their appeals against convistion allowed to that extent. We emphasise that at no stage did any of the communications from the jury suggest that the unanimous verdicts of guilty in relation to Andrew Boid on counts 1 and 2 and Tantram on count 1 were other than correct . There is therefore in our judgment, no reason to regard those 3 verdicts as unsafe subject to the significance of the foreman's letter, to which we now turn.[45]So far as the foreman's letter is concerned, it was submitted that it rendered unsafe the verdicts of guilty in relation to Andrew Boid on counts 1 and 2 and in relation to Tantram on count 1. We are unable to accept this for a number of reasons. First, the judge was right not to conduct an enquiry into its terms (See eg Thompson [1962] 46 Cr App R 72). Secondly, there is nothing in the document, including the contents of paragraph 1 (to which, in our judgment, and in the light of section 8 of the Contempt of Court Act it is impermissible to refer) which gives any reason to doubt the safety of any of these verdicts. Thirdly, it was not written until 15th December and its relevant tone is prospective not retrospective. Fourthly, there is nothing to suggest that the personal matters to which paragraphs 2 and 3 refer had caused the foreman to depart from his oath nor, in the light of subsequent events, is there any reason to believe that the foreman did other than his duty in continuing to consider the matters which the jury had been directed to consider over the next few days. Accordingly the appeals of Andrew Boid and of Tantram on count 1 are dismissed.[46]We turn to the appellant Bibby. It was submitted by Mr Durham-Hall QC that his conviction on count 1 on 20th December should be regarded as unsafe because of the events of 14th December and thereafter. We do not agree. The jury plainly indicated on the afternoon of 14th December that they had not reached a verdict in relation to Bibby. They were given a majority direction. There was, in so far as Bibby relied on the point, no improper pressure in the judge's direction to finish the job "as long as it takes". Nothing in any of the notes or the foreman's letter or in subsequent events lends support to any belief that thereafter they failed to carry out their duty in a proper manner in relation to Bibby. Indeed, although, as we have concluded, their further deliberations in relation to the other defendants was rendered nugatory, there is no reason to believe they did other than carry out their task conscientiously as they had been directed, over the next few days. In our judgment there is no reason to regard Bibby's conviction as unsafe and his appeal is dismissed.[47]As to sentence it is submitted that the judge's starting point on count 1 was too high because there was no evidence of any actual injury to health and, although the overall gross profit was said by the judge to be, at rock bottom, £1 to £2 million there was no evidence of profit sharing in relation to this count. But we see nothing wrong in the judge's conclusion that each participant in the conspiracy must bear a responsibility for the total amount involved. He was right to stress that most of the dealing was in cash and that there was greed and dishonesty on a massive scale over a long period of time at the heart of the fraud. He was also entitled to take into account that innocent members of the work force at Wells, Barbot Hall and Cliff Top were discouraged from asking questions. The judge was right to say that the risk to public health was a serious aggravating feature. The judge took into account the good character of all the appellants, delay, and the late pleas of guilty by McGinty and Smith. He was entitled to say that this type of fraud was unprecedented on such a scale. He had in mind the maximum sentence of 10 years for the offence of conspiracy and the maximum sentence of 2 years available for the offence of conspiracy to contravene section 8 of the Food Safety Act 1990, a count in relation to which had been laid against all of the appellants but not proceeded with. The judge was entitled to conclude, in the light of the verdicts on the other counts, that there would have been no defence to that charge had it been proceeded with. Finally, the judge was, in our judgment, entirely right to take the view that a deterrent sentence was called for to discourage others from fraudulent activity of this kind endangering public health. The judge took into account that the prime mover in relation to these conspiracies was none of these appellants. But Andrew Boid and Tantram were clearly main players. In the light of all of these considerations, the judge's starting point at 6 years, following a trial, was, in our judgment, entirely appropriate. There is nothing in the personal circumstances, the impact of prison upon them or the subsequent behaviour in prison of either of them to persuade us that a shorter term than 6 years was appropriate on count 1 in relation to either Andrew Boid, who is 33, or Tantram who is 48. We do, however, accept that there was no sufficient basis for imposing a longer sentence on Andrew Boid than on Tantram. Accordingly, we quash the sentence of 7 years on Andrew Boid on count 1 and substitute for it a sentence of 6 years. To that extent his appeal is allowed. The consecutive sentence of 1 year on count 2 was in our judgment unimpeachable. The total sentence which he will serve is therefore 7 years rather than the 8 imposed by the trial judge. Tantram's appeal against sentence is dismissed.[48]Bibby's role was subordinate and we accept that he was a hired hand rather than the brains of the enterprise, but he played an important role. His sentence was half that which we regard as appropriate for the major players. There is no arguable point on disparity. His appeal is dismissed.[49]For McGinty, Mr Watson has, in our judgment, a legitimate complaint that the judge declined on 14th and again on 22nd December to order a pre-sentence report. However, this Court has before it a letter from a probation officer who saw McGinty on 19th March. He is now 50 and deeply regrets his involvement in these matters. He has the advantage of a plea of guilty, albeit at a late stage. There is clearly much good in him. In the summer of 2000 he drove relief trucks for Kosovan refugees and has, in the 4 years since this conspiracy, completely re-built his life following the collapse of his business and bankruptcy. No part of the delay which has occurred was contributed to by him and, in particular, he did not contest the committal proceedings. In all these circumstances, we take the view that a 1 year difference in his sentence from that appropriate for Andrew Boid and Tantram inadequately reflected his plea of guilty. In those circumstances, his sentence of 5 years is quashed. We substitute a sentence of 4 years imprisonment. To that extent his appeal is allowed.[50]On behalf of Smith, Miss Dempster stressed that he is 64 years of age and his involvement was at the end of the chain of criminal activity, where he received the product already trimmed. Furthermore there were times when he was by-passed by McGinty who went directly to the ultimate wholesale purchasers. It is also said that the judge, without indicating to counsel while mitigating any intention so to do, rejected 2 of the 8 elements in Smiths' written basis of plea. He has given assistance to the authorities in relation to the investigation of fraud and he was required to attend court each day during the 2 weeks of the jury's retirement. In the light of these considerations there is, in our judgment, force in the submission that 3 years 9 months was too long a sentence for him. We quash that sentence and substitute a sentence of 3 years' imprisonment. To that extent his appeal is allowed.

Cited in 1 later judgment