Hewgill & Ors, R v [2011] EWCA Crim 1778

Case No 2010/00900/D5, 2010/00902/D5 & 2010/03378/D5

[2011] EWCA Crim 1778

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

Venue ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM, The Recorder of Birmingham, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/07/2011

Before

LORD JUSTICE THOMAS

MR JUSTICE SWEENEY

HIS HONOUR JUDGE PAGET QC

Between

ReginaRespondent

Michael HewgillAppellants

David HancockAppellant

Gloria Anne MurrayAppellant

Mr N L Lithman QC for Appellant (Hewgill)

Mr A Barker QC for Appellant (Hancock)

Mr P Du Feu for Appellant (Murray)

Mr T J Spencer QC and Mr J Butterfield for Respondent

Hearing Hearing dates: 17 & 18 May 2011

Judgment

INTRODUCTION

[1]On 14 October 2009, a trial commenced at the Crown Court in Birmingham before the Recorder of Birmingham of six defendants on various counts of conspiracy relating to the supply of drugs. On 14 January 2010, the jurors returned guilty verdicts in respect of five defendants and acquitted one. They had, however, not reached a verdict in relation to one count, count 4, in which the appellant, Hewgill, was charged alone with conspiracy to supply heroin. One of the defendants who had been convicted along with Hewgill on the other counts, the appellant Murray, was released on bail pending sentence.

[2]In circumstances which we will need to describe in more detail, she crossed the road from the Crown Court to The Crown Pub, a pub often used by some jurors who do not want to use the catering facilities at the court. In the pub she saw two of the jurors and approached them. Over a period of approximately just under two hours she had conversations with two of them in which it is clear the position of Hewgill was discussed.

[3]On the following morning those two jurors mentioned the conversations to other jurors, but no-one mentioned the conversations to the judge or any other officer of the court or any lawyer. The jury retired. Shortly after noon Hewgill was unanimously found guilty. He was sentenced subsequently to a total of 23 years imprisonment. In due course the fact that there had been such conversations between Murray and two members of the jury formed a ground of appeal by Hewgill, who also advanced other grounds.

[4]His application for leave to appeal was referred to the Full Court by the Registrar, together with the applications for leave to appeal by Murray and another defendant, Hancock. In December 2010, the Full Court asked the Criminal Cases Review Commission to investigate what had happened between Murray and the jury and other contact that had taken place between the jury and defendants. A thorough and comprehensive report was produced by the CCRC which also brought to light more information about other contact between the jurors and the defendants. In the result, therefore, in addition to other grounds of appeal, Hewgill contended that not only should his conviction on Count 4 be quashed, but also his conviction on other counts because of contact between the jury and the defendants prior to 14 January 2010. The appellants Hancock and Murray joined in that other ground. At the hearing of the application, which was to be treated as the hearing of the appeal if we granted leave, no application was made to call any evidence.

[5]As far as we are aware, it is unprecedented for a conversation such as that which occurred on 14 January 2010 to have taken place without the court being informed. It was the Crown’s contention that, although what happened plainly should not have happened and the jurors should have reported the matter to the court, the court should infer from the conduct of Hewgill during the trial that the contact on 14 January 2010 was instigated by Murray on the instructions of Hewgill and it should, therefore, have no effect upon the convictions. The other contacts were unsubstantiated and should not affect the convictions.

[6]It is therefore necessary for us to set out in a little more detail the facts relating to the trial, the course the trial took and the evidence provided to the court by the CCRC. THE FACTUAL BACKGROUND (1).

(a) The undercover evidence

[7]Hewgill had been tried at the Crown Court in Nottingham in 2000 for offering to supply cocaine, supplying cannabis and supplying amphetamine. He had been sentenced to a total of seven years imprisonment; in prison he met Ruen Bennett. In 2008, an undercover police officer known as “Scott” infiltrated those dealing in drugs and in due course on 8 May 2008 through Bennett was introduced to Hewgill. Scott made a series of covert tape recordings of conversations with Hewgill in which Hewgill discussed on a number of occasions his dealings in drugs. It was the Crown’s case that Hewgill was regularly ordering drugs from Holland and distributing them, as he explained in the covert recordings when he offered to arrange a supply. Hewgill also discussed with Scott establishing premises for the cultivation of cannabis.

(b) Hewgill’s defence

[8]Hewgill did not dispute those conversations; his case and his evidence was that the conversations in which he had spoken about drug deals (other than one to supply amphetamine to Scott) were mere bravado on his part in an attempt to convince Scott that he was a big supplier and importer. What he had said to Scott about the involvement of the other defendants, namely Hancock (who was alleged to be Hewgill’s assistant and driver), Matthew Fox and Simon Fox (brothers who were alleged to have assisted Hewgill with drug deliveries and storage), Ruen Bennett (a customer of Hewgill) and Murray (another customer of Hewgill) was all lies. Although the recorded conversations were the primary evidence against Hewgill, there was also other evidence, including evidence about the various movements of the defendants, telephone data and other matters.

(c) Hancock & Murray

[9]The case against Hancock was also based on what Hewgill had said in conversations, together with some covert conversations between him and Scott. It was his case that although he was a friend of Hewgill and travelled with him, he was not involved in any drug dealing. The case against Murray was based on her contact with Hewgill, his conversations with Scott in which he spoke of his dealings with her and various transactions. She accepted that she knew Hewgill as he had been one of her suppliers when she had dealt in amphetamine in the late 1990s. She had resumed dealing in 2007 while Hewgill was in prison, but using other suppliers. During the period of the conspiracy her only contact with Hewgill had been as a friend and did not relate to the supply of drugs. (2).

(a) The initial applications

[10]The trial started on 14 October 2009. Prior to its commencement the judge ruled that the transcripts of conversations with Scott were admissible against the other conspirators. At the outset of the case, the judge dismissed an application made by Hancock that the proceedings be stayed for abuse of process on the grounds that Scott had used Bennett to circumvent the law relating to covert surveillance by permitting him to commit crimes without fear of arrest.

