Platten, R. v [2006] EWCA Crim 140

Case No 200402102/D4[2006] EWCA Crim 140
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Worcester Crown Court
His Honour Judge Mott
2T20027381
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 15 th February 2006
Before
LORD JUSTICE WALLERMR JUSTICE GRAYMRS JUSTICE COX
Between
RRespondentPlattenAppellant
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Peter Cooke and Richard Adams (instructed by CPS) for RespondentIan Winter (instructed by Talbots Solicitors) for Appellant
Judgment
[1]By count 1 on the indictment with which this appeal is concerned Martin Formby, Stephen Shannon, Mark Harry Nixon and Gayle Annette Formby were charged with conspiring to supply a Class B drug, cannabis. By count 2 of the same indictment, the same four persons, together with Carl Anthony Platten, were charged with conspiring to supply a Class A drug, cocaine.[2]On the 8th December 2003 at the Crown Court at Worcester Martin Formby (“Mr Formby”) pleaded guilty on re-arraignment to both counts. Mark Nixon pleaded guilty to conspiring to supply, count 1, the cannabis count. He pleaded not guilty to count 2, the cocaine count. Gayle Formby pleaded not guilty to count 1 and count 2. Stephen Shannon pleaded guilty to count 1, the cannabis count, and to count 3, supplying a Class B drug amphetamine, but pleaded not guilty to count 2, the cocaine count.[3]There was thus a trial, which commenced on the 7th January 2004, at which the issues were(1) whether Stephen Shannon was guilty on count 2, the cocaine count;(2) whether Mark Nixon was guilty on count 2, the cocaine count;(3) whether Gayle Formby was guilty on either count 1 and/or count2; and finally(4) whether Carl Platten was guilty on Count 2, the cocaine count.[4]The pleas of guilty entered prior to the commencement of the trial were, without protest from those representing the defendants on trial, put in evidence before the jury. To add to those pleas, on 22nd January 2004, half-way through the trial, Stephen Shannon changed his plea to Count 2 and pleaded guilty to that Count.[5]In the result, following the trial Carl Platten was convicted by a majority of conspiring to supply a Class A drug, cocaine, on count 2. Mark Nixon was convicted of conspiring to supply a Class A drug, count 2. Gayle Formby was convicted of conspiring to supply a Class B drug (cannabis), count 1, and of conspiring to supply a Class A drug (cocaine), count 2.[6]Mr Formby was sentenced to ten years imprisonment on count 1 and fourteen years’ imprisonment on count 2, those sentences to run concurrently. Shannon was sentenced to ten years’ imprisonment on count 1 and sixteen years’ imprisonment on count 2, together with five years’ imprisonment on count 3, the sentences to run concurrently. Mark Nixon was sentenced to nine years’ imprisonment on count 1 and thirteen years’ imprisonment on count 2, the sentences to run concurrently. Gayle Formby was sentenced to four years’ imprisonment on count 1 and seven years’ imprisonment on count 2, the sentences to run concurrently. Carl Platten was sentenced to nine years’ imprisonment.[7]Platten applied for leave to appeal against conviction on three grounds. The single judge refused permission on grounds one and two but referred ground three to the full count, suggesting that certain witness statement should be obtained and further suggesting that PII material could be considered by the full court after such statements had been provided.[8]The single judge refused Mr Formby permission to appeal against sentence and refused Shannon permission to appeal against sentence.[9]Platten renewed his application for permission to appeal the grounds on which the single judge refused permission and Mr Formby and Shannon have renewed their applications for leave to appeal against sentence. We will deal with Platten’s appeal against conviction first.[10]So far as Platten is concerned, he has been represented by Mr Winter, who in fact appeared for Nixon at the trial. Statements were obtained, as indicated by the single judge, and we reviewed the PII material in the light of those statements and with the assistance of Mr Cooke of the prosecution. That review was carried out ex parte. There were also statements in rebuttal on behalf of the prosecution, which were placed before us. It is unnecessary to enter into any detailed consideration of ground 3 because having informed Mr Winter that our review of the PII material had produced no evidence of any kind which supported ground 3, he wisely did not press it.[11]Much less straightforward is the argument presented by Mr Winter in relation to grounds 1 and 2. These raise once again the complex and difficult area as to the admissibility of what might otherwise be hearsay evidence in the context of a conspiracy. We thought it right to grant Platten permission to appeal conviction on grounds 1 and 2 and it is those grounds with which this aspect of the judgment deals.

