Spartley, R. v [2007] EWCA Crim 1789

Case No 2006/5054/D1[2007] EWCA Crim 1789
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 15 May 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE KEITH
HIS HONOUR JUDGE LORAINE-SMITH
(Sitting as a Judge of the CACD)
Between
R E G I N ACrown-v-
Between
MALCOLM SPARTLEY
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR M KELLY appeared for APPELLANTMR J DAWES appeared for CROWN
J U D G M E N T

LORD JUSTICE LAWS:

[1]This appellant faced an indictment containing three counts. His brother Keith Spartley was jointly charged on all three, all of which alleged drugs offences. Count 1 charged an offence of conspiracy to import ecstasy, count 2 possession of cannabis with intent to supply and count 3 possession of cannabis resin with intent to supply. On 8th September 2006 at the Woolwich Crown Court before His Honour Judge Moss, the appellant was acquitted on count 1 but convicted on counts 2 and 3. He was sentenced to 89 weeks' imprisonment on count 2 and 26 weeks concurrent on count 3. He now appeals against his conviction by leave of the single judge. His brother was also acquitted on count 1 and convicted on counts 2 and 3.[2]As for the facts, count 1 concerned just over a million ecstasy tablets worth between £1 million and £15 million depending on the circumstances in which they might be sold and the way the value is calculated. They were concealed in two pallets of china or crockery. The Crown alleged that on 15th February 2006 this consignment was delivered to a freight company in Holland for shipment to the United Kingdom. Its destination here was the premises of a transport company in South East London called Caffins. The date of shipment was to have been 17th February 2006, but was changed to 22nd February. However the plot was rumbled and the drugs were seized before they got into this country.[3]On 22nd February, the date of prospective delivery, the appellant's brother and co-defendant arrived at Caffins allegedly to collect the consignment and was there arrested. The Crown sought to connect the appellant with this consignment for the purposes of count 1 through a series of circumstances. He had flown over from Holland where he lived just before the importation. His home in Holland was near the address of the freight company which was to have shipped the goods. Telephone evidence connected him with conspirators in Holland who were involved in the enterprise. Powdered ecstasy, powder allegedly from the same manufacture as was responsible for the imported ecstasy, was said to have been found in his bag when he was arrested.[4]The co-defendant, the brother, lived in Oswestry. After his arrest police officers went there. They found the appellant on his own having flown from Holland the night before. In a barrel in the garden, partly concealed in undergrowth, they found nearly two kilograms of herbal cannabis or "green" as it is sometimes called, valued at between £4,000 and £9,000 and half a kilogram of cannabis resin valued at £300 to £500. These drugs were all packaged together in heat-sealed bags. In the stables at the Oswestry premises were found a heat-sealing unit with a large number of plastic bags and also a large quantity of crockery which was very similar to that used in the seized consignment of ecstasy. There was also found in the spare room occupied by the appellant a bag containing 4.96 grams of crystalline powder, which was found to be indistinguishable in scientific terms from the tablets in the seized consignment.[5]The Crown case on counts 2 and 3 was that the herbal cannabis and cannabis resin had come to the country on an earlier occasion and that the appellant and his brother were engaged on a joint enterprise to possess the cannabis intending to supply it on.[6]The appellant was arrested at Oswestry and interviewed. In interview he claimed to know nothing of the drugs found in the grounds of the property there and nothing about the ecstasy. He had, he said, seen "a fucking kilo" or one or two bags of drugs in the house, where however he was to say he was merely a visitor on the day the police went there.