[11]Hewgill was represented by Charles Garside QC; his junior was Mr Guy Wyatt, an advocate employed by G V Hale & Co, Hewgill’s solicitors. No defence case statement was served. There was an application at the outset made, on instructions, by Mr Garside QC that there be a substantial adjournment while Hewgill listened to the relevant tape recordings. The judge refused, but arrangements were made for him to hear the tapes during the trial. It is contended that the judge was wrong, a contention which forms a separate ground of appeal to which we return at paragraph 47.

(b) The cross-examination of Scott

[12]After Mr Garside QC had completed the cross-examination of Scott, on 20 November 2009 Hewgill told Mr Garside QC that he considered that he had not put his case and he wanted to represent himself. The matter was raised with the Recorder of Birmingham; Hewgill was able to make his own representations to the court. What then happened formed a separate ground of appeal (to which we refer at paragraph 49 below), but in the result the judge ruled that no further substantial cross-examination would be allowed. After the ruling Hewgill gave written instructions that he wished Mr Garside QC and Mr Guy Wyatt to continue to represent him.

(c) The change in Hewgill’s representation

[13]The representation by Mr Garside QC continued until 30 November 2009 when the prosecution case was about to close. Shortly prior to that date, there was considerable discussion between Mr Garside QC and Hewgill about the list of admissions that were to be put before the jury. Eventually a draft was agreed which Mr Garside went through with Hewgill. The document was ticked and the version read to the jury. Shortly thereafter when Hewgill saw Mr Garside QC, he stated he had not agreed the admissions and accused Mr Garside of forging the ticks that were on a copy that Hewgill gave him. Mr Garside QC told Hewgill that he was prepared to continue to represent him, if he withdrew his allegation, but he could not do so if he persisted with it. Hewgill refused to withdraw the allegation. Mr Garside QC concluded that in all the circumstances he could no longer continue to conduct the case. Mr Guy Wyatt concluded he was in the same position. The court was informed by Mr Garside that Mr Hewgill had accused him and Mr Guy Wyatt of dishonesty and he had no alternative but to tell the court they could no longer represent Hewgill. Hewgill made clear to the judge that he was content with the decision.

(d) The applications to discharge the jury

[14]Hewgill’s solicitors, G V Hale & Co, then instructed Mr Lithman QC. On instructions from Hewgill, Mr Lithman QC told the court that there had been a breakdown in communications between Hewgill and his counsel which had resulted in them walking away from the case. He applied to discharge the jury.

[15]In a ruling given on 2 December 2009, the Recorder of Birmingham refused the application; he rejected the submission that Hewgill had not had sufficient time with his counsel; he also rejected the submission that Mr Garside QC and Mr Guy Wyatt had walked away from the case. On the basis of what he had seen it did not seem to him that the decision of Mr Garside QC and Mr Guy Wyatt to cease representing Hewgill was of their making. He went on to decide that the case was not massively complicated; although there would be disadvantage in counsel coming in late, the disadvantage was not as great as it might at first appear. The case could continue.

(e) The submission of no case to answer

[16]Thereafter Mr Lithman QC and Mr Anthony Wyatt represented Hewgill. Submissions were made of no case to answer which the judge rejected. A further application to sever the indictment and discharge the jury was refused.

(f) The summing-up and verdicts on all counts except count 4

[17]The judge summed the case up between 9 and 12 January 2010. The jury commenced considering their verdict at 11.15 a.m. on Tuesday, 12 January 2010; there were by that stage only 11 jurors as one had been discharged on 20 November 2009. At about noon on Thursday, 14 January 2010 the jury returned some verdicts. Later in that day, after a majority direction, it returned further verdicts. The verdicts returned that day were: Count 1 Conspiracy to import Amphetamine Count 3 Conspiracy to import Cannabis Count 5 Conspiracy to Supply Amphetamine Count 6 Conspiracy to Supply Cannabis Count 7 Conspiracy to Cultivate Cannabis Hewgill Guilty Guilty Guilty* Guilty Guilty (10-1) Matthew Fox Not guilty Not guilty Guilty* Not guilty Simon Fox Not guilty Not guilty Not guilty Not guilty Bennett Guilty Guilty Hancock Not guilty Not guilty Guilty (10-1) Guilty Murray Guilty Guilty (10-1) *These were pleas.

[18]At 2.45 p.m. the jury were sent away until the following morning; as we have mentioned, they had the one remaining verdict on Count 4 in respect of Hewgill to consider. Although Murray’s advocate’s primary submission was that she wanted to know her fate as soon as possible, he suggested it might be right if she and Hewgill were to make their mitigation at the same time. The judge acceded to that alternative submission and to her counsel’s further submission that she should be allowed time to sort out her affairs by being granted bail pending sentence. She was released on bail and went to The Crown pub. (3). The events at The Crown pub on 14 January 2010

[19]As we have set out, the CCRC carried out an investigation for the court. They interviewed each of the 12 jurors to ascertain from them answers to the questions which the court had, after consultation with all counsel in the case, asked should be put to the jurors. The jurors were each shown the CCTV footage and stills. The two jurors who had spoken to Murray, juror 5 and juror 12 were asked further questions.

[20]The court wishes to record its gratitude to the CCRC for its thorough and painstaking investigation and for its clear report. Its work has been essential to ensuring the interests of justice can properly be considered by the court in the circumstances that have arisen.