The Facts

[12]The case was concerned with two conspiracies. The first conspiracy related to the importation of cannabis and that essentially took place, on the Crown’s case, over a period of a year between February and December 2002. The second conspiracy related to a conspiracy to import cocaine and that conspiracy seems to have been formulated and carried out in the second half of 2002.[13]The essence of the conspiracy relating to cannabis was that the conspirators used industrial heating units. On eleven occasions between January and August 2002 a company owned by Nixon, called David Mann Transport, assisted with the transportation of heating units, pallets and crates. On each occasion the items were shipped abroad and then returned to the United Kingdom. Each time they were returned to the United Kingdom by lorry they contained large amounts of cannabis. Between February and December 2002 Mr Formby was under police surveillance. On some occasions when the heating units were returned to the United Kingdom Mr Formby was seen to unload the lorries into a lock-up in Belvedere. The conspiracy to import cannabis came to an end on the 7th August 2002, when a lorry was intercepted by HM Customs at Coquelles and was found to contain 987 gms of cannabis resin concealed within the heaters which were being transported.[14]Between July and November 2002 covert recording devices were placed in Mr Formby’s car and boot. A number of conversations between Mr Formby and his wife, and Mr Formby and others, and a number of telephone conversations were recorded. It seems that Mr Formby was desperate for money and so had been behind the second conspiracy to import cocaine from Holland as it would yield a high profit. Instead of importing the drugs on a dedicated lorry as had been done so far as the cannabis was concerned, Mr Formby decided to place the cocaine in a heater but “on groupage”, which meant it would simply join other loads.[15]During the course of a conversation with his wife on the 20th July 2002, Mr Formby was heard to say that Shannon had suggested to him that they start using “Moley’s system”. ‘Moley’ was the applicant Platten’s nickname and Mr Formby had known Platten for a considerable time. There is no dispute that Mr Formby did arrange, through Nixon, for the shipment to be transported from Amsterdam by Danzas, the company where Platten (or Moley) worked. The shipment was to be received in the Danzas office in Coventry. It had false consignee details and a false address, the invoices indicating that the consignee was a company called Elfin International. There is no dispute that Platten tracked the consignment for Mr Formby and that it arrived on the 18th December 2002. When it arrived it contained the cocaine.[16]It was the prosecution case that Platten was working at Danzas as an insider. He, according to the prosecution, was providing information upon the system before the cargo was delivered, was keeping an eye on the cargo and reporting its whereabouts during transit, and arranging for the cargo to be brought out of the depot.[17]The defence case, so far as Platten was concerned, was that although he did not dispute there was a conspiracy to supply cocaine, he was not a party to that conspiracy. He worked at Danzas as a Road Star agent, which involved the routing and tracking of cargo for customers, and the tracking that he did of this consignment was simply done in the ordinary course of his business and without any knowledge as to what the shipment contained.[18]The issue for the jury so far as Platten was concerned was whether he was a party to the conspiracy or not. At the same time of course the jury were considering whether Gayle Formby was a party to the conspiracy to supply Class B drugs, and/or the conspiracy to import the cocaine. They were further considering whether Stephen Shannon and Mark Nixon were parties to the conspiracy to supply the Class A drug cocaine, although once Shannon had pleaded guilty during the trial that issue was withdrawn from them.[19]The first ground of appeal on behalf of Platten contains various elements;(1) that the trial judge wrongly directed the jury that inadmissible conversations between alleged co-conspirators and between those co-conspirators and others, to which the appellant was not a party, were evidence against the appellant, both of the stage that the conspiracy had reached and as evidence that the appellant was a party to that conspiracy.(2) that the learned judge wrongly failed to exclude certain of those conversations from the evidence the jury heard;(3) that the learned judge wrongly directed the jury that there was evidence other than those conversations upon which they could safely conclude that the appellant was a party to the conspiracy. In relation to (3) it is said that the learned trial judge wrongly failed to direct the jury as to what that evidence was and failed to direct them that only if they were sure that that evidence amounted to some evidence of the appellant being a party to the conspiracy could they go on to rely on the conversations to which he was not a party as evidence against him.(4) It is said that the learned trial judge wrongly failed to direct the jury that the conversations that took place prior to the appellant joining the conspiracy could not be evidence of his participation in the conspiracy. Indeed it is said that he directed them to the contrary.[20]The second ground of appeal is in these terms:- “The learned trial judge failed to give consideration to the revisions of s.74 of the Police and Criminal Evidence Act 1984. The pleas of guilty of two of the appellant’s co-accused, Formby and Shannon, were made known to the jury without evidence being adduced about them, without consideration being given to their admissibility and without a proper direction being given to the jury about them. The directions given in relation to the conversations, the subject of the first ground of appeal, would have tended the jury to conclude that those that pleaded guilty, and in particular that of Mr Formby, were evidence that the appellant, with whom he had admitted conspiring, was indeed a conspirator.”