Owens & Anor, R. v [2006] EWCA Crim 2206

[2006] EWCA Crim 2206

Case No 2005 03348 D1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM LEEDS CROWN COURT

HIS HONOUR JUDGE DOBKIN

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 06/09/2006

Before

LORD JUSTICE RIX

MR JUSTICE JACK

SIR JOHN ALLIOTT

Between

(1) Mark James OwensAppellants/Defendants

(2) Patrick Gary OwensAppellant

Mr Andrew Lees & Mr Andrew Haslam (instructed by the Crown) for Prosecution

Mr Donal McGuire (instructed by MSB Solicitors) for 1st Appellant Defendant

Mr Christopher Stables for 2nd Appellant Defendant

Hearing Hearing dates : 13 & 14 July 2006

Judgment

[1]Two brothers, Patrick Gary Owens and Mark James Owens, among other co-accused, were convicted (by unanimous verdicts) on two counts of conspiracy connected with the laundering of red diesel fuel into the more valuable fuel known as “DERV” and the consequential laundering of the money proceeds of the primary conspiracy. This judgment concerns their appeals against conviction and sentence, together with their renewed applications for leave to appeal against conviction on further grounds.

[2]We shall call the brothers Gary and Mark respectively. Their convictions, on 6 April 2005, followed a substantial trial of many weeks before HHJ Dobkin and a jury in the Crown Court at Leeds. On 5 May 2005 they were sentenced by Judge Dobkin to a total of 6 years and 4 years imprisonment respectively, made up of 3½ and 2½ years consecutive in respect of the two conspiracies in the case of Gary, and 2½ and 1½ years consecutive in the case of Mark.

[3]The amended indictment charged the Owens brothers and their co-accused with conspiring between 1 June 2001 and 26 July 2002:(1) fraudulently to evade excise duty chargeable on hydrocarbon oils imposed by section 6 of the Hydrocarbon Duties Act 1979, in contravention of section 170(2) of the Customs and Excise Management Act 1979 (count 1, the fuel laundering); and

(2) to conceal, disguise, convert or transfer property, namely cheques, which either in whole or part, directly or indirectly, represented their proceeds of criminal conduct, for the purpose of either avoiding a criminal prosecution or the making or enforcement in their cases of a confiscation order, contrary to section 93C(1) of the Criminal Justice Act 1988 (count 2, the money laundering).

[4]Different hydrocarbon fuel oils bear different excise duty rates. DERV (diesel engine road vehicle fuel), which is sold from filling stations, incurs a substantially higher rate of duty than what are termed “rebated fuels”, such as “red diesel gas oils” and kerosene (heating fuel). The latter fuels bear less excise duty because of the restrictions which are placed on their use. Red diesel fuel, for example, is for non-road use such as in agricultural machinery and agricultural vehicles. At the time of the dates specified in the indictment the duty chargeable on DERV was 51.8 pence per litre, whereas it was only 3.13 pence per litre for red diesel fuel. The estimated loss of duty due to the fuel laundering conspiracy charged was some £1.4 million.

[5]DERV and red diesel are virtually identical in chemical composition, save that DERV is white/pale yellow to green in colour, whereas red diesel has a statutory marker, viz quinizarin, and a red dye additive to differentiate between the fuels. There is a prohibition on mixing the fuels, or selling red diesel as DERV, or attempting to remove the statutory markers (“laundering”).

The prosecution case

[6]The Owens brothers were from Northern Ireland. The prosecution case against them was in essence as follows. Gary was an organising force behind the conspiracies. He was responsible for finding the premises in which the red diesel was processed, and the premises for the accommodation of those who were engaged in the conspiracies. He was involved at every stage of both conspiracies. The red diesel was obtained from a Liverpool firm, Fitz Oil Limited, who delivered it to premises at Station Yard, Adwick (near Doncaster), from where the brothers also operated a legitimate haulage business. The fuel was bought in the name of fictitious buyers. From Station Yard the red diesel was transported by the conspirators to their laundering plant at Unit G, Swinton Bridge Industrial Estate (near Rotherham). Accommodation was leased at 68, Castleford Road, Normanton, and subsequently 12 Summerfield Drive, Normanton. The laundered fuel was then sold in the name of “Kindler Butler” or “Total Butler” or “Butler”. The Butler Group was a genuine firm in the business of fuel supply which operated from Driffield, and whose name was stolen by the conspirators for their purposes. A representative of the firm gave evidence that it was not involved in these sales.

[7]There were almost daily deliveries of the red diesel to Station Yard from at least October 2001 until 25 July 2002. The red diesel was discharged either directly into a food tanker or into a static tank. The food tanker would take the fuel to Unit G for laundering.

[8]Unit G was leased from 1 August 2001 by the co-accused Michael Hinchcliffe (who was charged on count 1 only, but acquitted). He told the landlord that he was acting for a client called “David Marks” who was shortly going into hospital for an operation: therefore a man called “Gerry” with a mobile telephone contact number would be responsible for the premises. The rent was always paid in cash, in due course by “Gerry”, who on one occasion arrived in a dark blue Mercedes, registration number R388 AJC. “David Marks” was a non-existent person, and “Gerry” was Gary Owens. The landlord’s records showed entries for “Gerry” and his mobile number (a number linked to Gary Owens), for “Keith (van driver)” and for “Mark (lorry driver”). “Keith” was the co-accused Stephen Keith Lester, who pleaded guilty to count 1. “Mark” was Mark Owens. There was also other evidence connecting Gary Owens with Unit G. Three security guards at the Swinton Bridge Industrial Estate, where Unit G was located, observed the coming and going of a number of tractor units, tankers and trailers.

[9]The fuel laundering process carried out at Unit G required the use of chemicals, such as sulphuric acid and caustic soda. These chemicals were purchased in the names of companies associated with a father and son, John and Adam Desmond. They pleaded guilty to both conspiracy counts. The chemicals were collected by the conspirators, never delivered by the suppliers to Unit G. The earliest invoice for the purchase of such chemicals was 19 September 2001. When the police raided Unit G on 25 July 2002, these chemicals were found there, as were red diesel and laundered fuels, and large quantities of residue sludge which was a product of the laundering. The sludge was contained in cube shaped plastic containers: similar cubes were discovered at Station Yard.

[10]A tenancy agreement for the living accommodation at 68 Castleford Road was signed on 7 September 2001 in the name of “Gerry Oliver”, another false identity of Gary Owens. The landlord said that the man whom he knew as Gerry Oliver always used a dark-coloured Mercedes. Those premises were used by workers from Ireland engaged in the fuel laundering conspiracy, as well as by the Owens brothers and other co-accused, until mid-July 2002. In mid-July 2002 “Gerry Oliver”, i.e. Gary Owens, rented living accommodation at 12 Summerfield Drive.

[11]The police raided 68 Castleford Road on 25 July 2002, and found Mark and other co-accused there (Lester, already mentioned, and Darren Myles, who was convicted on count 1).

[12]The laundered fuel was sold to James Booth (Bolton) Ltd (“Booths”) and Hargreaves Ltd (“Hargreaves”).

[13]Mr Ian Baxendale, the general manager of Booths, was contacted by telephone at the end of June 2001 by a man with an Irish accent who gave the name “Gerry” and asked if he could quote for the supply of DERV. He quoted a price which was cheaper than the competitive supplier. Mr Baxendale accepted the offer. Six deliveries were made. His firm received invoices from a company called “Kindler Butler Group”. The first delivery was made on 5 July 2001 and the sixth and last on 20 November 2001. “Gerry” instructed Mr Baxendale to make cheques payable to “Kindler”. After the delivery of the fifth supply, a number of Booths’ newest lorries broke down on the road, and the problem in each case was traced to blocked filters. On payment of the sixth and last supply Mr Baxendale deducted about £1700 from the invoiced amount, by arrangement with “Gerry”, to cover the cost of repairs to the lorries. After this, “Gerry” did not contact Booths again. Booths’ only other supplier of DERV had supplied the firm for twenty years without any similar problems.

[14]Between February and July 2002 sales to Hargreaves totalled some £800,000. The fuel was invoiced in the name of “Total Butler”. Payments were made by cheque in the name of “Butler”. The cheques were collected at the time of delivery by the driver. Some of the fuel delivered to Hargreaves was carried in a chrome-coloured tanker attached to a white-painted tractor unit, registration number M684 SWY. The tractor unit had been purchased on 23 March 2002 by Gary Owens, who gave an address in Northern Ireland. Four days later a tri-axle tanker was also purchased. Both purchases were made in cash. Contrary to haulage regulations, none of the tankers were liveried. These vehicles were used in connection with the carriage of the laundered fuel.

[15]John Desmond kept a diary which was recovered and relied on by the prosecution. This revealed that he also played a role in the renting of Unit G and in the sales of the laundered fuel. His diary for 24 June 2001 refers to “Gary/Mark…ref Meeting” and an entry for 24 July 2001 stated “Gary ref Premises etc”. John Desmond’s son, Adam, collected a number of cheques made out to Esh Winning (Durham). On some of these cheques Gary Owens’ fingerprints were found.