[21]In the light of the jury’s responses to the questions, our viewing of the CCTV footage, our consideration of the prior contact between other jurors and the defendants to which we refer at paragraphs 27-32, we make the following findings: i) Juror 5, juror 12 and juror 12’s wife went to The Crown Public House. ii) There can be no doubt but that it was Murray who made the approach to the two jurors; she can be seen noticing them and then approaching them; one of them described her approaching them “as bold as brass.” iii) The evidence of the two jurors set out in their answers to the CCRC was that she appeared to have been drinking. iv) The accounts of the jurors differed as to what was said during the initial meeting. Juror 5’s evidence was that Murray told them that she was not blaming the jury; the jury had only done their job but they had got it wrong, “Hewgill was not the main man, I was, and have been for the past 25 years”. Juror 12’s account was that she shook his hand and said, “Well done on the one but you fucked up on the other hand”. She then walked away. The record of the video log shows that the initial contact between juror 12, 5 and Murray lasted about10 minutes. v) Juror 12 then said he asked her if she wanted a drink. She replied, “No, I’ll get these.” She then walked off to the bar and he went to help her carry the drinks. Juror 12 then said that she started to talk about Hewgill. She did all the talking. He had not said a lot. She said, “Hewgill – I wish I had not got involved with Hewgill.” She referred to him as “Simple Mick”. She was very hard on him. She was worried about getting the same amount of years as Hewgill would get. vi) There was then a conversation between Juror 12’s wife and Murray in which his wife said that she did not approve of selling drugs. Juror 12 said that he bought Murray a drink and she was with him for some time. It is not clear how long the contact between juror 12 and Murray lasted, but the timing on the CCTV camera showed them together at 17:11, 18:20 and 18:49. vii) Juror 12 told the CCRC that whilst the judge had reminded the jury not to discuss the case with anyone, he had not told them not to speak to or avoid contact with the defendants if they saw them outside court. When the judge had said that they should not talk to anyone, he had taken that to mean anyone not connected with the trial and was confused when Murray approached them. This was not, as was submitted by Mr Lithman QC, evidence of a tainted jury, but of a juror who had not applied his mind to what the judge had said. viii) On the following day, as we have stated, nothing was said to anyone outside the jury about what had happened. It is, however, clear that some of the other jurors were told of the conversation. Juror 3 was told there had been a conversation; his evidence was that he did not know what was said. Juror 6 recalled being told that Murray had told one of the jurors, “What an idiot Michael Hewgill was”; juror 11 was also made aware of the conversation. His recollection was that Murray had come into the pub and said something to the effect that the jury got them “banged to right, except for the fact that she was the main person in the case and not Michael Hewgill. In other words the jury had got her and Hewgill the wrong way round in terms of who was running it.” ix) That was the position when the jury returned to court at 10:12 and were re-sworn and retired to consider their verdict. x) At 12:02 they returned and found Hewgill guilty unanimously on count 4. (4). The further events at the pub on 15 January 2010 and the events thereafter

[22]After the final verdict had been taken on count 4, the jurors were discharged. Nine of the 11 jurors then went to The Crown. It appears that on that occasion a number of them spoke to Simon Fox who had been found not guilty and David Hancock who had been found guilty. The jurors discussed the verdicts with Simon Fox and Hancock.

[23]It is not necessary to set out any further what transpired as no reliance was placed on the precise detail of what had happened in the appeal. However, the importance of this event was that it led Ms Phelps, Hancock’s partner, who was present, to inform Mr Bridge, Hancock’s counsel, by e-mail of the conversation and of the conversation between juror 12 and Murray on the previous evening, 14 January 2010, as juror 12 told Simon Fox, Hancock and Ms Phelps of that on 15 January 2010.

[24]On 22 January 2010 when Mr Hale and Mr Anthony Wyatt were present for the sentencing of Murray and Hewgill, Mr Bridge informed them of what he had been informed by Ms Phelps. Mr Hale and Mr Wyatt ascertained that CCTV recordings were available.

[25]Grounds of appeal relying on what had happened on 14 January 2010 and on prior occasions were then put forward by Hewgill; the description of what had happened on 14 January 2010 was as follows:

“On this final occasion an intoxicated Gloria Murray visited the establishment after her conviction but before [Hewgill’s] conviction for conspiracy to supply heroin, a count upon which no verdict was likely and in respect of which [Hewgill] received his longer sentence – and sat with the jury, informing them over the course of the evening that [Hewgill] was – amongst other things – “a drug dealer” and “behind everything”.”

Subsequent to the grounds being filed, the CCTV tapes were obtained.

[26]Before setting out our conclusions resulting from the findings, it is necessary to set out our findings on other contact between the defendants at the trial and the jurors. (5).

(a) The general contact

[27]As we have mentioned, it became apparent to the lawyers for the defendants in the trial after the verdicts had been obtained that there had been not only contact on 14 January 2010, to which we have referred in detail, but contact between some of the jurors and other defendants earlier in the trial. We therefore asked the CCRC to investigate these matters as well. The CCRC concluded that:

“There was repeated and ongoing contact between the bailed defendants and a number of jurors in The Crown. This contact has been described as the passing of pleasantries during lunchtime adjournments. These contacts appear to be more of a mutual recognition than anything else and seem not in general to have been initiated by one party rather than the other.”

The evidence plainly supports this conclusion. The answers given in the interviews conducted by the CCRC show that remarks were pleasantries such as “Hello” when they passed by each other in the pub or were waiting at the bar to be served at lunchtime.

(b) Contact on 4 December 2009

[28]None of these contacts were reported to the Recorder save on one occasion. At 4.03 p.m. on 4 December 2009, counsel for Simon Fox reported there had been a short conversation which had taken place between Simon Fox and a member of the jury. It appears from the court log that the judge was told that the conversation had occurred, as it was the defendant’s duty to report it but counsel did not feel that it was a cause for concern. The Recorder expressed his gratitude for the report but said there was nothing to add. It is unfortunate that this did not serve as a warning to the members of the jury to report any contact with the defendants.

(c) The statement to Simon Fox that he would be all right

[29]However, there was one occasion on which there was more than an exchange of pleasantries. In the e-mail sent on 17 January 2010 to Hancock’s counsel to which we have referred at paragraph 23 above, Ms Phelps stated that she was also aware that on 23 December 2009, Simon Fox and Hancock were approached in The Crown by a juror who put his hand on Simon Fox’s hand and stated, “Do not worry mate, you are going to be all right.” This account was supported by a statement by Simon Fox who identified the juror as juror 5.

[30]In the course of their investigation, the CCRC examined this incident. Juror 5 accepted that he had made the specific remark attributed to him by Ms Phelps; he had said to Simon Fox in The Crown words to the effect that he should not worry, he would be all right. Other jurors indicated that they may have been present or otherwise heard of this conversation.