[21]We make one or two preliminary observations. First, ground 1 is concerned with what has been termed “the eavesdrop”, that is to say the recording of conversations or, in most instances, one end of telephone conversations by surveillance equipment. No point was taken in the course of the trial as to the admissibility of any of this material so far as the appellant was concerned. Indeed at one point an indication was given by counsel then acting for the appellant that he might wish to make submissions on admissibility, but he then indicated as we understand it that he no longer wished to do so.[22]Second, Clarke LJ in R v Smart and Beard [202] EWCA Crim 772 at para 8 approved the following passage from Archbold, which contains a helpful test in relation to the admissibility of evidence in a conspiracy case. “It is a matter for the trial judge whether any act or declaration is admissible to prove the participation of another. In particular, the judge must be satisfied that the act or declaration(i) was made by a conspirator,(ii) that it was reasonably open to the interpretation that it was made in the furtherance of the alleged agreement and(iii) that there is some further evidence beyond the document or utterance itself to prove that the other party was a party to the agreement.”[23]Third, as the above passage makes clear, the admissibility of evidence is for the judge. That point is important for two reasons. First, we accept that even if no submissions were made that evidence was inadmissible, the judge still has a duty not to allow evidence that is inadmissible to go before the jury.[24]Our second reason for emphasising that admissibility is for the judge is to deal with a point which Mr Winter seemed to be making as to the duty of the judge in summing the evidence up to the jury. Mr Winter accepted the principle that evidence in a conspiracy case can be “conditionally” admissible. That is to say that the evidence may be admitted before there is any direct evidence fulfilling condition (iii) in the above quotation from Archbold. It is only once all the evidence has been given on behalf of the Crown that a final decision can be taken on the question of admissibility. The important point to emphasis is that it is for the judge to rule on admissibility as at that stage.[25]Mr Winter seemed to be suggesting that the judge should, in his summing up, have analysed that material which was admissible as direct evidence, fulfilling condition (iii) and then summarised that material which would only be conditionally admissible, leaving it to the jury to decide ultimately whether they were sure that condition (iii) had been satisfied and thus whether evidence was admissible under condition (ii). He was suggesting that it was for the judge to give directions to the jury enabling them to test whether there was evidence that complied with the three stage test approved in R v Smart.[26]That submission is quite contrary to the views of this court expressed in R v Barham [1997] 2 Cr App R119. In the judgment of the court delivered by Kennedy LJ there is the following passage at page 131-132 :- “…..Mr Moses submits that even if the trial judge was entitled to find that the circumstantial evidence was sufficient to amount to reasonable evidence or a prima facie case against Barham, so as to render the recorded evidence admissible, the jury should have been told in terms not to act on the latter evidence alone, because although apparently compelling it was hearsay, and therefore subject to all the disadvantages of evidence of that king, including in particular the restriction on the defendant’s opportunity to probe the evidence by cross-examination because he was not present at the material time. Having given that warning Mr Moses submits that the judge should have gone on to identify for the jury the circumstantial evidence upon which the prosecution relied, so that they could give effect to the warning which they had been given. To support his contentions in relation to this ground of appeal Mr Moses invited our attention to cases decided in Canada, New Zealand and Australia as well as in t his country. He accepted authorities, because the Canadian approach is extremely complex, and that approach, together with the two New Zealand cases of Humphries (1982) 2 NZLR 353 and Buckton (1985) 2 NZLR 257 was considered and approved by the High Court of Australia in Ahern v R (1988) ALR 162, so it is to that decision that we now turn. At p 168 in the judgment of the Court approval is expressed of the test adopted in Tripodi and the judgment continues:
“Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.”
The words “participation” and “participant” need to be emphasised, such evidence being admissible to prove the conspiracy itself. We have, of course, already looked at the reasonable evidence threshold test in relation to Mr Moses’ first ground of appeal. Still on p168 of the judgment of the Court continues:
“The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance . . . But controversy exists over whether, even after the evidence had been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and that if there is not, they ought t=not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue.”
The Court considered how the problem had been addressed in other jurisdictions, including England, where it was suggested that little attention had been given to it. At p171 the Court concluded:- “The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the members of the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.” “Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.” The words “participation” and “participant” need to be emphasised, such evidence being admissible to prove the conspiracy itself. We have, of course, already looked at the reasonable evidence threshold test in relation to Mr Moses’ first ground of appeal. Still on p168 of the judgment of the Court continues:
“The question remains whether the trial judge or the jury should ultimately determine the existence or otherwise of reasonable independent evidence of the participation of an alleged conspirator as a ground for the use against him of evidence of the acts and declarations of other conspirators which took place in his absence. Obviously the matter must be one for the determination of the trial judge in the first instance . . . But controversy exists over whether, even after the evidence had been admitted, the jury should be instructed that it is for them to determine whether there is reasonable independent evidence of participation and that if there is not, they ought t=not to use the evidence of the acts and declarations of the other conspirators for the purpose of deciding that issue.”
