Marray, R. v [2014] EWCA Crim 2910

[2014] EWCA Crim 2910Case No 201304143/C3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 16th December 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COX DBE
Between
R E G I N ACrownv
Between
NICHOLAS MARRAY
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr N Power appeared for AppellantMr R Davies appeared for Crown
J U D G M E N T

LORD JUSTICE ELIAS:

[1]On 18th July 2013 in the Crown Court at Birmingham before His Honour Judge Inman, the appellant was convicted by a majority of 10 to 2 of doing an act intended to pervert the course of justice. He and his co-accused, Conrad Jones, were acquitted on count 1, also a count of conspiracy to pervert the course of justice. There was a third count originally, namely conspiracy to defraud, which again involved both Jones and the appellant but on which the Crown offered no evidence. The appellant was sentenced to 2 years' imprisonment on the count on which he was found guilty. He now appeals against conviction by leave of the single judge who granted leave limited to two grounds only. There has been no application to renew the grounds which the judge rejected. It is fair to say that the count on which he was acquitted was the more serious of the two counts considered by the jury.[2]The background to these two charges was that the defendant was a solicitor who practised in the area of criminal law. At the time of his conviction he was 50 years old and he had been in practice for many years.[3]Authority had been given to police officers to place a probe in his car for a lengthy period, from 11th January 2012 to 12th September 2012. He was also subject to surveillance during that period.[4]The grounds of appeal related to the admissibility of some of the transcripts of the conversations which were obtained from the probe and were adduced in evidence by the Crown. There are five transcripts in particular which are the subject of challenge, either on the basis that the evidence ought not to have been admitted at all or that if it was to be admitted, there was no proper direction to the jury as to how they should deal with the particular material. In particular it was said it was not made plain by the judge in summing-up in what way some of the material adduced would be relevant to count 2.[5]In order to understand whether some of the transcripts were properly admitted, it is necessary to say something about the circumstances giving rise to count 1. On 23rd August 2007 Conrad Jones had been convicted of perverting the course of justice. It was said that he had by threats and inducement persuaded a witness in a murder trial to absent herself. He was sentenced to 12 years' imprisonment.[6]It was alleged by the prosecution that Mr Jones and the appellant had agreed upon a course of conduct designed to pay and/or to intimidate witnesses in order that they would provide helpful evidence to support Mr Jones' proposed appeal against his 2007 conviction. As the judge noted, whether or not that original conviction was properly obtained was irrelevant to this charge. In fact there was subsequently a successful appeal against the conviction on the basis there had been what the Court of Appeal described as "a lamentable failure to make a proper disclosure at the first trial". Nothing turns on that in this appeal.[7]The background to count 2 was that the appellant was the solicitor for Carl Stewart, also none as Bobby Stewart. He was wanted by the police in relation to a drugs conspiracy. There were co-ordinated arrests with respect to this conspiracy on 26th July 2012. Stewart was not arrested because the police mistakenly believed that Mr Stewart was still then a serving prisoner. In fact he had been released on tag a few days earlier. It is accepted that Mr Stewart visited the appellant in his office shortly after his release.[8]On 31st January 2012 he went to Heathrow Airport where he booked and paid for a flight to Thailand. He was arrested when the plane was on the runway about to take off. The prosecution alleged that the appellant had warned Stewart that he going to be arrested and had advised him to flee the jurisdiction, suggesting a route. There was no direct evidence of what the appellant had in fact said to Mr Stewart and Stewart was not a witness at the trial. The basis of the prosecution case was that there was a conversation conducted between the appellant and another client, Mr Ravenscroft, when the appellant recounted the following conversation which he alleged he had with Stewart: "I said to him why don't you go up to Scotland, jump the boat over from Stranraer and fly out from Dublin or something like that".