[31]It is clear the remark could not have been made on 23 December 2009, as suggested, as the trial was adjourned between 17 December 2009 and 4 January 2010. Juror 5 was unable to remember when the conversation took place but indicated it was near to the date of the summing-up; he thought it was on the day of a “yes/no” verdict. The CCRC concluded that this suggested the conversation took place in January 2010.

[32]We find that the conversation could not have taken place once the jurors had retired to consider their verdict. As it cannot have taken place on 23 December 2009 and as juror 5 seems candid in his statement, we find that what was said must have taken place during the summing-up which took place over the period 8-12 January 2010. THE EFFECT OF THE CONVERSATION ON 14 JANUARY 2010 (1). The general principle

[33]The general principles were stated by this court in R v Thompson

[2010] EWCA Crim 1623

[2011] 1 WLR 200

. The judgment of the court given by the Lord Chief Justice, Lord Judge, set out the general rule that no investigation or enquiry into deliberations was admissible subject to two narrow exceptions:

“4. .... The first arises if it emerges that there may have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence; examples include a decision arrived at by the casting of lots or the toss of a coin, or the well-known case of the use, or rather misuse, of an Ouija board. If there are serious grounds for believing that such a repudiation may have taken place, this court will inquire into it, and may hear, de bene esse, evidence, including the evidence of jurors themselves, in order to decide whether it has happened. If it has, the verdict will inevitably be unsafe, and any resulting conviction will be quashed. 5. The second exception arises in cases where extraneous material has been introduced into the jury deliberations. The verdict must be reached, according to the jury oath, in accordance with the evidence. For this purpose each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock in trade of the jury process, and the combination of the experience of a randomly selected group of twelve individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However, the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples are provided by earlier decisions of this court. They include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years, information derived by one or more jurors from the internet. All this is familiar territory, and no citation of authority is needed. Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts. If extraneous material has been introduced into the decision making process, the conviction may be quashed.”

[34]It was submitted that the conversation between two of the jurors and Murray on 14 January 2010 and the subsequent dissemination of that conversation to at least three members of the jury on the following day had been a complete repudiation of the oath taken by the jurors to try the case according to the evidence.

[35]The Crown accepted that the conversation should not have taken place and Murray had introduced extraneous material, but contended that this court should determine whether the conversations had had a material effect upon the decision actually reached by the jury. It was submitted, therefore, that members of the jury should be asked questions as to whether what they had been told directly or indirectly by Murray had actually affected their decision.

[36]We cannot accept that submission. It seems to us that in this case it is clear that Murray, one of the defendants, gave to the jury material information about the sole defendant whose verdict remained to be considered; none of those jurors reported the matter to the judge. If it had been reported to the judge, the judge would have had to consider whether a fair minded, independent and informed observer would conclude that the jury could nonetheless determine the verdict on count 4 without taking into account, even subconsciously, what they had been told by Murray, applying the well known test formulated in Re Medicaments and Related Classes of Goods (No 2)

[2001] 1 WLR 700

and Magill v Porter

[2002] 2 AC 357

. It is just possible the judge might, as in R v Morrison and another

[2009] 1 All ER (D) 193

, have asked the jury whether they were able to reach a verdict on the evidence.

[37]However, the jury did not report what had happened. It is impossible to see how it could be said that an informed observer could conclude that the jurors had returned their verdict without in any way taking into account what they had been told by Murray. The fact that they had not told the judge makes it impossible to conclude objectively that they had reached their verdict in an impartial manner. It must therefore follow that, subject to consideration of the submission that Hewgill had instigated Murray to make the approach to the jurors and engage them in conversation, the verdict on count 4 must be set aside. (2). Did Hewgill instigate the approach to the jury?

[38]Mr Spencer QC on behalf of the Crown submitted that Hewgill had instigated the approach to the jury. He relied on the following matters: i) Mr Garside QC’s observation made in his statement in response to Hewgill’s criticisms of him:

“In retrospect I suspect that Mr Hewgill knew that he was very likely to be convicted and manipulated the situation in the hope of giving himself some advantage later, either during the trial by getting the jury discharged, or on appeal.”

That was supported by the observations of the trial judge on 2 December 2009 (when he ruled that the jury should not be discharged as set out in paragraph 15 above) to the effect that the disagreement with Hewgill was not of Mr Garside QC’s making. The Crown also relied on the statement of both Mr Guy Wyatt and Mr Garside QC about Hewgill’s relationship with counsel which was put in terms that he was deliberately manipulating that relationship (as for example in relation to the service of the defence statement) to try and gain an advantage or disrupt the trial. The Crown also relied on Mr Garside QC’s statement in relation to one of the other grounds of appeal (see paragraph 53 below) that it was contended by Hewgill that Mr Garside QC had not followed his instructions in attacking Ruen Bennett. Finally the Crown relied on the application made (which forms the ground of appeal which we consider at paragraphs 47 and 48 below) that he had insufficient time to view the covert surveillance evidence – an allegation that was manifestly untrue. ii) The fact that Hewgill had written down the names of the jurors. It is clear that the jury originally empanelled to try the defendants had to be discharged because one juror had noticed that Hewgill had been writing down the names of jurors and had become worried. That worry had been expressed to other jurors and the whole jury had to be discharged. iii) Juror 9 had informed the CCRC that after the trial a relative of his with the same name had been contacted by Hewgill or someone using his account via Facebook. A message had been placed, “found you”; this had caused the juror some concern. iv) From these matters it could be inferred that the long-term plan of Hewgill was to try and subvert the jury or abort the trial. v) By 14 January 2010 all that had come to nothing. vi) The relations between Murray and Hewgill were such that they acted as a team. The evidence in relation to Hewgill and Murray was to the effect that they had dealt in the past in drugs, that they were very good friends, that he confided in her a variety of matters and that he borrowed money from her; not only did meetings take place between Hewgill and Murray during the course of the conspiracy but there was significant telephone contact between them. The schedule of telephone contacts showed a large number of conversations; for example, on 15 July 2008 there had been 13 separate contacts on the same day totalling over 45 minutes and on 5 August 2008 20 separate calls on the same day totalling over 55 minutes. vii) By 14 January 2010 Murray had nothing to lose, but Hewgill did. She did not have to go to the pub. She must have known that some of the jury would be there. viii) It is plain she approached the jury and had done so deliberately. ix) The account which was set out initially by Hewgill which we have set out at paragraph 25 above can only have come from Murray.