[7]On counts 2 and 3 the Crown relied of course on the appellant's presence where the drugs were found, on transfers of money between the defendants at a time or times when other Dutch conspirators were phoning and texting the brother, on certain phone calls and texts to the appellant himself, on the admission about "a fucking kilo" and on the fact that the cannabis was wrapped in heat-sealed bags, the appellant having admitted knowledge of the existence of an industrial heat-sealing machine in the shed at the property. The Crown also relied on another piece of evidence and this is critical to the appeal. It consisted in what was said to be an admission seven years earlier by the appellant to the Dutch police to the effect that he, the appellant, had smuggled 35 kilograms of cannabis from Holland to Spain.[8]Before coming to that area of the case in somewhat greater detail, it is convenient just to refer to certain directions given by the judge to the jury as regards the relation between count 1 on the one hand, upon which it will be recalled the defendants were acquitted, and counts 2 and 3 on the other. The judge directed the jury that if they were sure that the appellant was party to a conspiracy to evade the restrictions on importing drugs into the United Kingdom but were not sure that he knew or believed the drugs in question were class A, they should find him not guilty on count 1 but go on to consider whether or not he was guilty on counts 2 and 3. If they were not sure that he was party to any sort of conspiracy to bring drugs into the United Kingdom, the judge directed them to find him not guilty on counts 2 and 3, as well as count 1.[9]The jury sent a note before they retired and in response to that the judge said that if the jury concluded that they were sure the appellant was involved in a conspiracy to import a class C drug and that the class C drug related to the cannabis found in the Oswestry garden, they would find him not guilty on count 1 but could go on to consider counts 2 and 3. If they concluded that he was not involved in any conspiracy to import drugs then they would find him not guilty on counts 2 and 3. There is every reason to suppose that the jury had those directions in mind and applied them in arriving at the verdicts to which they came.[10]It is convenient to turn to the issues relating to the earlier admission to the Dutch police. In his police interview in this case the appellant had stated that he had never been in trouble with the police and knew nothing about the ecstasy or the cannabis found at the Oswestry house. On 9th August 2006 the Crown gave notice of their intention to apply to adduce bad character evidence against the appellant. The trial at that time was fixed to commence on 30th August 2006. The application on the 9th was thus outwith the timeframe for such an application to be made as contemplated by the Criminal Procedure Rules. It is not necessary to go into the detail, but it is right to say that Rule 35.8 gives the court a discretion as to the means of introduction of such applications. In the event the judge heard the Crown application on 24th August 2006 before the trial started.[11]The material in question consists of the record of an interview given by the appellant to Dutch police on 3rd July 2000. The original document is in Dutch. We have a translation whose accuracy is not, we understand, disputed. Although the original is a Dutch document in fact the interview itself had been conducted in English, the document created in the Dutch language. The document was contained within a police case file relating to the appellant. It had come into the hands of the English authorities following a request of 28th February 2006 by way of a commission rogatoire which had been issued to the Dutch authorities for disclosure of any information relating to previous convictions or arrests of the appellant. It is important to notice, given the nature of the grounds of appeal, that the Crown have not been in possession of any other material pursuant to the request to the Dutch authorities beyond this file and we do not understand any other documents in the file to be of any specific assistance to either party before us. In any case, as we shall indicate in a moment, the file was available at court.[12]The record of the interview begins, quoting the translation:
"After the suspect had been told what he was suspected of and that he was not obliged to answer, he stated..."