The Court considered how the problem had been addressed in other jurisdictions, including England, where it was suggested that little attention had been given to it. At p171 the Court concluded:- “The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the members of the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.”[27]The question of admissibility is for the judge alone and in our view no criticism can be made of the summing up in this regard. The judge directed the jury as follows:- “You will realise that you have heard a lot of evidence in the covert recordings of a defendant or defendants – and I include the defendants who have pleaded guilty – defendants in conversation talking about other defendants who were not party to the conversation. This really does not apply to Gayle Formby because all the conversations with are said to be evidence against her were also with her. Indeed it is mostly in the conversations with her, although by no means entirely, that other people are mentioned – Martin Formby talking about other people. The normal rule, as you might expect, is that if defendants A and B are overheard talking about the subject matter of the case, then what they say to each other can only be evidence against – or, of course, may be favourable to – but can only be evidence relevant to them, because they are the people who are engaged in the conversation. It can’t be evidence against somebody else who they are talking about. In conspiracy cases the rules are different, because the allegation is that the defendants are a group with a common aim, doing and saying things over time in order to put their plan into effect. They may do this by actions or they may do it by words or a combination of the two. So the law has developed a principle which relaxes the normal rule to some degree. The position is this: that although you must not convict any defendant against whom you think that this type of conversation between others is the only evidence pointing to his guilt, nevertheless you are entitled to take into account and to rely upon evidence of what you hear, for example, Formby saying to his wife about other defendants. You are entitled to take it into account against those other defendants. In the case of each of these defendants, it seems to me there is other evidence, if you accept it, on which you could reach the conclusion that he was guilty on count 2 of the indictment, could do. Nixon, of course, admits that he was in a conspiracy at that time, and the issue in his case is as to his knowledge and belief about the drug. So because there is other evidence which could support count 2 quite apart from these conversations that I am talking about, the law is that they become admissible against the defendants who are being talked about. So, for example, what Martin Formby is overheard saying about Platten and his supposed role or alleged role has become admissible evidence against Plattten. You can put that together with the other evidence which relates to him in deciding what the right verdict is in his case. And so on with the other defendants. But, as I say, if you in the end come to the conclusion that the only evidence actually points to a defendant’s guilt is the evidence of conversations between other people about him, then you cannot convict him on that evidence alone. You are also entitled to look, of course, to the taped conversations to see what stage of preparation any conspiracy had reached at any particular time, what remained to be done, how and when it was to be done and by whom. I remind you, if you need reminding, that you have not had the chance to assess Martin Formby face to face. You have heard a lot about him, most of it unfavourable. It has been suggested that he was unreliable, unpredictable and sometimes spoke in riddles. You will consider all this. As I say, you will remember above all that you have not had t he chance to assess him in the same way that you would assess the witness. On the other hand, of course, you know that when he was talking he didn’t know that he was being overheard. He wasn’t trying to give evidence to anybody. He was just talking as he would have talked if no bug had been there at all. It follows from the fact that you haven’t seen or heard him that nobody else in the case who is affected by what he says about them has had the chance to cross-examine him. It is right that you should bear that very much in mind. But those words of caution and the knowledge that it is, as it were, an exceptional type of evidence which is not usually admissible in cases, it is entirely for you to assess the import and reliability of what he was saying.”[28]He then went through the surveillance evidence chronologically. That evidence dealt with the “cannabis conspiracy”, a matter with which the jury were concerned because of the plea a Gayle Formby. He then dealt with the evidence relating to the “cocaine conspiracy” on which Gail Formby, Mark Nixon and the appellant were being tried. He did not differentiate between the evidence which was direct and that which was admissible (if it was admissible) because it fulfilled condition (ii). As we have emphasised, admissibility was for the judge and we do not think therefore that the judge can be criticised for the above directions, provided that he was correct in ruling that there was evidence that fulfilled condition (iii), and the evidence was admissible in accordance with condition with (ii). He made it clear to the jury that they had to be sure that the appellant was a party to the conspiracy. He made it clear to the jury that they had to be sure that the appellant, if he was a party to the conspiracy, knew that the conspiracy was concerned with Class A drugs.