[39]The submission made by Mr Lithman QC on behalf of Hewgill and by Mr Du Feu on behalf of Murray was that there was no evidence on which this court could possibly find Hewgill had instigated the contact between Murray and the jurors. The submissions advanced by Mr Du Feu were advanced after we had allowed time for him to speak to Murray but were made very properly by him on the basis of challenging the Crown’s contention and not putting forward any account by Murray, as he did not call her to give evidence. Apart from questioning the various grounds relied on by the Crown, the most powerful submissions were that there could have been no instigation by Hewgill as no-one would have expected Murray to have been given bail and there had been no time for them to collude between the return of the verdict and Murray being released. The accounts of the jurors did not show that she had set about it with a deliberate script and they had been happy to talk to her.

[40]There were proper grounds for the Crown to advance the contention that Hewgill instigated the contact, particularly in the light of our conclusions which we set out at paragraph 54 below in relation to the way in which Mr Garside QC came to leave the case. We cannot on the evidence before us be sure that Hewgill did so. In the result, therefore, this submission must fail and the verdict on count 4 must be set aside.

OTHER CONTACTS AND THE VERDICTS ON THE OTHER COUNTS

[41]As we have set out above, Hancock, Hewgill and Murray submitted that the verdicts of guilty returned on 14 January 2010 should be set aside because there had been a repudiation by the jurors of their oath through their repeated contact with the jurors and the conversation with Simon Fox.

[42]In our judgement the general contacts, which the CCRC summarised as we have set out at paragraph 27 and 28 above, should, as had happened on 4 December 2009, have been reported to the judge. However, there is nothing in those informal exchanges of pleasantries that could in any way amount to a violation of the jurors’ oath or the introduction of extraneous evidence or in any way affect the safety of the convictions.

[43]Hewgill also submitted that when the first jury was discharged, the Recorder had not waited until there was a new intake of jurors so that those who had been on the first jury did not have the opportunity to speak to those who were empanelled on the second jury drawn from the same intake as the first. There may therefore have been inappropriate contact between the first and second jurors. There is no evidence whatsoever to suggest such contact. It cannot form any ground of appeal,

[44]The remark to juror 5, in the presence of others, to Simon Fox that he need not worry and that he would be all right was plainly a remark a juror should not have made. It is also plain that it should have been reported to the judge. However, it does not seem to us that we can infer from that incident that there might be other matters where the jurors had acted in a way that was contrary to their oath. This was not an occasion on which extraneous material had been put before them, nor was there any prejudice to Simon Fox (as he was acquitted) or to any other of the defendants.

[45]In the result, therefore, we do not consider this prior contact, wrong though it was, can in any way affect the safety of the conviction. Although we grant leave to appeal on this point, we dismiss the appeal.

HEWGILL’S OTHER GROUNDS OF APPEAL

[46]Hewgill sought leave to appeal on a number of other grounds. We have carefully considered these, but in the result refuse leave to appeal. They are all points which, on analysis, give no arguable ground of appeal either singly or in totality or in any way affect the safety of the conviction. We will accordingly deal with them briefly. (1). Time to consider the recordings of the conversations with Scott

[47]It was submitted that Hewgill did not have sufficient time prior to the trial to consider and give proper instructions upon the recordings of the conversations with the undercover officer, Scott. As the evidence was central to the case against him, he ought to have been given adequate time. A complaint is also made against Mr Garside QC for failing to request a prolonged adjournment at a hearing on 21 September 2009 to consider the recordings.

[48]Whatever the position may have been prior to the commencement of the trial, the matter was considered by the Recorder on 19 October 2009. The Recorder carefully examined the history of the matter and considered what time was necessary. His analysis set out in the ruling cannot be faulted. It is clear from the viewing schedule that time was thereafter afforded to Hewgill; on some occasions Hewgill took advantage of time to see the material; on others he did not. We are quite satisfied that he had ample opportunity of viewing the recordings prior to the cross-examination of Scott. There is no merit in this ground of appeal. (2). Failure to ask questions of Scott

[49]As we have set out at paragraph 12 above, a dispute arose between Hewgill and Mr Garside QC as to whether Mr Garside QC had properly questioned Scott.

[50]We cannot accept that criticism. Nonetheless, even if there was merit in that criticism, the matter was ventilated before the Recorder. He permitted Hewgill to submit a long list of questions; the judge then carefully considered which could properly be asked in the light of the questions already asked and the evidence that the officer could give. He identified four questions that could be asked and gave Hewgill the opportunity of withdrawing Mr Garside’s instructions and asking the questions when representing himself. We are quite satisfied that the Recorder considered the matter in great detail and reached the correct decision. He correctly identified the four questions that could be asked and gave Hewgill the opportunity to represent himself so that he could ask them. There is no merit whatsoever in this ground of appeal. (3). Alleged failure to run a cut-throat defence against Bennett

[51]In the course of his closing address, Bennett’s counsel relied upon the fact that the prosecution were drawing a distinction between Hewgill and Bennett. He went on to make the point that Bennett had been used by the undercover officer, Scott, to entrap Hewgill.

[52]It was said by Hewgill that he had told Mr Garside QC that he was entrapped by Scott at the instigation of Bennett and that Bennett had lied to Scott about the supply of drugs to “Bigga George” (George Mclean) and “Prento” (Donovan Clarke); he should therefore have distanced his case from that of Bennett. In addition Mr Garside QC failed to ask the police to interview George Mclean who was on remand at HMP Birmingham, despite his instructions that he should do so. Mr Garside QC made clear he had never been instructed that Hewgill was entrapped by Scott at the instigation of Bennett; he considered that it would have been absurd to have been given such instructions. He had been given no instructions to run a cut-throat defence. Mr Guy Wyatt’s account was that they had been given instructions not to cast any of the co-defendants in a bad light.