[16]The cheques received from Hargreaves were dealt with by co-accused Michael Howley and John Bark. They faced a separate charge of conspiring with the Owens and the Desmonds to launder money under count 3 of the indictment. The jury could not agree about Howley, and acquitted Bark. They passed the Hargreaves cheques through their company accounts, obtained cash for them, and returned the money, less a commission of 2.5%, to Gary Owens and Adam Desmond.

[17]Officers of HM Customs and Excise began surveillance at Station Yard on 24 May 2002, and subsequently extended their surveillance to Unit G and other locations. Journeys between relevant locations by a white tanker and a silver tanker were observed; as were Gary Owens’ Mercedes and Mark Owens’ silver VW Passat. Their cars were both seen at Unit G. On one occasion the Mercedes was seen to “mind” a green and white tanker. On other occasions, on 26 June, 3 July, and 4 July 2002, the VW car was observed to escort the silver tanker. Photographs were taken of two men in the VW on 3 July.

[18]On 25 July 2002 Mark Owens was arrested at 68 Castleford Road together with Lester, Myles and Rooney. The petrol tank of Mark’s VW car was tested, and found to contain laundered fuel. Keys to the white tractor unit were found in the VW. On the same day, a bottle of Lucozade was recovered from another tractor unit at Unit G: that bottle had Mark’s DNA on its neck.

[19]It was not until 11 September 2002 that Garry Owens was arrested at his home in Northern Ireland.

[20]There was evidence of the use of telephone numbers, in particular the number given to the landlord of Unit G as being that of “Gerry”. The number appeared in John Desmond’s diary and other documentation.

[21]At interview, Gary made “no comment” replies to all questions. Mark, however, said that he operated a legitimate haulage business with his brother from Station Yard; accepted knowing other alleged conspirators, but denied any knowledge or involvement in any conspiracy; acknowledged his ownership of the VW (although its keeper information had not been kept up to date since 1999); accepted that he might have been in the tractor unit from which the bottle of Lucozade had been recovered, but denied ever having been to Unit G, or any knowledge of the laundered fuel found in the VW; identified the two men photographed in the VW as looking like Gary and himself (“It looks like my brother and me”), but denied using it to escort the tanker; accepted staying at 68 Castleford Road on and off with his brother, but only for legitimate purposes; acknowledged as his own a black book which he had on him at the time of his arrest, but denied that everything in it was in his handwriting.

The Doran brothers and the 16th notice of additional evidence

[22]At a late stage in the preparations for trial, the prosecution served its 16th notice of additional evidence (the “16th NAE”). This material, a series of witness statements and documentary exhibits, arose out of separate investigations by HMCE. The additional evidence concerned two matters: the supply by Kindler Butler of laundered fuel to Booths; see above at paras 12/13); and the laundering of the proceeds of these supplies with the help of two brothers from Northern Ireland, Samuel (also Selwyn) and John (also Kenneth) Doran. In effect, this evidence sought to cover the earlier part of the conspiracies. It will be recalled that the earliest supply to Hargreaves was in February 2002, but that Unit G had been leased from 1 August 2001 and that daily supplies of red diesel from Fitz Oil had been made from at least October 2001.

[23]On this basis, and in the light of other material in the possession of the prosecution, - for example, the Desmond diary, the indictment had charged the defendant co-accused with conspiring between 1 June 2001 and 26 July 2002: but evidence relating to sales of laundered fuel and their proceeds prior to February 2002 had not come to hand.

[24]In fact, unknown to the prosecution in these proceedings, the Customs had, in other operations (“Operation Juicier” and “Operation Braid”), obtained the material in the 16th NAE as early as December 2001: but at that time and for nearly three years thereafter no connection had been made between that material and the separate operation (“Operation Escapes”) which had given rise to these proceedings. It was only in December 2004, when, in a final search for any further material which ought to be advanced or disclosed, Customs conducted an enquiry by way of cross-reference, that the additional material came to light. Operation Braid had concerned the activities of the Doran brothers, who operated a bureau de change in Armagh, close to the border with the Republic of Ireland, under the name of Kinler Ltd. The similarity between the names Kindler and Kinler may be noted.

[25]The trial had been due to take place in April 2004, but was adjourned as a result of the ill-health of Gary Owens. On 27 April 2004, the case was mentioned in court. There was discussion about the “drip-feeding” of evidence from the prosecution. The judge urged “very strongly” that there should be no further evidence after the end of May 2004. Counsel for the prosecution said that there were some “continuity statements” to come but he thought they would be served within that time frame. A new date for trial of 4 January 2005 was fixed. At a pre-trial review on 5 November 2004 the question of additional evidence was raised again. Prosecuting counsel said that there was the possibility of some further evidence in relation to “one very modest area” and sought a time limit for its service. The judge gave 21 days, in the following terms:

“…anything served following 21 days from today will not be admitted, full stop. I will stand by that one…Whatever is served after that will definitely not be admitted…”

[26]The 16th NAE was despatched under cover of a letter dated 22 December 2004 and received by the Owens’ solicitors after Christmas, and by counsel on 4 January 2005, the first day of trial. The material consisted of 18 pages of witness statements and about 100 pages of exhibits. Also provided were some 800 pages of interviews of the Dorans. The extension of the prosecution evidence into these new areas via Operations Jucier and Braid led in the course of the trial itself, in late February 2005, to the further disclosure of over 7,000 pages of documents by way of unused material.

[27]This late service of further evidence led, at the beginning and in the course of the trial, to five separate applications, in respect to which the lead was initially taken by counsel on behalf of the co-accused, Paul Rooney. The first was for an adjournment to get to grips with the further evidence. The judge granted that. The second, was an application to stay the prosecution for abuse of process, on the ground of inadequate disclosure. That application, which was made on behalf of Rooney but not the Owens brothers, was rejected. The judge gave an initial ruling on 18 January 2005, and provided his full reasons on 23 March 2005, towards the conclusion of the trial. The third application, made on 31 January 2005 on behalf of the Owens brothers, was to exclude the evidence in the 16th NAE in principle as being served in breach of the judge’s order of 5 November 2004. The judge rejected that application. The fourth application was then made by the prosecution, on 15 February 2005, formally to admit the evidence. It was submitted on behalf of the Owens brothers that the material should not be admitted inter alia because it was hearsay and/or that it should be excluded as being late and prejudicial. The judge gave his ruling on 16 February, with a few exceptions admitting the material, “not to prove the truth or the contents of the statements or the documents themselves” but because “they are dishonest, allegedly, and they are in my view real evidence”. The fifth application was then made on behalf of the Owens brothers for an adjournment to allow further time to assimilate the material. The judge granted an adjournment of a day and a half, which was less than had been requested.

[28]In the meantime, the trial proper, in the sense of the opening of the prosecution case before the jury, had only commenced on 4 February 2005. The disputed evidence was not opened to the jury until after its status had been settled. The admission of this material also led in due course to the amendment of count 2, which now included a reference to the Doran brothers as co-conspirators in respect of the money laundering.

[29]The evidence in question in the 16th NAE can be summarised as follows. There were a number of statements from Customs officers concerning the recovery of the documentary evidence, in particular the Kindler Butler invoices to Booths, the cheques made out to “Kindler” in payment for fuel supplied, the accounts of the Doran brothers’ firm, Kinler Ltd,through which Booths’ cheques were paid, certain other Kinler Ltd documents, and a yellow diary and a black/red notebook recovered from the Doran brothers’ homes. There was a statement from Mr Baxendale, the general manager of Booths, relating to Booths’ purchase of and payment for fuel. There was a statement from Bernard Saville, formerly of the Total Butler Group, to say that that firm had never had dealings with Booths and had never authorised use of its address and VAT registration number (found on the Kindler Butler invoices). Finally, there was a statement from David Higginson, manager of the fraud management unit of Northern Bank relating to the payment of the Booths’ cheques to Kindler Butler through Kinler Ltd’s account with that bank. Ultimately none of this material was disputed by the Owens brothers, their case simply being that, although they knew the Dorans, they had nothing whatsoever to do with Booths, Kindler Butler, or the payments through Kinler Ltd. Thus Messrs Baxendale, Saville and Higginson did not have to be called: their witness statements were read to the court.

[30]Among the Doran or Kinler Ltd documents were the following:(i) “Garry and Mark” appeared in the Doran diary with a telephone number which also appears in John Desmond’s diary under the name “Garry”;

(ii) the black/red notebook contained lists of figures on a page headed “G+M” (sc Gary and Mark) and “J&L Desmond” (sc John Desmond and his wife Lynnette);

(iii) on another page of that notebook, again under the heading “G&M”, carrying over a figure of “STG +55,321” from the page referred to at (ii) above, there appears the entry “(13,583.96) 21/11/01” which is identical to the amount for which Booths wrote a cheque payable to “Kindler”, which cheque was dated 20 November 2001 and was credited to the Kinler Ltd account on 23 November 2001;

(iv) a Booths cheque payable to “Kindler” dated 13 July 2001 for £13,684.13, paid through the Kinler Ltd account and stamped “KINLER” on its reverse also has written in manuscript on its reverse “G+M”.