[29]As regards the question whether the appellant had knowledge that the conspiracy was concerned with Class A drugs, we were at one time concerned that even if the surveillance material was admissible, it did not provide any evidence of the appellant’s knowledge. In R v Smart the evidence in relation to which there was a dispute as to its admissibility, did provide the evidence of knowledge. Even if the materials from the eavesdrop was all admissible in the instant case, it was difficult to see that it provided any evidence of the appellant’s knowledge that the conspiracy was concerned with Class A drugs. But Mr Cooke, for the Crown, made clear that so far as knowledge was concerned, it was not the surveillance material on which the Crown relied. The Crown submitted that the appellant’s knowledge could be inferred from the fact that cocaine was found in the consignment, only one heater was being used (as compared with the many when cannabis was the subject of the conspiracy) and on the amount of money being offered. The Crown further relied on the fact that the appellant lied in interview and on the fact that it was never part of the appellant’s case that he was a party to some conspiracy but did not know that the conspiracy was concerned with a Class A drug as opposed to some other drug such as cannabis. The appellant’s case was simply that he was not a party to any conspiracy at all. In our view there was evidence outside the eavesdrop evidence from which if Platten was a party to the second conspiracy, Platten’s knowledge that the conspiracy was concerned with cocaine could be inferred, and ultimately we did not understand Mr Winter to contest this point with any vigour.[30]Against the above background we turn to the question whether the eavesdrop evidence in this case relied on against Platten fulfilled conditions (i), (ii) and (iii) of the quotation in paragraph 21 above.[31]It was not contested that condition (i) was satisfied. All the evidence came from declarations by Mr Formby. He pleaded guilty to both conspiracy offences on the indictment.[32]As regards condition (iii), in Mr Winter’s original advice he summarised the direct evidence against the appellant in sub-paragraphs i) – xxix). Mr Winter would seem to suggest in paragraph 8 of that advice that evidence fulfilling condition (ii) should not have been admitted because at the time of its admission certain direct evidence had not been given. That submission falls foul of the “conditional admissibility” principle which applies in conspiracy cases. Even if, however, one were to exclude the aspects of direct evidence to which Mr Winter refers on the basis, for example, that the evidence was not part of the Crown’s case, there is still in our view direct evidence which fulfils condition (iii). Indeed we did not ultimately understand Mr Winter seriously to press the point that condition (iii) was not satisfied.[33]The key question is whether the eavesdrop evidence, in so far as it related to Platten, failed to meet condition (ii). It was this question that was at the forefront of Mr Winter’s submissions.[34]Mr Winter submitted that in order to fulfil condition (ii) the declaration must be “in furtherance” of the conspiracy and he submitted it must thus be a statement that “moves the conspiracy forward”. He submitted that the declaration could not be that of a conspirator providing a description of past events. It could not be “mere narrative”. One finds somewhat similar language in certain passages in Archbold which seek to summarise the principles. For example at paragraph 34-60b, second paragraph, the editors put it in this way:- “Matters recorded by one conspirator for his convenience, mere narratives, descriptions of past events or records made after the conclusion of the conspiracy are not in furtherance of the common design and are thus not admissible against anyone other than the maker: R v Blake (1844) 6QB 126; R v Jones, ante. Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts: Tripodi v R (1961) 104 CKR 1 at 7, approved by Glidewell LJ in R v Gray and Liggins [1995] 2 Cr App R 100, CA; R v Jones, ante. However, an aide memoire might be admissible if it enabled the author to do something pursuant to the note which was intended to advance the agreement: see R v Reeves, ante.”[35]The exclusion of what is described as “mere narrative” applies however only to “narrative” after the conclusion of the conspiracy. Statements made during the conspiracy and as part of the conspiracy, because they are part of the natural process of making the arrangements to carry out the conspiracy, will be admissible. In R v Barham (supra) at page 129 Kennedy LJ used this form of language in relation to one aspect of the evidence:- “On the following day, June 23, Llewellyn explained that he had turned down a job involving a trip to Germany and Fry explained the situation in relation to the proposed illegal importation. “The other fella’s gone back down now to where Bernie is.” It was the prosecution case that Barham was “the other fella”, and, as we have already said, he flew from Heathrow to Malaga that day. Fry did not name him but he referred to him as “the one I was with yesterday”. Fry and Barham had been seen together on June 22 at Paddington. To Llewellyn, Fry said “he’s organising things down there. So soon as it’s organised he’ll be in touch.” He also suggested a meeting sat noon on the following day and Llewellyn agreed. Mr Moses submits this is part narrative, part future arrangements, but there is nothing which advances the course of the common enterprise. In our view this is the enterprise in operation with the field organiser reassuring the driver and bringing him up to date. That is why the evidence is admissible.”