[53]Nor, when the representation changed, were any such instructions given to Mr Lithman QC or Mr Anthony Wyatt. Mr Lithman QC submitted to us that the complexity of the relationship between the alleged conspirators was not apparent to him until counsel for Hancock made his closing speech. We, of course, accept what we were told by Mr Lithman QC. However it seems to us perfectly clear, from the written response dated 27 April 2011 prepared by Hewgill himself for this appeal which was handed to us, and from the way in which it can be seen he gave instructions during the trial, Hewgill would plainly have given instructions to Mr Garside QC or pointed the position out in clear terms to Mr Lithman QC, had this been a defence he wished to run. There is again no merit whatsoever in this point. (4). The withdrawal of Mr Garside QC and Mr Guy Wyatt

[54]It was clear from the grounds of the appeal and the very detailed response to Mr Garside QC’s statement dated 27 April 2011, that relations between Hewgill and Mr Garside were never good and deteriorated during the trial; an account was given by Hewgill in his response of 27 April 2011 of numerous instances of disagreement and of complaint.

[55]We have sufficiently summarised the events that led to the withdrawal of Mr Garside QC and Mr Guy Wyatt. We are sure that Hewgill set about achieving the position that Mr Garside would have to withdraw so that he could seek a re-trial. There is no merit in this ground of appeal. (5). The failure to serve a defence case statement

[56]As no defence statement had been served, the Recorder, as he was entitled, made an adverse comment.

[57]We have carefully considered the differing accounts submitted to us by Hewgill and his counsel; Hewgill’s account is detailed in his response sent on 6 May 2011. The fact that there was no defence statement was attributable to Hewgill himself. There is no merit in this point. (6). The application to discharge the jury after the withdrawal of Mr Garside QC and Mr Guy Wyatt

[58]We have already summarised at paragraphs 14 and 15 what happened. In our judgement this was a case where, given the circumstances which Hewgill had brought about, the course taken by the judge was one that was well within that discretion open to a trial judge. Hewgill could have continued to be represented by Mr Garside QC; had he withdrawn the allegation which he himself had manufactured in an attempt to de-rail the trial. As he chose not to, his decision could not have been allowed to frustrate the trial. Nor can Hewgill have any basis for complaining that Mr Lithman QC did not have sufficient time to prepare the case. This ground, again, is wholly without merit. (7). Submission of no case to answer in relation to the cannabis conspiracy

[59]The conspiracy to cultivate cannabis was never put into effect; it formed the subject of conversations to set up a production unit at a remote farm in Yorkshire and a visit to that farm. It was for the jury to decide whether there was an agreement to cultivate cannabis or whether what was discussed between Scott, Bennett and Hewgill was mere “idle chat” or “an enterprise ready to go”. The judge’s clear and careful written ruling was plainly correct that there was a case to answer. (8). Conclusion on the other grounds

[60]In the result, therefore, each of these additional grounds is wholly without merit and none affects the safety of the conviction. We refuse leave to appeal. HANCOCK: OTHER GROUNDS (1). Exclusion of evidence of Hewgill’s lack of trust in Hancock

[61]During the course of his evidence Scott spoke of a discussion at a restaurant on 22 May 2008 during which Hewgill had spoken about a “significant event”. Initially, Scott said that Bennett and Hancock were also present, but then corrected himself saying (rightly) that although Hancock had been in the restaurant earlier, he was not present at that stage. The judge permitted a short voir dire to discover what the “significant event” was. It transpired to be a proposed kidnapping about which those representing Hancock had been given disclosure before trial – for example by way of a schedule setting out relevant events, including the conversation on 22 May 2008. It also emerged that Scott had the impression that Hewgill did not want Hancock to hear what was being discussed.

[62]Against that background an application was made on Hancock’s behalf to cross-examine Scott to bring out the fact that the “significant event” was a proposed kidnapping; that it involved Hewgill but not Hancock; and that Hewgill did not want Hancock involved in the conversation. It was submitted that this evidence demonstrated that Hewgill had a significant lack of trust in Hancock in relation to criminal activity, which in turn undermined the prosecution case that, at that time, Hancock was a trusted confidante of, and fellow conspirator with, Hewgill in relation to drugs. The decision of the House of Lords in Randall

[2004] 1 Cr.App.R. 26

was cited - to the effect that a defendant was entitled to disprove his own guilt and might do so by tendering evidence of propensity of a co-accused and that, if relevant, there was no discretion to exclude such evidence. The application was opposed by both Hewgill and the prosecution.

[63]In refusing the application the judge ruled that in order to succeed Hancock had to bring his application within s.101(1)(e) of the Criminal Justice Act 2003 (“the 2003 Act”), which requires that the relevant evidence has substantial probative value in relation to an important matter in issue between a defendant and a co-defendant. The judge noted that it was Hancock’s case that he had never had anything to do with drugs, and that he was just a friend of Hewgill, and that there was no issue between Hancock and Hewgill in relation to that. He concluded that it would be grossly prejudicial to Hewgill if the evidence in relation to kidnapping was admitted, whereas the prosecution did not suggest that Hancock had anything to do with the “significant event”, and that on the evidence that had already been given he could fairly make the point that Hewgill did not trust him.

[64]When Hewgill gave evidence he was cross-examined at some length by the prosecution as to his relationship with Hancock, both generally and in relation to drugs. At the climax of the cross-examination it was suggested to Hewgill that Hancock was his trusted confidante in all matters. A renewed application was therefore made on Hancock’s behalf to adduce the evidence that the relevant conversation on 22 May 2008 had been about kidnapping, and that it appeared that Hewgill had not wanted Hancock to be there when it was discussed. The application was again opposed by Hewgill and the prosecution. The judge commented that the prosecution’s suggestion should have been that Hancock was Hewgill’s trusted confidante in relation to drugs, rather than all matters. However, he concluded that Hewgill had not given any evidence against Hancock, rather the reverse, and that any false impression engendered by the final question had been so fleeting that it did not require correction. Therefore he ruled against the application.