[9]The appellant admitted that he had made this comment to Mr Ravenscroft but denied that he had in fact said anything such thing to Mr Stewart. He was simply, as he put it, "bigging himself up" to Ravenscroft; in other words he was seeking to impress Ravenscroft. He pointed to the fact that the route he allegedly advised Stewart to take would not have been a sensible one, although the Crown disputed this, and that was relied upon as evidence that he would not have made the statement to Stewart as alleged.[10]The only question therefore for the jury in relation to this count was whether the appellant had in fact made up this alleged conversation with Stewart in order to impress Mr Ravenscroft, or whether the conversation had in fact taken place. It was accepted that if it had taken place it would constitute a perversion of the course of justice. The admission of the transcripts.[11]The prosecution applied to admit various transcripts on the grounds that either they were directly relevant to issues in the case or, alternatively, that in any event they constituted bad character and could be admitted pursuant to section 101 of the Criminal Justice Act 2003. The transcripts fell into a number of different categories. No objection was taken to some of the transcripts being admitted and the judge upheld certain objections with respect to others and would not allow those transcripts in. In some cases parts of transcripts were excluded.[12]As we have said, there were five transcripts which it is submitted should not have been admitted either in whole or part and in any event it is said the judge did not adequately sum up with respect to them. The transcript of 1st February 2012[13]We will take transcripts in turn. First, the one dated 1st February 2012. This was a transcript of the conversation with Mr Ravenscroft which gave rise to the charge in count 2. Plainly much of this transcript was relevant and admissible. It was indeed the centrepiece of the prosecution case. But there were passages in which Mr Ravenscroft apparently boasted of getting and using a Railcard to which he was not entitled, thereby avoiding paying fares. There were other comments concerning registering cars in a dishonest manner.[14]The appellant submits that these comments had no relevance at all to the charges he faced and should never have been admitted.[15]The prosecution submitted they were material because they demonstrated the nature of the relationship between the appellant and his client. It showed how the appellant and Mr Ravenscroft were comfortable in each other's company and therefore potentially cast light on whether the alleged conversation which the appellant said he had with Mr Stewart would in fact have occurred or not.[16]The judge accepted the submission of the Crown, whilst noting that it would be necessary to make it plain that the appellant was not to be criticised for whatever failings Mr Ravenscroft may have exhibited in that conversation. The judge did in fact make that point clear in his summing-up and there is no complaint about that.[17]In our judgment, there was nothing at all wrong with admitting this evidence, essentially for the reasons advanced by the Crown. It helped to help put the whole conversation in context including the comments which the appellant had allegedly said to Mr Stewart. Nor do we see anything unfairly prejudicial in the admission of this evidence.[18]As Mr Power QC, counsel for the appellant, submits, either this was entirely irrelevant, in which case it would not have influenced the jury and even if it was irrelevant we do not accept that it was prejudicial because it did not cast any adverse light on the character of the appellant as the judge made plain to jury. Alternatively, it was potentially of some probative relevance in which case it was properly admitted. The transcript of 10th February 2012.[19]This related to a conversation which was held with a third party, who it is accepted was a man called Mick Collins, who was at that time in Thailand. He was one of Mr Stewart's co-accused and was wanted by the police. Collins, in the course of this conversation, asked if the appellant reckoned "they'll get me at the airport". The appellant replied:
"You're probably circulated and they're probably in the process of trying to get an international arrest warrant"
. Then a little later the appellant said:
"Listen Mick, one thing I tell John is this. Right. They'll watch your bird and your family very, very closely. If they start sending money anywhere or anything like that they'll then arrest them for assisting an offender. Tell them to be very, very careful. Yeah because if there's anything like that it'll be off something. You know what I mean. Probably mate they're probably listening to the telephone calls she gets."