And there follows a lengthy narrative by the appellant. In the course of it he told the police that in late May 1999 by agreement with a man called Sjaak he took a suitcase weighing some 35 kilograms and containing cannabis from Holland to Madrid and was paid 2,500 Dutch guilders for doing so. The judge on 24th August 2006 acceded to the Crown application and let this evidence in. On 4th September 2006, after the co-defendant had given evidence, a submission of no case to answer was made on behalf of this appellant and rejected by the judge. The grounds of appeal have been drafted in a somewhat diffuse fashion. We are inclined to agree with counsel for the Crown (skeleton argument 10th April 2007) that they may safely be reduced to three overall contentions and this approach is in conformity with the way in which Mr Kelly for the appellant has ordered his oral submissions before us today. The three propositions are these: 1. The Crown failed in its duty of disclosure in relation to material that related to the bad character of the appellant. 2. This lack of disclosure resulted in the appellant being unable properly to resist the Crown's application to adduce evidence of the bad character material. 3. The bad character evidence should have been ignored by the trial judge in considering the merits of the half-time submission on counts 2 and 3, and moreover, even taking the bad character evidence into account there was not sufficient evidence to go to the jury on those two counts.[13]As for the first of these points, failure to disclose as required, the appellant says there was no disclosure of any facts relating to the surrounding circumstances of the Dutch interview which might have critically affected the weight to be put on the interview itself. Mr Kelly submits in effect that the Crown were under a duty to make further investigation, beyond presumably the contents of the file, and disclose its fruits to the defence. However, it is to be noted as we have said first that the Crown disclosed all they had, secondly as we have also indicated the Dutch file was available for inspection at court, and thirdly, we understand the Dutch police officer who produced the file was available to come to court but was actually de-warned (as it is put) by the defence. It seems to be clear, as submitted for the Crown (see paragraph 5 of the respondent's skeleton) that the Crown's duty of initial disclosure provided for by section 3 of the Criminal Procedure and Investigations Act 1996, as amended by the Criminal Justice Act 2003, was fulfilled. The Crown disclosed everything they had relating to the July 2000 interview. There was no application for further unused material put forward on behalf of the defence.[14]As to the second of the three propositions, we consider the appellant had time in which to respond sensibly to the application to admit the material and to respond to the material itself once admitted. It is to be noted that he accepted he made these submissions to the Dutch police. There was no suggestion that he had done so under duress or in response to an improper inducement. The appellant had been warned he need not answer and had signed the interview. In the present case he had told the police he had not been in trouble with police before and would not involve himself in an enterprise of the kind suggested. The evidence of the interview was in our view plainly admissible, at the least to correct evidence of a false impression - see section 105 of the Criminal Justice Act 2003. In any event, and we attach some importance to this, the appellant admitted the truth of what he had told the Dutch police. He admitted it in evidence to the jury. The judge summed up his evidence relating to the matter in this way:
"Malcolm Spartley tells you that he admitted his actions to the Dutch authorities, who treated him more as a witness than as a suspect, and he was never charged, and therefore it did not occur to him that he had ever been in trouble, and that is why he said he never had been. In any event, it is some seven years ago and that also was something that he put out of his mind. The drugs, he points out in relation to the cross-border aspect, were not in any event class A; they were of an entirely different nature. He was also frank with the police during his interviews about his own drug abuse, and, far from holding it against him when he was so frank, and indeed he was frank with the Dutch authorities, you should bear in mind this frankness in his favour when considering his denials of any involvement in the allegations set out against him."
Mr Kelly has submitted this morning -- this perhaps goes as much to the first of the three propositions as to the second -- that the introduction of the Dutch interview in some way imposed an illegitimate onus on the appellant which he should not have had to bear. We do not agree. The evidence was properly admitted. It would have been open to the defendant to investigate the file or cross-question the Dutch police officer. Any difficulties as to translation could surely have been overcome. It would have been open also to the defendant to give any evidence that he desired to put before the jury relating to the circumstances of the Dutch interview. That possibility does not constitute an acceptance of an illegitimate onus by the appellant. It merely points to the obvious commonsense possibility that the appellant may have wished to respond to admissible evidence in the case. In the particular circumstances here we do not consider that the prosecution were obliged to conduct further investigations.[15]All in all then it seems to us that the Dutch interview of July 2000 was properly introduced by the Crown, properly permitted to go before the jury by the judge and properly dealt with, both at the stage when the submission of no case was made and in the summing-up.[16]There remains the third of the three propositions. Given that the evidence of the interview was, as we have held, properly admitted, obviously its admission cannot affect the integrity of the judge's rejection of the no case submission and in our view that decision was otherwise sound. The assertion for the appellant, correct so far as it goes, that counts 2 and 3 were charges of possession with intent to supply rather than importation or conspiracy to import, is in our judgment a mere distraction. There was ample evidence of the possession offences charged and no proper complaint can in our view be made of the judge's treatment of the relation between count 1 on the one hand and counts 2 and 3 on the other.[17]We have concluded that there is nothing in this appeal and it will be dismissed.