[36]As that passage makes clear, the evidence is admissible when it can be said of it “this is the enterprise in operation”. Furthermore the passage emphasises that the evidence is admissible not just as to the nature and extent of the conspiracy, but also as to the participation in it of persons absent when the declarations are made. At paragraph 34-60 of Archbold the principle is described as follows:- “Ordinarily, acts done or words uttered by an offender will not be evidence against a co-accused absent at the time of the acts or declarations. However, it is now well established that the acts and declarations of any conspirator made in furtherance of the common design may be admitted as part of the evidence against any other conspirator. Such acts and declarations may provide evidence not only of the existence, nature and extent of the conspiracy, but also of the participation in it of persons absent when those acts or declarations were made.”[37]With the above in mind we turn to those parts of eavesdrop material on which Mr Winter concentrated his attack. The question in each case will be whether it was “reasonably open to the interpretation that it was made in furtherance of the agreement”. The prosecution accept that in Mr Winter’s advice dated 24th May 2004 he fairly summarises the contents of the eavesdrop. Furthermore he makes points by reference to the quotes which assist in understanding the relevance of the evidence and the points Mr Winter made. We will therefore quote the relevant sub-paragraphs of Mr Winter’s advice and then comment thereon:- “i) 20th July 2002 [eavesdrop pages F2-3]:
“they’re gonna stop using the one that we’re using now, yeah . . . And go for another system through Moley, use his system”
. This conversation took place in July 2002, four months before there was any evidence that the appellant was involved at all in anything, let alone involved in the conspiracy to supply cocaine. As R v Walters 69 Cr App R 115 and R v Governor of Pentolville Prison ex p. Osman [1990] 1 WLR 277 make clear the statement of a co-conspirator about another prior to his joining the conspiracy is only evidence of the origin, character and object of the conspiracy and not of the participation in it of that other. Instead of making this clear to the jury the learned judge said at page 27E of the summing up, “that is the first occasion that anybody picks up any reference here to Platten”.”

Comment

[38]Mr Cooke in his respondent’s skeleton would seek to suggest that this conversation was admissible because it indicated that overtures had already been made to the appellant. He submitted that the conversation could be relied on by the Crown to prove “the origin, character and object of the conspiracy”. We would have thought that later conversations in November 2002 would indicate that the appellant had not been consulted as at July 2002. This was a declaration thus by Mr Formby made before the appellant had any knowledge of a conspiracy or a proposed conspiracy. It was on this basis admissible against Gayle Formby both as evidence of the origin of the “cocaine conspiracy” and her part in that but only admissible against the appellant as evidence of the origin of the conspiracy but not his part in it. That should have been made clear by the judge. We do not however think that this was an omission of any great significance in the light of the further conversations admitted in evidence if those conversations were admissible. As a matter of common sense the jury would appreciate that this conversation simply indicated a likelihood that the appellant would be asked to do something, and until he was asked to do something he could not be a party to any agreement to do it. ii). and iii) were not ultimately relied on by Mr Winter and we need not therefore quote them. “iv. 15th November 2002 [eavesdrop page F37]: Although the telephone conversation between Mr Formby and the appellant was admissible once the phone was put down Mr Formby said to his wife “He’s up for it”. This, it is submitted, was purely narrative by Mr Formby and was not a conversation in furtherance of the conspiracy. The learned judge gave the jury no direction about this merely reminding them of the evidence.” Comment[39]The telephone conversation between Mr Formby and the appellant (prior to the phone being put down), which Mr Winter concedes was admissible, was an important conversation. In that conversation Mr Formby is recorded as suggesting that the appellant was going to “earn . . . a decent amount of money”. It is following that conversation, when the phone had been put down, that Mr Formby was recorded as saying to his wife “He’s up for it”. This is not pure narrative. It is a reasonable interpretation of the exchange between Mr Formby and his wife that they are discussing the arrangements for the carrying out of the conspiracy and confirming that at this stage the appellant has agreed to become a party to it. This is an example of the enterprise in operation. It is compelling evidence of the agreement between the conspirators being formed and of the briefing of one conspirator by another. “v) 18th November 2002 [eavesdrop page F64]: Mr and Mrs Formby had a conversation about “Moley” in which he referred to him as a “bell end”. They said that he required some “pressure” and then Mr Formby said, “He sets it up and then . . . wants to walk away”. Mrs Formby then later spoke to an unidentified person and said that, “George is mega stressed . . . this kids let him down”. A little later Mr and Mrs Formby were in conversation again. Mrs Formby asked if an unidentified person, “has . . . gone out?” and Mr Formby said, “Dunno yet, yeah there’ll be somebody there today, all I wanna do is get it dropped in, Mark’s place first, then