[31]Among matters otherwise in evidence, not part of the 16th NAE, from which an association with the 16th NAE material could be demonstrated were the following:(i) Mark Owens’ “black book” contained a reference to “Kinler Ltd”, its address and telephone number and beneath that a reference to “Selwyn Doran” and his mobile telephone number, and also, on a separate page, a reference to “Selwyn Doran” and his mobile and land line telephone numbers;

(ii) the Total Butler invoices, made out to Hargreaves, were in the same format as the Kindler Butler invoices made out to Booths;

(iii) Hargreaves’ previous company name had been Youngs Haulage Ltd: Youngs’ cheques payable to “Kindler” dated in September and December 2001 also turned up in the Doran banking material;

(iv) Adam Desmond’s diary contained an entry dated 7 November 2001 which refers to “Kinler Fuels”, “Youngs – Hargreevs” (sic) and “Esh Winning” (where Hargreaves are based);

(v) the Dorans were arrested on 7 December 2001: it was only after their arrest that cheques started being dealt with by Howley; and the first cheque given to Howley was payable to “Kindler”.

Gary Owens’ evidence

[32]Gary gave evidence at trial in his defence, but Mark did not. Gary gave evidence that he and Mark ran a haulage business, based in Northern Ireland, but also operating in England where they had customers. They were equal partners, making joint decisions.

[33]He had met John Desmond in Northern Ireland, in April or May 2001. Desmond also ran a haulage business there. It was John Desmond who had mentioned Station Yard to him, where he, Gary, rented a small corner for both their needs. That was in June 2001. He used the place to service vehicles, but there were many other businesses operating there. He accounted for his fingerprints on the Hargreaves cheques as a result of fetching an envelope for a fellow user of the Yard, a Mr Mulvaney.

[34]It was also John Desmond who introduced him to 68 Castleford Road as somewhere to stay when he was in England and who had supplied the name of “Gerry Oliver” to the landlord. He was in fact introduced as “Gary”, not “Gerry”, a name he never used, and he left the name “Oliver” on the tenancy agreement because he did not want to cause trouble or delay. John Desmond got the name wrong, and he was too embarrassed to correct him. He had allowed Lester, who was a driver for Mulvaney, to sleep at the house because he had nowhere to stay. Through John, he also met Adam Desmond. He met others who stayed at Castleford Road.

[35]He had seen oil being moved about at Station Yard, but that had been in another part of it, not the part with which he was concerned, and he had nothing to do with it. Similarly, he had nothing to do with the “Butler” invoices to purchasers of DERV.

[36]As for the Doran brothers, he had met them in relation to money changing in Ireland. But he had never used them to launder money.

[37]The Mercedes car was his, but he could not drive. The VW was his brother’s, but he denied being one of the men in the photographs. He was not in either car on any day when those cars were observed allegedly escorting tanker movements.

Mark Owens

[38]Mark did not give evidence. Indeed, although he was separately represented at trial, his counsel kept the lowest of profiles, and did not participate in any cross-examination of either Crown or defence witnesses. In the final speech made on his behalf, his counsel emphasised the absence of key evidence to implicate him. For instance, he submitted that there was nothing to link Mark with the renting of Unit G or 68 Castleford Road, and nothing to link him with supplies from Fitz Oil or supplies to Hargreaves. Despite the surveillance, he was not seen at Unit G, not seen in the VW when it was said to be escorting tankers, not seen at 68 Castleford Road prior to 24 July 2002, and there was no evidence to link him with other members of the conspiracy, alleged or admitted. He was not connected by any telephone or telephone number to other conspirators. Counsel warned the jury against the dangers of guilt by association, particularly as the brother of Gary.

[39]As will appear below, one of Mark Owens’ renewed grounds of appeal relates to the circumstances in which that final speech was made, it being alleged that his trial counsel (not his counsel on this appeal) was unfit through drink to make an adequate or acceptable speech. Following that speech, fresh counsel was instructed, namely Mr Donal McGuire (who appears on Mark’s behalf on this appeal), to apply to the judge to discharge the jury on the ground that Mark had been deprived, through the unfitness of his counsel, of a fair trial.

[40]In this connection we mention certain consequences for Mark’s representation on this appeal. Mark’s counsel at trial were Mr Adrian Maxwell and Mr Stuart Mills. The final speech on his behalf was made by Mr Maxwell. Subsequently Mark dispensed with Mr Maxwell’s services, and, as we have said, instructed Mr McGuire to make an application to the judge to discharge the jury. After his conviction, Mark instructed both Mr Mills and Mr McGuire to advise him on an appeal, and to make an application for leave to appeal. Mr Mills addressed all matters other than the question of Mr Maxwell’s final speech, including sentence; Mr McGuire addressed solely the issue arising out of the final speech. More recently, however, a request was made to permit Mark’s representation on this appeal to be transferred in total to Mr McGuire, and the court permitted that to be done. It follows that in all respects other than the issue arising out of the final speech, Mr McGuire has been adopting the grounds and written advice of Mr Mills.

Co-accused

[41]We have already mentioned some of the principal co-accused. The Desmonds pleaded guilty (counts 1 and 2) in January 2005, after certain applications made to the judge but before the jury trial got under way. Lester also pleaded guilty (count 1). Myles was convicted (count 1). Hinchcliffe and Rooney (count 1) and Bark (count 3) were acquitted. The jury could not agree about Howley (count 3).

The appeals

[42]Gary Owens has been given leave to appeal on two linked grounds, relating to the admission of part of the material contained in the 16th NAE. These are his grounds 2 and 3. As perfected, we can gloss them as follows: (2) The judge was wrong, in the light of his order of 5 November 2004, to permit the Crown to adduce and rely upon the evidence contained within the 16th NAE. (3) The judge erred in regarding as admissible the evidence of the records and documents recovered from John (Kenneth) Doran and Samuel (Selwyn) Doran, and contained within the 16th NAE. In particular, the judge erred in ruling that the said documents were admissible as being ‘real evidence’. Alternatively, the judge would have been wrong to hold the said documents to have been admissible as acts and declarations in furtherance of the conspiracy.

[43]In addition, Gary renews his application for leave to appeal in respect of his ground 1, which relates to the knock-on effect on his own position of Mark’s complaint about his counsel’s final speech. He submits that the judge ought to have discharged the jury in his own case as well. However, he has abandoned his renewed application for leave to appeal in respect of his ground 4, which had complained of the judge’s failure to discharge the jury because of the alleged serious risk of prejudice to his case arising out of a broadcast on BBC Radio 4 on 15 March 2005, towards the end of trial, and consequential press coverage.

[44]Mark Owens has been given permission to appeal on a single ground, his ground 7, that the judge erred in rejecting a submission at half-time of no case to answer.

[45]Mark also renews his application for leave to appeal on a number of other grounds (but has abandoned still further grounds). Among the renewed grounds which he has argued at this hearing are his ground 1, which complains that the judge was wrong to admit the evidence contained in the 16th NAE; his ground 2, which complains that the judge failed to grant a sufficient adjournment following his admission of the 16th NAE material; his ground 6, which complains about the judge’s error in admitting evidence of the chemical sampling of the fuel in his VW motor-car in the absence of his being given the statutory notice of that sampling; his ground 8(b), which complains about the judge’s failure to discharge the jury following prejudicial publicity (the same complaint as Gary’s abandoned ground 4); and his ground 8(c), which complains about the judge’s failure to discharge the jury after his trial counsel’s allegedly incompetent final speech (the complaint upon which Gary’s renewed ground 1 is premised).

[46]Since Mark’s renewed grounds 1 and 2 track much of the same ground as Gary’s grounds 2 and 3 for which leave to appeal had been granted, we considered that Mark should also be granted leave to appeal in that respect. We also considered that he should be granted leave to appeal for his renewed ground 6 (the chemical sampling). For these purposes we extend his time for making his application for leave to appeal. Otherwise, we refuse him leave to appeal on his renewed grounds, for reasons which we will return to below.

[47]It follows that we also refuse Gary leave to appeal on his renewed ground 1, which depends on Mark’s ground 8(c) (the incompetent final speech ground).

[48]Since both Gary and Mark therefore have an appeal in relation to the admission of material contained in the 16th NAE, we will begin by dealing with that first (Gary’s grounds 2 and 3, Mark’s grounds 1 and 2).

The grounds relating to the 16th NAE: (1) Exclusion in principle

[49]On behalf of Gary, Mr Christopher Stables submitted first, that the judge had erred in principle in setting at nought his order of 5 November 2004 and admitting the material embraced by the 16th NAE, even though it was served late and in default of that order. He submitted that the language of the order was clear and unambiguous, and that a defendant ought to be able to rely on the word of the trial judge in such a matter. There was prejudice, moreover, in the introduction of a wholly new area of evidence, originating from Northern Ireland and the Dorans and their company Kinler Ltd. Complaint was also made about the embarrassment of having to deal with so many thousands of new documents of disclosure during the trial itself.

[50]On behalf of Mark, Mr McGuire adopted these submissions and also submitted that the Crown was at fault in as much as it ought to have been aware of the Kinler evidence at a much earlier stage, since such evidence had figured in other “red diesel frauds” which had an Irish connection, and in particular in “Operation Joyless”. That operation and these proceedings had shared the same Customs case lawyer, a Mrs Christine McGregor, as well as other Customs officers. The judge was improperly misled into accepting from the Crown that the Kinler link was not appreciated until late in 2004.