[20]The Crown submitted that this was material evidence because it demonstrated, or at least capable of demonstrating, that the appellant was advising another man how to break the law and avoid being detected. It showed that he was willing to go far beyond what was appropriate for a solicitor. The prosecution claimed this was directly relevant to count 2. The defence submitted that this related only to advice given by the appellant to one of his clients and it had no relevance to either count.[21]Mr Power submits that it was not in fact bad character evidence at all, because the judge was quite wrong to suggest, as he did in his ruling, that it demonstrated that he was willing to assist a client to break the law. There was no breach of the law in Mr Collins choosing to remain in Thailand. He was under no obligation to return to this country.[22]The judge admitted this evidence. He accepted that it was not direct evidence which related to any of the facts of this case therefore falling within the scope of section 98A of the Criminal Justice Act 2003. But nonetheless, it was bad character evidence. It was essentially admissible under section 100(1)(d) because it went to the propensity of the appellant to give advice to his clients which it was inappropriate for a solicitor to give.[23]It is also material to note that when the point was dealt with by the judge in the summing-up, although he had indicated in his ruling allowing the evidence to go in that it demonstrated some kind of breach of the law by the appellant, that is not how it was dealt with in the summing-up.[24]In our judgment, the judge was entitled to admit this evidence. We accept that it was potentially relevant in the way in which the Crown submitted. It was relevant to demonstrating the nature of the relationship which the appellant had with his clients and we think that potentially it was material not only to count 1 but also to count 2. Transcript of 4 July.[25]The third conversation relates to a transcript of 4th July 2012. It involved the defendant, Mr Jones, and the co-accused. There amongst other matters a discussion about a mortgage fraud. That originally gave rise to a count on the indictment but the prosecution did not pursue it whilst reserving the right to rely upon the conversations as evidence of bad character. The discussion ranged over a number of matters including the position of Mr Jones' son and how he might avoid restrictions placed on him by a court order; and about ways in which Mr Jones himself might avoid his curfew at the probation hostel where he was at the time living.[26]Again, the judge concluded that much of this conversation was directly relevant to the issues in the count 1. He also considered that because it went to the nature of the relationship between the appellant and his client, it lay at the heart of count 2. It was not strictly bad character evidence because it fell within the scope of section 98A. But the judge added that even if he was wrong about that, it should be admitted as bad character evidence because it was capable of demonstrating reprehensible conduct by the appellant. It showed that the appellant would assist the client in avoiding the consequences of compliance with a court order or at least was capable of establishing that fact.[27]The defendant submits that even if this evidence should be admitted at all, it was not relevant to count 2 and the judge should have made that clear.[28]We do not accept that submission. This was plainly a probative effect with respect to count 1 but, in our judgment, the evidence also had some probative effect in relation to count 2.[29]The appellant contends that the relationship between Jones and the appellant could not possibly be said to lie at the heart of count 2. That is plainly true but it seems to us that the nature of his relationship with those facing criminal charges was relevant when considering the likelihood of this defendant giving advice to Stewart as the Crown had alleged. In any event the question arises whether the judge did in fact advise the jury that they could take this evidence into account in relation to count 2, and we return to that issue. The transcript of 17th August 2012.[30]This was a very lengthy transcript running to some 53 pages. Again, it was a conversation between the appellant and Jones and concerned amongst other matters the location of a potential witness to Jones’ conviction appeal. The conversation was recorded when the appellant and Jones were leaving the Midlands in pursuit of a particular witness named Peel.[31]There is no doubt that some of this transcript was plainly directly relevant to the conspiracy count and that is not disputed. But it is said other parts of the transcript should not have been admitted, they were simply prejudicial without having any probative value at all. This included some discussion about the relationship that the appellant had with the Chief Constable of the Merseyside Police; a discussion of a drugs case involving Jones' son; and certain derogatory comments made of a racial nature with respect to certain groups of people. It is said that some of this material was potentially prejudicial and should not have been allowed in. For example the racial comments are said to fall into that category.[32]The judge dealt relatively briefly with this conversation in his ruling, saying it was obviously material to count 1. We agree with that. There does not at the time appear to have been any application to exclude the racial comments. We have looked at them and they are somewhat opaque. It would, we think, on reflection had been better had they not been in. They do not seem to have any very great relevance to either count 1 or count 2. But we do not think that they would have been at all relevant as far as the jury were concerned.[33]Mr Power, in fairness, does not put this at the central focus of his case. He simply says it is another aspect of the unsatisfactory nature of the judge’s ruling. It was unfortunate that this material was in even though there was no opposition to it and it cumulatively is part of the general picture which he says shows that this appellant did not have a trial conducted in accordance with the law. Transcript of 8 August[34]The fifth transcript is 28th August. This is a transcript taken in relation to a conversation by the appellant and Jones on another visit to the Midlands. Again, it is plain that much of this transcript, on any view, is admissible and goes directly to the nature of the relationship between the conspirators. There was a discussion about mortgage fraud and in the course of that conversation Jones is recorded as saying this:
"This mortgage fraud is a good thing for me, it's easy dough" and the appellant is alleged to have said: "
Dead easy meat mate, dead's easy" and he advised Jones as to who he would "need" in that gang.[35]The prosecution case was that it was material evidence because it showed again the way in which the appellant and Jones had this very easy relationship with each another. The contention was that the discussion of this mortgage fraud, even if it was not yet at a point where it could properly justify a separate charge, was reprehensible conduct which demonstrated how the appellant would overstep the mark with his criminal clients.[36]Again, the judge considered that this was potentially material; the jury could conclude that it was a conversation between two men bent on furthering a criminal enterprise. It was admissible under section 98, like the other transcripts involving conversations with Jones and it did not strictly fall into the bad character provisions at all. But again, he thought it would have been admissible as bad character evidence in the alternative. The judge conceded in the case of this transcriptthat certain matters should be excluded and they were excluded, but the rest of the material was put before the jury.[37]Again, we agree with the judge that this was admissible evidence. It is important in a case of this kind that the jury has a proper sense of the nature of the relationship between the appellant and his co-conspirator and the conversations were directly relevant to that matter. Too rigorous an exclusion of matters which are alleged to be of no direct significance could paint a distorted picture of that relationship. The judge was, in our view, entitled to take the view that the matters he allowed in were of no great prejudicial effect and had some probative value.[38]We agree with the judge that this was not a matter of bad character evidence, it was admissible under section 98 because of its direct connection with the matters raised and in particular count 1.[39]It follows that in our view the decision of the judge to admit these various transcripts was well within in his discretion. There is always a matter of judgment as to whether parts of a transcript should be excluded and whether their prejudicial affect will outweigh their probative value. But this court will not interfere merely because it might have struck the balance in a slightly different way; the judge must have exercised his discretion improperly or reached a conclusion which could be properly described as wrong. In our judgment this was a perfectly proper exercise of judgment and these transcripts were properly admitted and other transcripts, as we have said, which the judge did think were more prejudicial that probative were excluded.[40]We turn then to the alternative ground which is that the judge in any event did not make clear, and certainly not with sufficient precision, how the evidence which was adduced related to count 2 in particular. We were referred to a number of decisions in which the court has said that it is important that juries have a clear understanding of why bad character evidence has been admitted and what it goes to, and that it cannot be sufficient on its own to establish guilt.[41]So far as the summing is concerned, the appellant relies upon the principles enunciated in the well-known of R v Hanson [2005] 2 Cr App R 21, as further explained by Lord Phillips LCJ in R v Campbell [2007] 2 Cr App R(S) 28. It is well established that a judge should warn a jury clearly against placing undue reliance on previous convictions and that would apply to other evidence of bad character; that it should not be used to bolster a weak case; that the fact that bad character may show propensity does not mean the individual has committed the particular offence before the Court; and that whilst no rigid formula need be adopted, it is important the jury is told in simple language why the evidence may be relevant and in what way. However, it is also important to appreciate that once evidence has been properly adduced then it can be used in relation to whatever issue it is in fact probative.[42]The appellant submits that the summing-up here was defective. In particular, it is said that so far as the three transcripts involving Jones are concerned, they had no relevance to count 2 on which the appellant was convicted, they were only relevant to count 1 and the judge should have made that clear in the summing-up.[43]In our view, it is material to look at how the judge structured his summing-up. He in fact dealt with counts 1 and 2 separately. We will consider count 2 first. He dealt with count 2 from pages 18 to 26 of the summing-up and then he turned to deal with count 1. It was in the context of considering count 2, that is the count on which he was convicted, that the judge dealt with the transcripts of 1st February and the 10th February, that is the transcripts of Ravenscroft and Mick Collins. He does not in the context of that count refer to the other transcripts concerning Jones. Those are referred to when the judge deals with count 1.[44]In relation to the Ravenscroft transcripts, the judge explained, as we have said, that the purpose of providing information about Ravenscroft's other allegedly dubious conduct was to put in context the general conversation. He emphasised that admissions by Ravenscroft were not to be held against Mr Marray in any way at all. There was nothing wrong at all with the direction it seems to us in relation to that evidence.[45]In relation to the 10th February transcript

the judge said this in the summing-up:

"And finally, the other conversations of Mr Marray; you've heard telephone conversations between Mr Marray and a man on the 10th February who was said to be Mick Collins, another suspect in Operation Webber, who was in Thailand. The prosecution say that this conversation shows that Mr Marray was willing to give helpful advice to a suspected criminal to help him keep free of arrest. It demonstrates, they say, how Mr Marray was willing to act and that's how he acted in relation to Carl Stewart. Mr Marray says that he was doing no more than setting out what position was, as he understood it, and nothing more. If that is, or may be true, then do not hold the conversation against Mr Marray at all. If you're sure it does show a willingness on the part of Mr Marray to help avoid people being caught then you can take into account as providing support for the prosecution in count two, but it is only a factor."