we’ll work out with Moley how we’re going to get it in” [F65]. Later the same day [F66] Mr and Mrs Formby had a further conversation in which Mr Formby said “we’ve got to give Moley summat for taking it out. I’ll tell Moley I’ll arrange everything else”. Mrs Formby said “You’ve told him ten grand already” to which Mr Formby replied, “I ain ‘t gonna tell him ten grand, no, I’m gonna say listen I’ll arrange everything else if you bring it out and I’ll give you five grand, or even if I’ve got to give him ten grand you know what I mean, I ain’t fucking bothered, will have a chunk of money before the end of this week’s out”. The first conversationat 10.39 hours is partly purely historical and partly purely historical and partly just a complaint about the appellant. It is not a conversation intrinsic to or advancing the conspiracy. The second conversation at 10.52 hours is pure narrative by one conspirator to an unidentified person. The third conversation is questionably irrelevant since it appears to relate not to the December shipment of cocaine but to something that is to be dropped into Nixon’s yard that day, 18th November 2002. The jury should at least have been directed that they should first conclude that it related to the December importation before they could rely on it against the appellant assuming that they were sure that other direct evidence of the appellant’s role in the conspiracy existed. The last conversation at 11.42 is probably in furtherance of the conspiracy and would therefore be admissible dependent on the existence of other direct evidence proving that the appellant was party to the conspiracy. The learned judge gave the jury no direction about these conversations and merely reminded them of the evidence. At pate 45C of the transcript of the summing up he told the jury that Mr Formby was mentioning, “Platten’s part of it” when he said to Mrs Formby that he had, “got to give Moley summat for taking it out”. This was a direction that the evidence proved that Platten was party to the conspiracy.”

Comment

[41]None of these conversations are pure “narrative”. They are evidence of the conspiracy in operation. It will be typical of a conspiracy that a conspirator will be having second thoughts and then being persuaded to forget his doubts. It will be typical of conversations between conspirators that they should be discussing the roles of the other. The third conversation is not in our view irrelevant. As Mr Cooke in his respondent’s skeleton puts it “to what it relates is a matter of interpretation, but the section about “then we’ll work out with Moley how we are going to get it in” is plainly susceptible of the interpretation that it related to the cocaine conspiracy.” We also think that no further direction was called for in relation to this one conversation, but even if some criticism can be made it is minor in the context of the whole.[42]In our view these conversations were admissible. We do not think that the judge’s direction amounted to a direction that the evidence proved that the appellant was a party to the conspiracy. It was a reasonable comment as to what Mr Formby appeared to be saying.[43]vi) and vii) It is unnecessary in the light of our comments above to quote these sub-paragraphs in full. The same points arise. The conversations referred to in these paragraphs are not purely historical or narrative. They are evidence of the actual conspiracy in operation. Any criticism that the judge was directing the jury that the appellant was a party to the conspiracy is in our view misplaced. “viii) 17th December 2002: Mr Formby had a conversation with “Keith”. Keith asked about what would happen when the cocaine landed and Mr Formby said “we’ve got somebody in the warehouse that knows if its goin to be fucked with when it comes through”. Keith was not alleged to be a co-conspirator. This was purely dialogue by Mr Formby not in furtherance of the conspiracy. Mr Formby went on to have a conversation with someone called “Jay” and said that “They’ve got their own customs man at that side and at this side . . .”. Again this was pure narrative by Mr Formby to an unidentified person. The learned judge did not give the jury any direction about this evidence. ”[44]In this instance it is important to set out the “eavesdrop evidence” relating to the conversation with Keith as a whole:- “George in conversation with a male believed Keith. George believed on mobile phone. “How ya doin mate, you alright? Did you do any good with that, you have. Erm 2 tics go on is it a long number? I’ll give you a ring back in a couple of minutes. I’ll get a pen. Alright mater, cheers tara buddy”. Believed George makes further call “alright mate, gadgets got that number, alright, he’s gonna give it me in a minute so I can start chasing things up then, alright then mate speak to you in a bit. Tara mate, tara.” George says “Keith bring us a pen out will you mate” (voice heard to say ‘what) George ‘Pen and a piece of paper’ Sound of mobile ringing George “How ya mate, I’ve just been trying to ring you, put the phone down give me two minutes and I’ll ring you back” Sound of someone else getting into vehicle. George “Can you write” Male “No not really, why?” George “Write this number down for me when the kid gives me it.” George believed on phone. “Alright mate, fire away. Six, eight, one, one, three, two, eight, alright and that’s that number is it? That’s the number you asked him for that HWA thing? Alright brilliant mate, cheers. Catch you later buddy. Tara now”. Male (Keith) “HWA you been speaking to” George “HAWB number that is” Male (Keith) “Why does it start with six?” George “Cause it’s not a phone number, it’s a tracking number on a parcel on a grouping service. I’ve just put 15 kilos