[51]In our judgment, however, this attack on the judge’s decision, in the exercise of his discretion, not to exclude the material contained in the 16th NAE in limine and as a matter of principle, fails. First, the material was properly within the indictment, which had always alleged that the two conspiracies had gone back to June 2001 and predated the associations specifically relied on in relation to supplies to Hargreaves and the assistance of Howley and Bark. Although the Doran/Kinler connection was in a sense novel, nevertheless, upon further inquiry from the court, Mr Stables frankly accepted that the actual material within the 16th NAE was mastered without prejudice, and that even the much more voluminous unused material disclosure was adequately assimilated, ultimately without prejudice, and some aspects of it were deployed in cross-examination. In any event, the Owens’ case as to all this material was simply that it had nothing to do with them, and Mark Owens, of course, deployed no cross-examination and gave no evidence himself.

[52]The judge was entitled, having satisfied himself that there was ultimately no unfairness and no undue prejudice in the service of this material, to conclude that, his own order of 5 November 2004 notwithstanding, it would be in the interests of justice to permit the material encompassed by the 16th NAE to go forward for consideration as to its admissibility or exclusion on its own merits. We accept the Crown’s submission, as the judge did, that in any event the November order was not intended to provide a definitive bar to any new areas of enquiry that might come to light. We also accept, as the judge again did, the Crown’s explanation that, despite previous attempts to find material that went back before February 2002, it was only in December 2004 that the material in the 16th NAE emerged as a result of cross-referencing the present proceedings with other Customs’ operations. At the specific request of the Crown’s counsel, Mr Mushtaq Khokhar, Customs’ officers went to Northern Ireland in December 2004 to investigate such cross-referencing and succeeded in recovering the material in question. It was served within a few days of its recovery. The so-called “drip-feeding” of evidence and disclosure had been made the subject-matter of a separate abuse of process application at the outset of the trial, albeit only on the part of Rooney, and the judge had in that context investigated the role of Customs and of Mrs McGregor in particular and had acquitted them of anything in the way of misleading the court. The judge heard evidence in a voir dire and was completely satisfied that the bad faith that was alleged was non-existent.

[53]We therefore reject the submission that the material in the 16th NAE ought to have been excluded as a matter of principle.

[54]Mr Stables’ and Mr McGuire’s next submissions were that the judge had erred in failing to exclude the relevant material as hearsay. Exclusion on the ground of prejudice and/or lateness was revisited, but without any new argument. The essential submission was that the judge had erred in admitting evidence contained in the 16th NAE on the basis that it was “real evidence”, when in fact its admission had to be justified, if at all, as evidence which either was not hearsay or else came within one of the hearsay exceptions. The Crown did not seek, however, to support the admission of the relevant evidence on any other ground than the one on which the judge admitted it, namely as real evidence.

[55]But what was the relevant evidence in question? Gary’s ground of appeal was limited to “the records and documents recovered from [the Dorans]” (see ground 3 cited above at para 42). Mark’s ground (his ground 1) was limited to an objection to admission of the 16th NAE material in principle (i.e. Gary’s ground 2), which we have already dealt with above. He therefore has no ground of appeal equivalent to Gary’s ground 3. Despite that fact, Mr McGuire’s skeleton argument, prepared very shortly before the hearing of this appeal, went beyond Mark’s grounds of appeal in also submitting that the judge erred in admitting “the Kinler evidence” (not further defined) as real evidence. And at the hearing both he, and Mr Stables on behalf of Gary, made oral submissions of still further width as to the evidence objected to. We are prepared to grant Mark leave to appeal to enable him to parallel the ground, ground 3, on which Gary already has leave, and that is limited to the admission of the “records and documents recovered from [the Dorans]”.

[56]It seems to us that that in any event was the real bone of contention before the judge. There was plainly no problem about the admissibility of the evidence of Mr Baxendale about the supplies of fuel by “Gerry” to Booths or the invoices and cheques which Booths respectively received from Kindler Butler and made out to Kindler. None of that evidence was hearsay. Similarly, there was no problem about the admissibility of the banking evidence from Mr Higginson of the Northern Bank, who produced the accounts of Kinler Ltd and was able to show that Booths’ cheques were paid through the Kinler Ltd account. It was common ground that Kinler Ltd was the Dorans’ company. Nor was any of this evidence disputed. On the contrary, Gary Owen’s counsel at trial cross-examined on and brought into evidence further material from unused material, to illustrate the contention that the Dorans were using their company, Kinler Ltd, to “deliver” fuel to many third parties. In this connection Mr McGuire acknowledged that Kinler Ltd was being used by several fuel-laundering gangs in Northern Ireland to money-launder their criminal proceeds. Nevertheless, the Dorans also ran a legitimate business as operators of a bureau de change, with thousands of legitimate customers. The issue was whether the Owens had any illegitimate association with the Dorans/Kinler Ltd as fellow-conspirators for the purpose of laundering money. That depended on the material recovered from the Dorans themselves, or from Kinler Ltd, which the Crown relied on to prove just such an association: we have illustrated this at paragraphs 30 and 31 above. It was in respect of this, limited, aspect of the 16th NAE material that the judge was, we think, asked to rule.

[57]We say this despite the fact that the judge appears also to have regarded the Kindler Butler invoices as being themselves “real evidence”. So they might have been, in one sense, in as much as they were relied on as originating from the fuel laundering conspiracy alleged against the Owens among others: but, as stated above, we think it indubitable that they were in any event admissible as proved by Mr Baxendale for the purposes of his witness statement, which does not appear to have been challenged in itself. In any event, we repeat, the ground of appeal before us does not encompass the Kindler Butler invoices: they were not recovered from the Dorans, but from Booths.

[58]We asked the Owens’ counsel to point to any disputed document which the judge referred to in his summing up as a “best” example of a document which the Crown relied on for the truth of what such a document said rather than as real evidence. They were unable to direct our attention to a single such example from the summing up, “best” or otherwise.

[59]What is “real evidence”? The matter is discussed in Archbold, 2006, at chapter 9 and in particular at paragraphs 9-5 to 9-8. We were referred in this connection by Mr Andrew Lees, counsel for the Crown on this appeal, to R v. Lydon

(1987) 85 Cr App R 221

, cited at para 9-6, where a gun and two scraps of paper (saying “Sean rules”) were found along the road verge passed by a car with which the prosecution sought to link the defendant (Sean Lydon). The documents and the gun could themselves be linked forensically. They were admissible evidence to corroborate a disputed identification connecting the defendant to the car and thus to a robbery, not to prove that Sean did indeed rule. The court, in a judgment given by

Lord Justice Woolf, there adopted the following explanations (at 224):

“Sometimes it is possible to avoid the hearsay rule by showing that a statement made in a document is being used as an original and independent fact for instance, that a person who made use of the document had certain information in his possession at a relevant time – and not as evidence of the facts stated. It is always important therefore, whenever an objection is taken on hearsay grounds, to ascertain for precisely what purpose the evidence is being tendered. It may be hearsay for one purpose and not, and therefore admissible, for another,” per Cox J in R v. Romeo (1982) 30 SASR 243 at 262. “In these cases it seems that the writing when properly admissible at all, is relevant not as an assertion of the state of facts but as itself a fact which affords circumstantial evidence upon the basis of which the jury may draw an inference from any other relevant circumstance of the case”

Cross on Evidence, 6th ed, at 464.

[60]Archbold at para 9-7 goes on to state that to use a document in this way as real evidence, a sufficient foundation must be laid to link a defendant with the document; but for that purpose it might be sufficient to show that he was connected with the document in some way other than by being its author, or by being in possession or control of it, or by knowing of it. However, the Owens did not challenge this requirement as the basis of their ground of appeal. In truth, the Crown was able to lay a trail, or, it might be said, a web of connection between the Owens and the Dorans’ documents. Thus the Dorans, through Kinler Ltd, banked the Booths’ cheques supplied to “Gerry” in payment of Kindler Butler invoices which shared an identical format with the Total Butler invoices which evidenced the supply of fuel from Unit G at a later date to Hargreaves. Moreover, the amount of a Booths’ cheque (for £13,583.96) figures in the Dorans’ black/red notebook under the heading “G&M” and in connection with “J&L Desmond”. There are cross-references to the Dorans and Kinler Ltd in Mark’s diary, as there are references to Gary and Mark in the Doran documents. There are many other associations as well which it is unnecessary to illustrate.

[61]Mr Stables submitted that the reference to the Booths’ cheque for £13,583.96 in the black/red notebook under the heading “G&M” was itself an example of a document used to prove the truth of an assertion that the Dorans had received that cheque for the account of the Owens, in contravention of the hearsay rule. We do not, however, agree. It was proved, if the jury was satisfied by the evidence, by means that were in no way hearsay that Kinler Ltd (i.e. the Dorans’ business) had banked the Booths’ cheque. It was similarly proved that that cheque had derived from the supply to Booths of fuel by “Gerry” under a “Kindler Butler” sale. If in these circumstances there was also an association between the handling of the proceeds of that cheque and “G&M”, then that was an association, if the jury was satisfied of it, that the jury could take into account as part of the circumstantial evidence as a whole.