Then a little later on, the judge comes back to the point briefly at page 24, when he recounts the conversation, and says this:
"The prosecution say you can take that into account that Mr Marray is willing to go beyond where he should to help his clients to avoid arrest."
He puts the defence submission in that context, that there is nothing reprehensible about the conduct of Mr Marray in relation to that matter.[46]It is plain from those parts of the summing-up that the judge is treating this transcript as potentially probative relevance in relation to count 2. In our judgment, he was plainly entitled to do that and we think there was nothing wrong with the summing-up. It is fair to say he could have said a little more, he could have said that the jury ought not to convict merely because of that conversation, but we think that looking at the summing-up as a whole, and in particular having in mind the way in which he presented the issue that the jury had to deal with in count 2, that would have been entirely plain to them. This was merely potentially supportive evidence if they found that it was indeed reprehensible conduct.[47]When dealing with the other transcripts in the context of analysing the evidence in count 1, the judge does not say to what extent, if at all, those transcripts may be considered relevant to count 2. Mr Davies, for the prosecution, submits that it was always the prosecution case that potentially they were of some relevance, some probative value, because they demonstrated the nature of the relationship between the appellant and his clients. They would have some bearing on whether or not it was likely that the appellant would have used the words to Mr Stewart which it was alleged that he had used.[48]He also points out that in course of his summing-up, the judge made it clear to the jury that whilst they could have regard to any conviction, in relation to either count 1 or count 2, when considering the other count, they could only do so if they were sure that the appellant was either guilty on count 1 or 2, whichever they considered first. In other words, given in this case they acquitted on count 1, he submits that might suggest that they did not use the transcripts relating to conversation with Jones as having any bearing on count 2.[49]That would not strictly follow, as Mr Power pointed out. The fact that the appellant was acquitted on count 1 would not establish that the jury had not considered those conversations in the Jones’ transcripts in relation to count 2.[50]In our judgment, it would have been legitimate to use these conversations as casting some light on the allegations in count 2. So if the jury did use them in that way, it was legitimate for them to have done so. However, we do not in fact think that it is likely that the jury would have read matters in that way because of the distinction the judge implicitly drew from the structure of his summing-up between the evidence going to count 1 and the evidence going to count 2.[51]But we would go further. In our view even if the jury had used the Jones’ transcripts to support the case against the appellant in count 2, and even if that was wrong, we do not think that it could have been materially prejudicial in this case. We do not think that any defect has resulted in any unfairness to this defendant or cast doubt on the safety of the conviction. This is because the appellant effectively conceded what this evidence was designed to establish.[52]In page 58 of the summing-up, when

the judge said this:

"When he was cross-examined on behalf of the prosecution, he was asked whether he thought he'd ever really crossed the line so to speak, gone beyond what a solicitor should do to their client. Mr Marray agreed that he had. He said that the mortgage fraud discussion and discussing with Mr Jones matters relating to other kinds cases; 'Those are things' he said, 'I am not proud of.' He said, 'They don't show me in a particular good light but I have properly represented people.' For example, what about conversations about somebody who said he was an informant, he said, 'Yes that was mistake.'"
Then the appellant went on to say he had embellished the story about a particular individual being an informant but it was not true.[53]That was of course not dissimilar to the explanation he had given for the conversation with Ravenscroft. There was another conversation which the judge referred to in his summing-up at page 17, in relation to the mortgage fraud, when the evidence of the appellant was that he was pandering to Mr Jones and telling him what he wanted to hear.[54]It seems to us that these concessions, in the light of the evidence which had been adduced before the jury, demonstrate precisely what this bad character evidence (in so far as it was properly so described and did not fall within section 98) was designed to establish, namely that the appellant was the kind of man who would cross the line, as he accepted that he would do and had done so on other occasions. That, submitted the Crown, was potentially material evidence because it had a bearing on whether or not he was likely to have entered into this conversation with Stewart as the prosecution alleged.[55]We entirely agree with that submission. In those circumstances, we do not think that it can be said that the appellant suffered any material prejudice from any unsatisfactory features there may have been about the way in which the summing-up was structured.[56]For those reasons and notwithstanding the conspicuously able submissions of Mr Power, we reject this appeal.