of cocaine in a fucking machine and stuck it on a groupage trailer.” George laughs Male says “What ya do that for?” George “So we’ll hopefully get it to land here” Male (Keith) “But won’t they send it when it lands here” George “No because we’ve got somebody in the warehouse that knows, it it’s going to be fucked with when it comes through”. Male (Keith) “Fuckin hell that aint too bad, nice one” George “I’ll tell you what mate, what makes it even better right, we’ve set up a company to do it with, with a company name, but we do two more, with no aggro they’ll give us air freight status, and if they give us air freight status we just drop it off, they put in on their own aeroplane. They’ve got their own customs man at that side and at this side and nobody gets (inaudible). Just comes through, without being looked at if I can get it all set up. Cheers mucker Jay.” George ‘Pen and a piece of paper’ Sound of mobile ringing George “Can you write” Male “No not really, why?” George “Write this number down for me when the kid gives me it.” Male (Keith) “HWA you been speaking to” George “HAWB number that is” Male (Keith) “Why does it start with six?” George laughs Male says “What ya do that for?” George “So we’ll hopefully get it to land here” Male (Keith) “But won’t they send it when it lands here” Male (Keith) “Fuckin hell that aint too bad, nice one”

Comment

[45]It is said that this was not a conversation between one conspirator and another. In the sense that Keith was not a defendant in the proceedings and charged as a conspirator that is true. But as Mr Cooke in his respondent’s skeleton makes clear it was never the Crown’s position that Keith was not a party to the conspiracy and indeed the nature of the conversation when set out in full would make it likely that he was. In any event it is not conclusive that the conversation would not be admissible that it should be between co-conspirators. Conspirators have to make arrangements for the carrying out of the conspiracy and from the conversation in full it can be seen that this was on any view a conspirator Mr Formby making arrangements for the carrying out of the conspiracy, such a conversation is clearly admissible against all conspirators. It is thus compelling evidence against Platten that he was a party to the conspiracy.[46]We are satisfied that the eavesdrop evidence relied on by the prosecution against Platten as showing he was a party to the conspiracy, subject to the one exception ( the 20th July conversation), was admissible. Furthermore the admissible evidence was compelling evidence against him and the exception was insignificant in the context of the whole.[47]As regards ground 2, we take the view that the admission of the convictions of the co-conspirators would do more than establish that there were the two conspiracies, which so far as Platten was concerned was not in issue. The admission of the convictions would not on their own suggest that Platten was a party to either conspiracy. It would only be the eavesdrop evidence and the declarations of Mr Formby which would have that effect, and since for the reasons given they were admissible, there is nothing in ground 2.[48]As we have said the admissible evidence against Platten was compelling and we have no doubt about the safety of his conviction and in those circumstances his appeal against conviction must be dismissed.

Sentence Appeals of Martin Formby and Stephen Shannon

[49]Mr Formby and Mr Shannon both renewed their applications for leave to appeal against sentence. Their challenges were in the case of Mr Formby to his fourteen years’ imprisonment on count 2 (the cocaine count) and so far as Mr Shannon was concerned his sentence to sixteen years’ imprisonment on count 2.[50]Mr Shannon was represented on his application by Mr Winter. It is therefore convenient to deal with his application first. Mr Winter’s submission was that eighteen years would have been a correct starting point and he accepted that very little credit could be given for his plea of guilty to count 2 which occurred at the half-way stage of the trial. His submission was that the main evidence against Mr Shannon was the eavesdrop material, and he suggested that the evidence would indicate that Mark Nixon was the main organiser of the conspiracy. Mark Nixon was sentenced to only thirteen years’ imprisonment on count 2, he also having been convicted after a trial. It was this disparity point on which Mr Winter placed reliance. His basic submission was that the sentence on Shannon should be no higher than that on Mark Nixon.[51]The judge, particularly following a trial, was in a strong position to assess the relative criminality of those taking part in the conspiracies. Furthermore it should be noted that Mr Shannon was alone in being charged with count 3, supplying a Class B drug, amphetamine, to which he was sentenced to five years’ imprisonment. In our view the single judge was right in saying that Mr Shannon’s total sentence covered three “very serious offences” and that there was no arguable point on disparity. We dismiss Mr Shannon’s application.[52]So far as Mr Formby is concerned, the offences to which he pleaded guilty were two very serious offences. Once again the starting point of eighteen years could not be criticised and the only question is whether sufficient credit was given for his plea of guilty. As the single judge pointed out a reduction of four years is “somewhat less than a twenty-five percent credit” but we, in agreement with the single judge, take the view that the sentence was not arguably manifestly excessive in the circumstances of the case. Mr Formby’s application for permission to appeal against sentence must also therefore be refused.

Cited in 2 later judgments