[62]In our judgment, although it might in theory have been possible to use the disputed material for the truth of what it said, rather than in the more limited way permitted by the judge, as real evidence, we are satisfied that the Crown was faithful to the judge’s ruling, and the fact that counsel were unable to point to a single instance in the summing up where the material had been misused is, we think, ample confirmation of our conclusion. No complaint is made as to the terms in which the judge summed up the evidence relating to the 16th NAE material as a whole or the Doran/Kinler Ltd aspects of that material in particular (other than, as will appear below, an entirely different complaint made by Mark Owens alone to the effect that the judge failed to sum up separately in relation to him in respect of count 2 as a whole).

[63]As for the repetition under this heading of the complaint that the service of the 16th NAE was late and/or unduly prejudicial, and that the material should for those reasons be in any event excluded, on its merits, under section 78, we consider that this submission requires no further treatment. The judge had rejected that submission, and we have given our reasons above for concluding that the exercise of his discretion cannot be faulted.

[64]Similarly, we dismiss Mark’s ground 2, under which he complains that the judge erred in refusing to grant a sufficient adjournment to consider the material contained in, or disclosed as a result of, the 16th NAE. This was the renewed application to adjourn following the ruling on 16 February 2005 concerning the admission of the 16th NAE material. Gary does not join in this complaint. This was essentially a case management decision for the judge. The basic material (and the Dorans’ interviews) had been with Mark’s counsel since 4 January 2005. Although many thousands of pages of unused material was yet to be disclosed, there is no evidence at all that this caused any unfairness to Mark’s defence. As it was, he had adopted the defence of playing no active part in the jury trial, and continued to maintain that strategy until final speeches.

[65]We therefore dismiss the Owens’ appeal to the extent that it is founded on this challenge to the admission of the material in the 16th NAE. It follows that Gary Owens’ appeal as a whole will be dismissed, for we have already indicated above that he has failed to obtain leave to appeal on his ground 1, itself premised on Mark’s renewed ground in relation to the application to discharge the jury on the ground of the incompetence of the final speech given by Mark’s counsel. We will give our reasons in relation to that below, but first will turn to the ground on which Mark has obtained leave to appeal, his ground 7, the complaint that the judge should have acceded to an application of no case to answer.

Mark’s appeal: no case to answer (ground 7)

[66]This was the only ground on which Mark obtained leave to appeal from the single judge. The essence of the submission was that this was a classic example of the second limb of the R v. Galbraith

(1981) 73 Cr App R 124

ruling, viz “[W]here there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence”. Mr McGuire submitted that the evidence was tenuous and inherently weak in the absence of a single overt act or declaration on the part of Mark. The case against him was, at its core, that he was the brother of Gary and therefore must have known what was going on. The Crown in opening often referred to the “Owens” or the “Owens brothers”. This was mere guilt by association. It could not be remedied by the judge’s warnings to the jury not to convict Mark just because he was the brother of Gary. The position was even more extreme where count 2 was concerned, for there was no evidence at all of him receiving the proceeds of any crime in any form at all, or of any link or association with any of the alleged money launderers. This latter matter was illustrated (at full time) by the fact that in his summing up the judge said nothing whatsoever about count 2 in dealing specifically with Mark. This was despite the fact that in rejecting the submission of no case to answer the judge had said that the jury “will have to be directed strongly and clearly as to the nature of the evidence in relation to each Defendant who is in the dock at the end of this trial”. The judge’s failure to carry out his stated intention in this respect in relation to count 2 was all the more important given the paucity of that evidence and the limited basis on which the evidence arising from the Doran/Kinler Ltd documents was admitted (see above). Thus evidence of any participation in a conspiracy to launder proceeds of fuel laundering was therefore tenuous in the extreme.

[67]In his ruling on the half time submission the judge pointed out first, that the existence of the conspiracies, whether or not they involved Mark, was in any event established by the guilty pleas of the Desmonds. As for evidence linking Mark with those conspiracies, the judge made reference to his presence at 68 Castleford Road, and the appearance of his name in the diary of John Desmond, and the appearance of the names of other alleged (and confessed) conspirators in Mark’s black book. He thought that those two documents alone provided sufficient evidence to require the application to be rejected.

[68]Thus the judge did not expressly refer in his ruling to other, albeit disputed, pieces of evidence implicating Mark, such as the use of Mark’s VW to escort the carriage of fuel (with Mark’s disputed photographed presence in it on one occasion, as to which Mark had said in interview that the photographs looked like him and Gary), or the finding of Mark’s DNA upon the Lucozade bottle in the tractor at Unit G, or of the further finding of the keys for the white tractor unit in the VW, or of the presence of laundered fuel in the VW.

[69]In our judgment, the judge was correct to reject Mark’s submission of no case to answer. There was certainly evidence to go to the jury from which they would be entitled to infer Mark’s participation in both conspiracies. It would be a matter for the jury to decide whether they were sure of that participation, having been warned to distinguish between evidence against each of the two brothers individually and of the danger of finding guilt by mere association. As so often in cases of conspiracy, the evidence was circumstantial rather than direct. Even so, the evidence was certainly not tenuous or inherently weak. In the light of that evidence of close links, not only documentary (and that to some extent in his own black address book), but also physical, forensic, geographic, and through the use of his car, the judge was certainly entitled to leave the issue to the jury. Those links were such, all the more so given the conduct of a legitimate business in close association with his brother, as to entitle the jury to conclude, if they were sure, that he was involved with his brother in fuel laundering as well as with legitimate haulage: and in any event to require him at least to answer the case against him.

[70]In this respect, in any event at the half way stage, there was no difference between count 1 or count 2. There is nothing in the transcript of submissions to the judge in relation to this application to the effect that a critical distinction was to be made between the two counts; and that approach is reflected in the judge’s ruling itself. There is a large measure of common sense in that, for, if there was a case in relation to a conspiracy to launder fuel, it stands to reason that there would also be a case in relation to a conspiracy to launder the proceeds of the first conspiracy: a fortiori where the Desmonds had pleaded guilty to the second conspiracy as well and where there were links between Mark and both the Desmonds and the Dorans. The fact is that the cheques paid by Booths and Hargreaves for the laundered fuel were not banked by the fuel launderers but by third parties.

[71]We would therefore reject Mark’s appeal on this ground as well. The question remains whether any of his renewed grounds come to his assistance.

Mark’s renewed grounds

[72]The renewed grounds we have to consider are grounds 6, grounds 8(b) and (c) and grounds 9(f) and (g). All the rest have been abandoned.

Mark’s renewed ground 6: the laundered fuel in the VW

[73]This ground is technical, but we think it has validity. We grant Mark leave to appeal on this ground, and the ultimate question is whether it affects the safety of his convictions.

[74]The technical point arises out of the chemical sampling of the fuel in Mark’s VW car following his arrest on 25 July 2002. No formal notice was given to him at that time of the sampling. That was in contravention of schedule 5 of the Hydrocarbon Oil Duties Act 1979. Schedule 5, headed “Sampling”, provides as follows: “1. The person taking a sample –(a) if he takes it from a motor vehicle, shall if practicable do so in the presence of a person appearing to be the owner or person for the time being in charge of the vehicle;… 2.(1) The result of an analysis of a sample shall not be admissible – (a) in criminal proceedings under the Customs and Excise Acts 1979...

(b) unless the analysis was made by an authorised analyst and the requirements of paragraph 1 above (where applicable) and of the following provisions of this paragraph have been complied with. (2) The person taking the sample must at the time have divided it into three parts (including the part to be analysed), marked and sealed or fastened up each part, and – (a) delivered one part to the person in whose presence the sample was taken in accordance with paragraph 1 above, if he requires it; and (b) retained one part for future comparison. (3) Where it was not practicable to comply with the relevant requirements of paragraph 1 above, the person taking the sample must have served notice on the owner or person in charge of the vehicle…informing him that the sample has been taken and that one part of it is available for delivery to him, if he requires it, at such time and place as may be specified in the notice.” (a) if he takes it from a motor vehicle, shall if practicable do so in the presence of a person appearing to be the owner or person for the time being in charge of the vehicle;… (a) in criminal proceedings under the Customs and Excise Acts 1979... (b) unless the analysis was made by an authorised analyst and the requirements of paragraph 1 above (where applicable) and of the following provisions of this paragraph have been complied with. (a) delivered one part to the person in whose presence the sample was taken in accordance with paragraph 1 above, if he requires it; and (b) retained one part for future comparison.

[75]The proceedings in respect of the fuel laundering conspiracy were brought under section 170 of the Customs and Excise Act 1979.

[76]The effect is therefore, that, without compliance with the requirements provided for in paragraphs 2(2) and (3), “[t]he result of an analysis of a sample shall not be admissible” – paragraph 2(1). The stated requirements were not met. The sampling was not done in the presence of Mark Owen. He was not provided with a part of the sample. In the circumstances a notice under para 2(3) was required. The statute goes further than requiring such a notice: without further provision, a breach of that requirement may possibly not by itself have prevented reliance on the sampling and analysis, depending on the seriousness of the breach in the circumstances. However, the statute makes clear that in the apposite circumstances the giving of the required notice is a condition precedent to the admissibility of the result of the analysis (“shall not be admissible”). In our judgment that condition precedent applies in the present situation.