[65]On Hancock’s behalf Mr Barker QC submitted, citing Apabhai

[2011] EWCA Crim 917

and Randall (above), that the judge had fallen into error in these rulings by failing to recognise that: i) This was bad character evidence which, in the terms of s.98(a) of the 2003 Act, had to do with the alleged facts of the offences with which the defendant was charged, and was thus not subject to s.101. ii) Therefore the ordinary common law rules of admissibility applied. iii) The evidence was relevant and so admissible, and there was no discretion to exclude it.

[66]Mr Spencer QC argued that the Crown’s case had been that Hancock was trusted to the extent that was required for him to fulfil his role in delivering consignments of drugs and (on occasions) drug-related money, and (from time to time) watching over or safeguarding consignments of drugs. It had not been the Crown’s case that Hewgill trusted Hancock in everything. Indeed, the evidence clearly established that as time went on Hewgill came to have grave reservations about Hancock’s reliability. The question of the degree of trust had been elevated by those representing Hancock beyond any sensible level. That said, Mr Spencer QC accepted that the critical question in relation to the evidence was relevance, and he submitted that the evidence sought to be admitted was of only minimal, if any, probative value.

[67]It is however clear, for example, from what the judge said in connection with his second ruling, that the issue of trust was of some relevance. The events of which Scott was capable of speaking arose during the period when it was alleged that Hancock was engaged in drugs conspiracies with Hewgill. Thus it seems to us, particularly in view of the decision in Mullings

[2011] 2 Cr.App.R. 2

, that the evidence had to do with the facts of the offences with which Hancock was charged, that s.98(a) of the 2003 Act was therefore engaged, that the evidence was thus admissible and that there was no discretion to exclude. Accordingly we conclude that both rulings were in error and therefore give leave on this ground.

[68]However, against the background of the evidence overall, including the fact that the jury knew that Hewgill had chosen to discuss a “significant event” absent Hancock, and the evidence of Hewgill’s subsequent grave reservations about Hancock, we have no hesitation in concluding that the failure to admit this aspect of Scott’s evidence does not result in Hancock’s convictions being unsafe. Thus the appeal on this ground fails. (2). Failure to order disclosure of RIPA authorities and the role of Bennett

[69]We can deal with this speculative ground relatively shortly. Mr Barker QC submitted that there were good grounds for concluding that Bennett either was, or had acted in the de facto role of, a participating informant. He pointed out that over a period of four years Scott and Bennett had acted together, with the latter being involved in serious crimes and receiving accommodation, money and gifts in return. He suggested that it appeared to be the case that Bennett had set up Hewgill to supply to Scott, and that it was the prosecution case that Hancock was involved via Hewgill. There was thus a proper basis for concluding that, whether directly or indirectly, Bennett was being directed by the police (whether legally or illegally), and/or otherwise allowed to continue to be involved in inciting serious crimes when he should not have been. Accordingly disclosure of authorities issued under the Regulation of Investigatory Powers Act 2000 (in relation to Scott and/or Bennett) and other relevant material would have been likely to provide the defence with valuable ammunition with which to seek a stay or the exclusion of evidence.

[70]Mr Spencer QC submitted that these submissions were utterly misconceived. He pointed out that the claim that Bennett was a participating informant was first raised in Hancock’s Defence Statement, and that the issue had been addressed by the Crown in discharging its disclosure duties, at a PII hearing, and during the course of argument and rulings, which could not be faulted, in relation to two Defence applications for disclosure and a Defence application for a stay. Further, as Mr Spencer QC pointed out, Bennett himself did not apparently consider himself as having been utilised as a de facto informant in the way alleged, and on 18 January 2011 the Investigatory Powers Tribunal had rejected Hancock’s complaint in connection with these matters.

[71]We agree that this ground of appeal is without merit and refuse leave to appeal in relation to it.

MURRAY: OTHER GROUND OF APPEAL

[72]It was submitted on behalf of Murray that the judge had been wrong in the ruling to which we have referred at paragraph 10 in which he ruled that evidence was admissible against the conspirators of passages from the covertly recorded conversations between Scott and others. Various reasons were put forward, including the contention that they were not in furtherance of the conspiracy, they did not show the enterprise in operation and the judge should have had regard to the patently unreliable source of the fact that what was said came from Hewgill.

[73]In our judgement, the evidence was admissible. The passages relied on were all in furtherance of the conspiracy. It was well within the discretion open to a trial judge to have considered that Hewgill was in respect of these matters sufficiently reliable that the matter should be left to the jury.

[74]This ground of appeal is without merit. We refuse leave to appeal

HANCOCK: APPEAL AGAINST SENTENCE

[75]Hancock is now aged 38. He was treated as being of previous good character. In passing sentence the learned Judge observed that Hewgill (who was an old friend of Hancock) had run a high level professional operation supplying large quantities of both amphetamine and cannabis to people in Birmingham, Hemel Hempstead and elsewhere. After suffering an industrial accident and with a drink problem Hancock had needed money, and so had agreed to take part in Hewgill’s operation. Whilst his involvement would not have happened without Hewgill, he had been a willing participant (albeit that his reliability was far from perfect) without whom the conspiracy would not have been able to function as it did. Based on the evidence given during the trial, the judge concluded that Hancock had been involved on a regular basis in collecting and delivering both drugs and drugs money from at least May 2008 to August 2008, as well as guarding drugs when necessary. The quantity of amphetamine that he had been involved in was vastly beyond the 58 kilograms supplied to Scott, and it was fanciful to suggest that his involvement in the supply of cannabis was limited to supply to Bennett in May 2008. Accordingly, taking into account his age, his previous good character, the circumstances of his original involvement, the fact that he was subservient to Hewgill and the need to respect that principle of totality, the learned judge imposed sentences of 8 years imprisonment in relation to the conspiracy to supply amphetamine (Count 5) and 6 years imprisonment concurrent in relation to the conspiracy to the conspiracy to supply cannabis (Count 6).