[77]On behalf of the Crown, Mr Lees submitted that the statute did not have that effect in circumstances where at the time of sampling Mark Owen was not the registered keeper of the VW. It will be recalled that upon its acquisition by Mark prior to July 2002 he had not re-registered the car in his name, as he ought to have done. Whatever might have been the position if it had not been possible to establish for some time who was “the owner or person in charge of the vehicle”, the position was that within a matter of hours, during his interview, Mark had admitted to ownership of the car. In those circumstances it seems to us that the Crown cannot complain that they were rendered unable to give the requisite notice by any default by Mark in the registration of his car. Para 2(3) itself contemplates that the requisite notice will be served after the sampling, and no express time limit is there laid down. It must be contemplated that the Customs may take a little time, in cases where “the person appearing to him [the taker of the sample] to be the owner or person for the time being in charge of the car” is not present at the time of the sampling, to establish who that person is.

[78]The judge in his ruling on Mark’s application to exclude any evidence regarding the sampling, given on 16 February 2005, accepted the Crown’s submissions and said that the statutory provisions were not breached in the absence of the re-registration of the VW. It seems to us, however, that that conclusion was in error. In any event Schedule 5 does not look to registration but to the owner or person in charge of the vehicle. That that was Mark, was established within a very short while of his arrest and the sampling in question.

[79]It follows that the result of the analysis was inadmissible, but was wrongly admitted. Does that make Mark’s convictions unsafe? Mr McGuire submitted that it does: the evidence of laundered fuel being present in Mark’s VW may have had a severely prejudicial effect in a case where there was no other unequivocal evidence putting Mark directly in the frame as a co-conspirator. The matter was mentioned in the summing-up, where the judge also reminded the jury of Mark’s response in interview when challenged with the result of the sample analysis and asked if he could account for it:

“No, somebody else must have put it in there.”

[80]We will revert to this question after completing our review of the remaining renewed grounds.

[81]On 15 March 2005, towards the end of the trial, and during the cross-examination of Gary Owens, a radio programme took place, as part of BBC Radio 4’s “File on Four” series, concerning the IRA’s role in fuel and money laundering in the border areas of Northern Ireland. Trailers for it had caused sufficient concern for the Crown to raise the matter with the judge, and he made a contempt of court order at about noon that day prohibiting publication of any material which related to the case. The programme was broadcast at 8pm that night. It was advertised as being repeated at 8pm on Sunday, 20 March. The programme could also be visited on the internet.

[82]The programme referred inter alia to red diesel frauds being used to fund the IRA; to links forged between the IRA and British criminal gangs; and to two brothers who laundered the proceeds of the fuel laundering through a small bureau de change on the Irish border. The prosecution explained that this was not in fact a reference to the Dorans, but the next morning in court defence legal representatives and the judge himself initially thought that it was. That morning also brought articles published nationally in the Daily Mail and locally in the Yorkshire Post repeating the broadcast’s allegations.

[83]The judge was asked by defence counsel to discharge the jury as a result, on the ground that such publicity made a fair trial impossible. The essence of the defence concern was the suggestion that such frauds went to fund the IRA: and that this suggestion would prejudice the defendants, such as the Owen brothers, who were Irish themselves. The prosecution opposed the application for the discharge of the jury.

[84]The judge refused the application, and thought any danger of such prejudice could be put to rest by his giving a direction to the jury then and there. He invited comments from counsel as to its drafting. The prosecution opposed the giving of such a direction, as did the defence, on the ground that it might only serve to highlight the matter and perhaps put the jury on inquiry, for instance leading them to visit the broadcast on the internet. However, the judge did go ahead with his direction, incorporating suggestions made to him by counsel. We have seen a draft with manuscript amendments, which possibly reflects the final direction given to the jury. Among the matters dealt with by the judge was the statement that the brother money launderers mentioned were not the Dorans and that nothing in the broadcast had anything to do with any location or person involved in the case. He said that his “firm instructions are to ignore all media publicity. Nothing and nobody referred to or mentioned in it had any connection with the case which we are trying…in the meantime, concentrate, as you have been doing thus far, on what you hear in this case, and only that.”

[85]Mr McGuire submits that the judge’s initial concern about the programme was proper, but his direction served only to highlight the matter and was folly. The judge should therefore have acceded to the application to discharge the jury and order a retrial. Although that retrial might itself be subject to the risk of adverse publicity, the prejudice experienced during the trial might never materialise again, and there were traditional means before the beginning of a trial of guarding against jurors who might be susceptible to past publicity: such means were of no use when the adverse publicity occurred in the middle of trial.

[86]We have considered this submission carefully. We consider that the publicity was eminently a matter for the judge’s exercise of his discretion during trial. Although one aspect of the case involved money laundering through the Dorans, the centre of the conspiracies alleged was in England. The publicity did not in fact allude to matters in issue in the trial. The judge was entitled to think that he should not let the moment pass without an immediate warning to the jury, and might well have been subject to criticism if he had. Gary Owens has abandoned his renewed ground of appeal to like effect. In all these circumstances we cannot see any possibility of this court seeking to second-guess the judge who was presiding over the trial. We refuse leave in respect of this ground.

[87]Mr Maxwell made his final speech on Mark’s behalf on 23 March 2005. He had prepared a speaking note of that speech in advance, and had discussed and agreed it with his client and his solicitor, Mr Arthur Blackhurst, an associate solicitor. Mr Maxwell set himself to speak for an hour, and exceeded that by only a small margin. In essence he delivered the speech he set out to give: he made all the points which he had identified in his note. His speech sought effectively to underline the absence of direct evidence against Mark, and to dissipate any effect of the circumstantial evidence relied on by the Crown.

[88]In planning that speech, Mr Maxwell recognised and reflected on a strategic difficulty: so far neither he, nor his junior, Mr Mills, had played any part in the trial in front of the jury. He therefore determined to begin his speech by catching the attention of the jury by an unusual and humorous opening. His speaking note began with a heading “Introduction” under which he had written “The team and I”. As developed before the jury, this passage consisted in his introducing himself, his instructing solicitors and his junior, Mr Mills, to the jury in a fashion that can be described as deliberately humorous. The humour was perhaps a matter of taste and perception. At any rate it was planned. After a few minutes in this vein, he delivered the speech as mapped out in his note.

[89]Mr McGuire was not present in court that day: he had not yet been instructed. However, Mark’s instructing solicitor, Mr Sean Sexton, a partner of his firm and senior to Mr Blackhurst, made an attendance note that evening, and subsequently made a witness statement for this appeal, in which he described his reaction to the speech. In his attendance note he wrote:

“It was clear from the outset that AM [Mr Maxwell] intended to be light-hearted initially…SJS [Mr Sexton] first became concerned as to AM’s behaviour when he introduced the other members of the defence team to the jury…He introduced each member of the defence team with comments which were clearly intended to be amusing but all of which fell flat…The jury seemed bemused at the introduction and seemed more embarrassed than amused by AM’s attempts at lightheartedness. AM proceeded with his closing speech which substantially followed the draft although AM did ad lib on a number of occasions [and] repeated himself…SJS became increasingly concerned when it became apparent that AM was sweating excessively and was drinking a lot of water. He appeared to be suffering the effects of a hangover…”

[90]That final sentence became in due course the essential core of the complaint made under this ground of appeal. However, as Mr Sexton’s note explained, there was no initial complaint by Mark Owens (“Nobody commented at this point on AM’s demeanour or the efficacy of his closing speech”). When, following the close of that day in court, Mr Sexton, Mark, and his brother Gary, retired to a pub for a drink, Mark “had still not raised any concern with SJS as to the content or delivery of AM’s closing speech”. It was only after Mr Sexton had himself raised with Mark the thought that he was disappointed with the closing speech that, as Mr Sexton wrote, Mark agreed, as did Gary after his return from buying the drinks. Mr Sexton continued:

“At some point in the conversation, the client commented that AM had clearly been drinking the night before.”

[91]The upshot was that the services of Mr Maxwell (but not those of Mr Mills) were dispensed with and Mr McGuire was instructed on the next day or 25 March 2005 to make an application to the judge to discharge the jury on the ground that Mr Maxwell had either been intoxicated or had given the impression that he was intoxicated. That application was made on 30 March 2005. This was prior to the judge’s summing up, which began later that day.

[92]The application proper was preceded by Mr McGuire informing the judge of the purpose of his instructions and requesting of him an opportunity to listen to the tape of Mr Maxwell’s final speech. This was granted. Mr McGuire was subsequently to say, in his advice on appeal, that he found the style and content of its introductory passage “shambolic” and “bizarre”. However, he also said that following this passage, Mr Maxwell “went on to make the vast majority of the points that were necessary to be made to present Mr Owens’ case to the jury”.

[93]In his application in open court, Mr McGuire submitted that Mr Maxwell was not in a fit state to make his speech: through a combination of drink and lack of rest, he was not sufficiently mentally alert to address the jury. The importance of that speech was all the greater in a case where the defence strategy (of which no complaint was made) had been to take no active part in the trial up to that time. There was a serious risk that the jury may have formed the impression that he was drunk, and may have “switched off” as a result. The right to a fair trial had therefore been undermined.

[94]The judge rejected Mr McGuire’s application. He said that listening to the speech, as he had done a week before, it had never occurred to him that there was anything of the nature complained of. He said that all counsel have their different styles, but as to content, he was satisfied that nothing had been missed out which should have been included, nor was any point made which was diametrically opposed to what was right. The judge concluded:

“Having listened to the speech, having seen the speech being delivered, was anything submitted to the jury which was wrong on the basis of fact or on the basis of law which would, if corrected, prejudice them against the defendant, and making it that he should not receive a fair trial from here on in? And the answer I have come to in relation to that question, is “No”

. The points that were made should have been made. I could not think of any others which could be made, on the basis of any evidence that I had heard. And I am quite convinced that the jury would not have concluded other than that the defendant was represented by a counsel with an unusual style of speech; with some humour, but somebody who was capable of, and who did make all the points which could be made on his behalf…”

[95]In renewing his application in respect of this ground, Mr McGuire has repeated the submissions he made before the judge. He also asked this court to receive evidence concerning the circumstances of the final speech. That evidence included Mr Sexton’s attendance note, referred to above, a later witness statement which covered the same ground, and also a witness statement from Mr Blackhurst, the assistant solicitor. That referred in anodyne terms to a dinner on the evening before the final speech at which the defence legal teams had met at a restaurant. As for the following morning, he said that he did not smell alcohol on Mr Maxwell’s breath (Mr Sexton had said that he did), but that he did clearly appear to be hung over. He said nothing about the final speech.

[96]A form W notice of application for a witness statement from Mr Mills was served, explaining that he had refused to provide a witness statement on the advice of the Bar Council. At that time, and until shortly before the hearing, Mr Mills was instructed to present Mark’s appeal and his renewed applications on all grounds other than the one with which we are now concerned.

[97]Mark Owens has waived privilege limited to his complaint under this ground of appeal. Responses from Mr Maxwell make the following points. He denies any incompetence or unfitness through drink, or being hung over. He recognised the need for a “vigorous, emphatic and memorable closing speech”, including the need for humour. He delivered the speech exactly as he had intended. The speech was approved by Mark beforehand. As agreed, he had not implicated Mark’s brother.

[98]During the hearing, the court asked Mr McGuire whether his solicitors had approached Mr Mills for a statement since he had ceased to have any responsibility for Mark’s appeal. We were told that they had not. The court therefore requested a statement from Mr Mills, who was in Liverpool, but standing by in case he was needed on the following morning. Mr Mills provided a statement within a few hours of the request being made. In it he made the point that he had not received any formal waiver of privilege from Mark but that he understood that Mark consented to his providing an account. He was unable to say how much Mr Maxwell had drunk on the previous night but commented, in our view rightly, that Mark’s only complaint can relate to Mr Maxwell’s conduct during the course of the trial. As for that, he referred to the tape recording of the final speech. As for Mr Maxwell’s style, he said that was a personal matter. He referred to the fact that Mark had specifically requested Mr Maxwell to represent him, and that Mr Maxwell took what was in his experience the very unusual step of agreeing beforehand the contents of his proposed speech in writing with his client.

[99]Each member of the court has taken the opportunity of reading a transcript of Mr Maxwell’s speech and of listening to it on tape. In our judgment, the speech is delivered in a measured way, with clarity and appropriate emphasis. There is no sign whatsoever of any difficulty with language or presentation. There is no sign whatsoever of any incapacity or unfitness of speech either by reason of drink or otherwise. Whereas some of the initial humour was broad, and the judge described it as “unusual”, we do not consider that such humour, confined as it essentially was to the introductory passage, can possibly or arguably enter into a question of competence or the fairness of the trial. That remains the case even if on a personal view some of the humour was ill-judged. The judge, who after all not only heard but also saw the speech delivered, was in the best possible position, from where he presided over the trial, to assess the speech’s merits or faults, and he stated, within the week, his view that it had never occurred to him that Mr McGuire’s submissions to him were justified, that “there was anything of the nature complained of so far as the speaker was concerned”. We lack the immediacy of the judge’s view, but in other respects we are as well situated as he, and have the advantage of having considered the transcript and tape with Mr McGuire’s submissions and strictures in mind.

[100]The final speech could arguably render the conviction unsafe only if counsel’s advocacy or conduct was so incompetent or unprofessional as to deprive the client of an adequate defence, so that the jury could not fairly judge the case. Nothing of such a kind occurred here. In sum, we agree with the views of the single judge, who also had the advantage of transcript and tape, that so long as the events in court before the jury did not render the conviction unsafe, as in his and our judgment it did not arguably do, this court will not enquire into counsel’s tactics or ask why he acted as he did, still less enquire into his private activities. We therefore refuse leave to appeal on this ground.

Mark’s renewed ground 9(f): the Howley connection

(f) : the Howley connection

[101]One of the co-accused (on count 3) was Michael Howley, about whom the jury could not agree. One of the documents found in Mark’s possession was a business card for “Kenneth Howley Transport”; the card had gone into the jury bundle. There was no connection between the two Howleys and no one had suggested any. In the course of the summing up, but at a time when the jury was out of court, Mr Mills on behalf of Mark asked the judge to emphasise the lack of connection. Mr Mills accepted that no one had in any event suggested any contact between Mark and Michael Howley, or indeed that he had anything to do with either Howley. The judge declined Mr Mills’ invitation. It is now submitted that this was a significant omission from the summing up which makes Mark’s conviction unsafe. We simply say that this is a hopeless submission.

Mark’s renewed ground 9(g): evidence favourable to Mark

(g) : evidence favourable to Mark

[102]Finally, Mr McGuire submitted that the summing up was substantially defective and unfair in that the judge omitted to remind the jury of evidence in the case which could be said to be favourable to Mark, in particular that(i) he was never seen at Unit G;

(ii) he was not picked out at any identification parade;

(iii) there was no significance in his having the telephone number of a Mick Murtagh;

(iv) he had not attempted to conceal or dispose of his black book, which he had with him when arrested; and

(v) there was no evidence that he had made any relevant entry in that black book. In refusing Mark’s no case to answer submission, the judge had promised to direct the jury strongly and clearly as to the nature of the evidence in relation to each defendant, but he had failed in these respects to do so.

[103]Although it was not even a ground of appeal, Mr McGuire also sought to bring under this heading a further complaint that the judge had failed to direct the jury in relation to Mark’s involvement in the money laundering conspiracy (count 2) at all.

[104]We have carefully read what the judge has to say about Mark, whom he deals with specifically about two-thirds of the way through his summing up. At an earlier stage of his summing up he had directed the jury to consider the case against each defendant and in respect of each count separately. He had also subsequently and separately directed them against the danger of assuming guilt by mere association, whether as business partner or, in the case of the Owens, as brothers as well as partners. In that connection he again directed the jury, in still stronger and lengthier terms, of the importance of taking account of the evidence as to each defendant, and of not proceeding from the guilt of one brother to that of the other. When the judge came to deal specifically with Mark, we think that he treated him at least fairly if not somewhat favourably. He began by reminding the jury that the prosecution had never specified precisely what Mark’s part in things was said to have been; and that it was for them to say whether the evidence in relation to him satisfied them that he had voluntarily, willingly, knowingly, participated in either of the two conspiracies with which he was charged. He ended his passage on Mark by reminding the jury of the final speech made on his behalf, when he said “It is argued on his behalf that there is no evidence to suggest to your satisfaction so that you can be sure about it that he is guilty of an offence or conspiring at all in this case to do anything unlawful”. In between, the judge had reviewed some, but by no means all, of the evidence which the prosecution had relied on against Mark, principally by reference to his black book. He had previously directed the jury, in terms as to which there has been no complaint at this hearing, about how the jury should regard diaries and other documentation (such as the “G&M” entries), and the need, for instance, for the jury to be sure that the person who wrote a name was a conspirator himself, that an individual referred to was that person, and that the entry was made in furtherance of the conspiracy or was connected with its aims. As for Mark’s interviews, he reviewed them with care, because, as he had previously directed the jury and as he now again reminded them, it was argued on behalf of someone who had not given evidence at trial that he had said everything that was necessary to the police. Although it was not subject to cross-examination in court, it was the account given by Mark at the time.

[105]Although there was no separate dealing with count 2 with respect to each co-accused, as in Mark’s case, we consider that to have emphasised a separation in each case would have led the judge to have reduplicated evidence, possibly unfairly, against the defendant. It was in the nature of the case that the evidence of connection with the conspiracies through the diaries and other documents was intertwined: as it would have been in real life.

[106]We consider that, although there may have been other ways, and perhaps better ways, of presenting the summing-up of the evidence across the various defendants and the two conspiracies, nevertheless what the judge did was undoubtedly fair, and, as we have said, if anything, favourable to Mark Owens. By emphasising the difference between the evidence against Gary and the relative paucity of the evidence against Mark, and by his clear and strong directions against the danger of guilt by association, the judge had adequately fulfilled his promise at the time of refusing Mark’s half time submission of no case to answer. It was not for the judge to go out of his way, especially in a case where Mark had given no evidence, to emphasise arguable absences of evidence or to reduplicate a final speech for the defence. There is no complaint of any defect in the directions of law given by the judge.

[107]We conclude that there is no arguable basis in relation to this final ground of appeal, whether as perfected or as expanded or rather re-directed at the hearing. We refuse leave to appeal on this ground as well.