[76]Mr Barker QC submitted that the overall sentence of 8 years imprisonment was manifestly excessive in that it did not take sufficient account of Hancock’s previous good character; the fact that but for his accident and drink problem Hancock would probably not have become involved; the fact that his involvement was through Hewgill who was a long term friend and to whom he was subordinate; the fact that (as the Crown had argued before us) Hancock became less and less reliable as time went on; and the fact that it was not easy to glean precisely how many occasions, and in relation to what quantities of which drugs, he was involved in. Mr Barker QC drew our attention to Wijs

[1998] 2 Cr.App.R. 436

(which gives guidance in relation to sentencing in amphetamine cases) and submitted that, in pure weight terms, the amount of amphetamine provably supplied was at the upper end of the 2.5-10 kilogram bracket thereby attracting a starting point of no more than 7 years imprisonment before taking the mitigating factors into account. He further submitted that the judge was wrong to conclude that Hancock had been prepared to collect a sum of money on Hewgill’s behalf, and had failed to give sufficient weight to Hancock’s acquittals on Counts 1 & 2 – the reality was that there were only one or two occasions when it could be inferred that Hancock had been involved in supply. Finally, Mr Barker QC submitted that the sentence imposed on Hancock was disproportionately high when compared to the sentences imposed on his co-defendants.

[77]The learned judge presided over the trial. Based on the evidence that he had heard, he reached clear conclusions as to Hancock’s role and explained them in some detail. In our view these were conclusions that he was entitled to reach, and they were not arguably subject to the various deficiencies alleged. On the basis of the judge’s conclusions, and bearing in mind that the overall sentence had to reflect participation in two conspiracies, it seems to us that it cannot be said that the sentence imposed was manifestly excessive – whether in itself or when compared to the sentences passed on the co-defendants. Leave to appeal is refused.

MURRAY: APPEAL AGAINST SENTENCE

[78]Murray was not present at the sentencing hearing. She had absconded. The judge concluded that she was deliberately absent. No appeal is made against that finding.

[79]At the time of sentence Murray was 50. She is obviously an intelligent and forceful woman, capable of running a small business or taking a responsible position in a large organisation. However, instead of devoting herself to such a career she had devoted herself to the business of supplying significant quantities of controlled drugs. She had received sentences in 1987 for possession of class B and class A drugs, being then given a sentence of three years imprisonment; the Recorder commented this was a merciful sentence, we agree. She had admitted to the Recorder that in the 1990s she had resumed drug trafficking and again in 2008 she had resumed drug dealing. She had admitted to the Recorder that she was a wholesaler of both amphetamine and cannabis. She admitted that on at least one occasion she had bought 20kg of amphetamine for onward supply. She said that on at least one occasion she had bought in swift succession two parcels of 10kg of cannabis and had bought other substantial quantities as well.

[80]The judge was right to find that it was plain that on the jury’s verdict the jury accepted that Murray was a regular customer of Hewgill in the period of the conspiracy, taking 5-50 kilos a week of amphetamine, 5-25 kilos of skunk (though not necessarily per week) and other drugs on other occasions. The judge concluded therefore that he should sentence Murray for being involved in the substantial wholesale of amphetamine and cannabis in the context of her agreement to obtain drugs from Hewgill for onward supply; the agreement was against the background of other drug dealing, not just in 2008 but previously in 1999 with Hewgill and much earlier in other circumstances.

[81]The judge made clear that she had no real mitigation and that he had to pass a very substantial sentence. He concluded that she was more significantly involved that Hancock. He therefore passed a sentence of 11 years imprisonment for the supply of amphetamine and a concurrent sentence of eight years imprisonment for the supply of cannabis.

[82]It was submitted to us that the judge had been wrong to reach the conclusion he did about the scale of her dealings. It was submitted that her lifestyle was not consistent with her role. It was confirmed to us by the Crown that there were no allegations of hidden wealth. In the circumstances it was submitted that a sentence of 11 years left no room for those engaged in significantly greater drug dealing.

[83]We cannot accept these submissions. The judge had ample opportunity during the course of the trial to assess the scale of her drug dealing. We accept that the sentence that had been imposed on her had had an effect on her daughter. We also accept that she is using the time that she is spending in prison constructively. Although we have great sympathy for the plight that her daughter has been placed in, that is a matter about which she should have thought before engaging in drug dealing on this massive scale. In our judgement, there is no merit in any criticism of the sentence passed by the Recorder. Leave to appeal is refused.

SENTENCE FOR HEWGILL

[84]Hewgill makes no application for leave to appeal against sentence. However we must consider our powers under s.4 of the Criminal Appeal Act 1968 which gives the court power where a conviction is quashed on one count in the indictment in circumstances applicable in this case to increase the sentence on other counts, provided the total is not greater than the sentence imposed by the Recorder. We invited submissions on this issue.

[85]It is clear from the sentencing remarks of the judge that he quite properly reduced the terms he would otherwise have passed on the counts, apart from count 4, had he not had to reduce the sentences to allow for totality.

[86]In our judgement, this is a case where, in the light of our quashing of the conviction on count 4, it is necessary and in the interests of justice to increase the sentences on the other counts. Our conclusions are as follows:(i) Count 1: conspiracy to import amphetamine. The judge indicated he would have passed a sentence on that count of 12 years imprisonment, though he reduced it to 11 years to reflect totality. We therefore increase that sentence to one of 12 years.

(ii) Count 3: conspiracy to import cannabis. We consider that the sentence of 10 years should be increased to 11 years, concurrent with count 1.

(iii) Count 5: conspiracy to supply amphetamine and Count 6: conspiracy to supply cannabis. We consider that the sentences should remain as they were, namely 11 and 10 years respectively.

(iv) In respect of count 7, the conspiracy to cultivate cannabis, we consider that the sentence of five years passed by the judge is correct, but as it was different to importation and supply, a consecutive sentence should be passed. We therefore make that sentence consecutive to the other sentences in place of the concurrent sentence passed by the judge.

[87]In the result, therefore, the total sentence is one of 17 years imprisonment. Acting pursuant to our powers under s.4, we substitute those sentences.