The safety of Mark’s conviction

[108]We therefore revisit the question of the safety of Mark’s conviction by reference to the single ground of appeal which we have accepted, that relating to the sampling and analysis of the fuel in Mark’s VW car.

[109]In our judgment, however, this error in admitting the analysis does not make his conviction unsafe. There was good evidence that the VW was used to escort the carriage of fuel, if the Customs’ observations were accepted. The car was also observed at Unit G. The keys to a tractor unit used to transport the fuel were found in the VW. The fact that the car belonged to Mark was prima facie good evidence to link Mark to the conspiracy: but if his car was available to others, e.g. to his brother, against whom the evidence was overwhelming, and the jury was on that ground unsure of Mark’s complicity, then the fact that the car had laundered fuel in it was neither here not there. If, however, the jury was sure that use of the car linked Mark to the conspiracy, then again the finding of laundered fuel in it added nothing. In truth and in any event, Mark was linked by more than the car: his DNA was on the bottle of Lucozade found in a tractor unit at Unit G; he was present with conspirators at Castleford Road at least some of the time; and both his own documents and those of others cross-linked him with other conspirators, such as John Desmond and, of course, his brother. He was not merely his brother’s brother. He was in the haulage business with his brother, as an equal partner. He shared Station Yard with his brother, he said for the purpose of that business. It was to Station Yard that the red diesel and the chemicals were delivered. It was from Station Yard that the red diesel was taken to Unit G. The plastic cubes, used at Unit G to house the sludge removed from the laundered fuel, were also found at Station G. His name was linked with his brother’s name and that of John Desmond in the Dorans’ documents and the banking by the Dorans of a cheque in payment for laundered fuel sold to Booths. The landlord of Unit G referred in his documents not only to “Gerry”, i.e. Gary, but also to “Keith” (Lester) and “Mark”. Both Gary and Lester were conspirators. In our judgment, on this evidence it beggars belief to think that Mark was not a co-conspirator with his brother and the Desmonds. He had a case to answer, and he provided no evidence to diffuse that case against him. His convictions are not unsafe. His appeal is therefore dismissed.

Sentence

[110]We therefore come to matters of sentence, where both brothers have an appeal. Gary and Mark received 6 and 4 years imprisonment respectively, made up of consecutive sentences (of 3½ plus 2½ years and 2½ plus 1½ years respectively). Leave to appeal was granted on the basis that it was arguable that consecutive sentences for the two conspiracies ought not to have been imposed.

[111]Both brothers were of previous good character. They were in their early thirties at the time of the conspiracies, with Gary being some 4 years older than his brother.

[112]In his sentencing remarks the judge said that Gary had played a very senior part and a leading role in the conspiracies. Although he had suffered a heart attack in March 2002, he continued his activities within days of being discharged from hospital, undeterred. There was little mitigation. As for Mark, his role was less clear and the judge did not accord him the same leading role or capacity as his brother: but he had no reason to be present on the scene, away from his home and business in Northern Ireland, but to participate in the conspiracies. It was right that the sentences on the individual counts should be consecutive.

[113]On appeal, Mr Stables, on behalf of Gary, carried the burden of the submissions. There was no criticism of the sentences in principle, or as to their individual lengths, but it was submitted that they ought to have been concurrent. However, the Customs had lost excise duty of over £1 million, and it was accepted that the tariff at that level for a leading player was 5 to 7 years (R v. Czyzewski

[2004] 1 Cr App R (S) 49

). Therefore, Mr Stables acknowledged that there was difficulty in putting the appeal in terms of totality or, equally, on the effect of the consecutive sentences. In truth, the essence of the appeal was a submission of disparity, between the way in which the judge sentenced Gary and the way he subsequently sentenced John Desmond.

[114]It will be recalled that the Desmonds had pleaded guilty before the start of the trial before the jury. Those pleas, however, Mr Stables informed the court, came as late as 28 January 2005. The jury verdicts were returned on 6 April, and the judge sentenced the Owens on 5 May. The Desmonds, however, were not sentenced until 13 September 2005. This was because the Desmonds had sought to change their pleas, which led to an adjournment, the possibility of new representation, the confirmation of their pleas but on a stated basis not accepted by the Crown, a further delay for the possibility of a Newton hearing, and then finally the abandonment by the Desmonds of the stated basis of plea. Despite this prevarication, John Desmond received a concurrent sentence over the two counts of only 27 months, even though his role was described by the judge as important, in an organisational capacity.

[115]Mr Stables submits that a total of 27 months on a plea is equivalent to a sentence of 3½ years on conviction after trial. If the sentences on the two counts were concurrent in John Desmond’s case, therefore, they should have been concurrent in Gary’s case too. There was nothing to choose between the two. The disparity was inexplicable and suggested that something had gone wrong with the administration of justice.

[116]On behalf of Mark, Mr McGuire adopted Mr Stables’ submissions.

[117]In our judgment, nothing turns on the question of consecutive or concurrent sentences. The judge was clearly concerned in all his sentences to reflect a totality which reflected appropriate and just punishment. He could effect this by either a consecutive or a concurrent approach. In adopting totalities of 6 and 4 years for the Owens brothers his sentences were well within tariff limits for the two conspiracies, and would have been within tariff limits on a single count of conspiracy to launder the fuel. It was open to him to make up his total by consecutive sentences.

[118]In the case of John Desmond, the judge made the following points in his sentencing remarks. First, that despite the lateness of the plea (or any prevarication in connection with it) he was giving “substantial credit” for the acceptance of guilt. He said that the Desmonds were entitled to await the outcome of legal argument before deciding on their pleas. This must have been a reference to applications made to the judge in January 2005 before the trial began before the jury. Next, he said that the guilty pleas “make a substantial difference between yourselves and others in the case”. He referred to John Desmond’s age of 60 and his previous good character. He acknowledged the important role which John Desmond had played (it is impossible for us to judge exactly how it compared with that of Gary Owens, but it is clear from the judge’s remarks in general that he was well aware of how he had sentenced the other conspirators back in May 2005). The judge then continued:

“I have read with care all that there is to be read in terms of documentation about you and I have reduced the sentences in my own mind very, very substantially by comparison with those who were found guilty by the jury earlier this year.”

[119]In these circumstances, it seems to us to be impossible to say that there is a disparity in the sentences of the Owens brothers and of John Desmond. Apart from a full credit for his plea, and a particular view by the judge as to where John Desmond’s overall responsibility within the conspiracies lay, it is clear that the judge was impressed by personal mitigation. It is plain that the judge, mindful of his earlier sentences, was prepared to reduce his sentence in the case of John Desmond by a substantial amount. He did so by putting the totality of his sentence into concurrent sentences: no doubt, and understandably, he thought that, at that level of sentence, it would not have been appropriate to have divided the totality between the two counts consecutively.

[120]We therefore dismissed the brothers’ appeals on sentence.

[121]Following our decision on sentence, which was communicated at the end of the hearing, the solicitors for Mark Owen wrote to the Civil Appeal Office to say that they had not seen the judge’s sentencing remarks in the case of John Desmond, and to raise the question whether the reason for the judge’s lower sentence in the latter case was because of the fact that the Dorans’ trial in Belfast had collapsed on 17 June 2005, in between the sentencing of the Owens and that of the Desmonds. The possibility was raised, therefore, that on at any rate count 2 John Desmond’s responsibility did not include money laundering through the Dorans.

[122]We do not consider that this query merits the re-opening of this appeal. The transcript of the sentencing remarks of John Desmond was before the court and was expressly referred to at the hearing by Mr Stables. There is no suggestion whatsoever in those remarks that any discount was accorded to John Desmond on the basis of the Dorans’ acquittal. If that had been done, it would have undoubtedly been mentioned. As it is, the reasons given by the judge for his lower sentence in the case of John Desmond are adequately and otherwise explained, as set out above. In any event, John Desmond pleaded guilty to count 2 on the basis alleged against him at trial, which included the allegations concerning the Dorans. Finally, the fact remains that he accepted his guilt on count 2.

Postscript

[123]Finally, we mention something which occurred when the hearing of the appeal began. After a short adjournment requested by the parties, we were informed that, subject to the willingness of the court to accept such an arrangement, the Crown and the appellants were able to compromise the appeals on the basis that the Crown would not resist the appeals of both brothers on count 2, on terms that all other renewed applications and the appeals against sentence were withdrawn. The effect of such a compromise would be that the brothers would stand convicted, after appeal, on the basis of count 1 alone, and would serve the remaining sentences of 3½ and 2½ years respectively.

[124]We informed the parties that such a compromise was in our experience unprecedented, and that we were unable to proceed on that basis. Of course, there are occasions, for instance where new evidence comes forward on appeal, where the Crown indicates that it is not minded to resist an appeal. Even in such circumstances, however, the matter is fully opened to the court, so that the court can form its own view of the situation and resolve the matter for itself. In the present case, however, the suggested compromise had no logical or intellectual basis in the appeal, and simply represented a “deal”. It was described by counsel as a “compromise”. It was unacceptable. It showed a fundamental misunderstanding of the function of the court in determining appeals in accordance with section 2 of the Criminal Appeal Act 1968, namely to allow an appeal against conviction if the court considers the conviction unsafe, and to dismiss the appeal in any other case.