Burke, R. v [2016] EWCA Crim 1954

[2016] EWCA Crim 1954Case No 20154967 B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 20 October 2016
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE LLOYD JONES
MR JUSTICE HICKINBOTTOM
MR JUSTICE JEREMY BAKER
Between
R E G I N ACrownJEANETTE BURKEDefendant
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSIONComputer-Aided Transcript of the Stenograph Notes ofWordWave International Limited trading as DTI165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr D Emanuel appeared for AppellantMr W Hughes QC appeared for CrownJ U D G M E N T (Approved)

LORD JUSTICE LLOYD JONES:

On

[1]6th July 2006 in the Crown Court at Liverpool before His Honour Judge Mark Brown, the appellant was convicted of conspiracy to supply cocaine (count 1 on the indictment) and conspiracy to supply heroin (count 2). On 7th July 2006 she was sentenced by Judge Brown to 20 years' imprisonment on each count to run concurrently, with a direction that the 275 days spent on remand in custody should count towards sentence.[2]On 20th February 2007 the single judge, Holland J, refused leave to appeal against conviction and sentence. On 25th January 2008 the full court Tuckey LJ, Clarke and Coulson JJ refused the renewed application for leave to appeal against conviction and sentence. That is reported as R v Baker and others [2008] EWCA Crim. 334.[3]Although tried alone, the appellant was charged with 15 others on counts 1 and 2. In addition, six others were named as conspirators in counts 1 and 2, four of whom were charged on a separate indictment. In the context of this appeal the following matters are of particular note. On 17th March 2006 Christopher Burke pleaded guilty to counts 1 and 2. A basis of plea was submitted. Issues relating to this basis of plea form the subject matter of this appeal. On 24th July 2006, after the appellant had been tried and sentenced, Christopher Burke was sentenced to 14 years' imprisonment on each count to run concurrently.[4]On 17th March 2006, John Mullally pleaded guilty to counts 1 and 2. A basis for plea was submitted. Issues relating to the basis of plea are raised on this appeal. On 24th July 2006, after the appellant was tried and sentenced, he was sentenced to 14 years' imprisonment on each count to run concurrently.[5]On 24th April 2006 Keith Burke, the appellant's ex-husband, pleaded guilty to count 1. Count 2 was left to lie on the file in the usual way. A basis of plea in relation to count 1 was submitted. Issues relating to this basis of plea form the subject matter of this appeal.[6]On 7th July 2006, the same day on which the appellant was sentenced, Keith Burke was sentenced to 11 years' imprisonment on count 1.[7]On 19th April 2006 Russell Burke pleaded guilty to count 1. Count 2 was left to lie on the file in the usual way. A basis of plea was submitted. Issues relating to the basis of plea are raised in this appeal. On 27th July 2006 he was sentenced to 11 years and six months' imprisonment on count 1.[8]The appellant now appeals against conviction upon a Reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995. The grounds for that referral are summarised in the statement of reasons of the CCRC as follows:
"There is a real possibility that the Court of Appeal would find that there has been material non-disclosure of the bases of plea entered by Christopher Burke and Keith Burke, the consequences of which have undermined the safety of Ms Burke's conviction on counts 1 and 2."
[9]Today the appellant has been represented by Mr Emanuel of counsel and the Crown by Mr William Hughes QC, neither of whom appeared at the trial. We have been greatly assisted by their very helpful submissions this morning.[10]Although the CCRC's decision to refer was made because of non-disclosure of the bases of plea by Christopher Burke and Keith Burke, the appellant's grounds of appeal cite further non-disclosure of the bases of plea entered by John Mullally and Russell Burke. Having considered section 14(4)(a) and (b) of the Criminal Appeal Act 1995, we take the view that the submissions regarding the bases of plea of John Mullally and Christopher Burke are related to the CCRC's reasons for referral. Both parties are in agreement with this view. Accordingly further leave to appeal is not required and these issues will also be considered on this appeal.[11]The appellant was indicted on two charges of conspiring to supply class A drugs between 1st August 2004 and 5th October 2005. Count 1 related to the supply of cocaine. Count 2 related to the supply of heroin.[12]The prosecution arose out of a 15-month police investigation during 2004 and 2005 named Operation Lima. Extensive police surveillance was involved. The investigation exposed a sophisticated criminal organisation operating in Merseyside which imported drugs from continental Europe, from Spain, Holland and the Balkans for onward distribution and supply in Liverpool. Christopher Burke, John Mullally and David Baker, referred to by the prosecution at the appellant's trial as the "big three" were said to be the leading members. Although tried alone the appellant was also said to be closely involved. In addition, numerous others were said to have involvement to varying degrees including Keith and Russell Burke. Christopher Burke was the appellant's close friend and business associate. Keith Burke was the appellant's ex-husband. Russell Burke was Christopher Burke's brother. Notwithstanding their identical surnames, the brothers Christopher and Russell Burke were not related to the appellant or to her ex-husband Keith Burke.[13]The prosecution case was founded largely on five seizures of large amounts of drugs. The first was a seizure of cocaine in or around Dover on 14th December 2004. The second was a seizure of cocaine at Knowsley, Liverpool on 8th March 2005. The third was a seizure of cocaine at the Radisson Hotel Liverpool Airport on 27th May 2005. The fourth was a seizure of heroin at Speke, Liverpool on 13th June 2005. The fifth was a seizure of heroin in Suffolk on 15th July 2005. These seizures were said by the Crown to represent the tip of the iceberg.[14]The prosecution case was that the appellant was an experienced business woman who participated in the conspiracies throughout the indictment period and in each of the five seizures by providing financial acumen and business planning. Her role included converting sterling into euros for the purchase of drugs abroad, acting with Christopher Burke to distribute drugs through Liverpool clubs and doormen, and laundering money from the supply of drugs through legitimate businesses or the purchase of property.[15]The prosecution evidence against the appellant was circumstantial evidence and many of the facts relied on were agreed.[16]To prove the existence of the two conspiracies the prosecution relied inter alia on the following matters: 1. The five seizures of drugs set out in the admissions. 2. The participation of Christopher Burke and John Mullally as proved by their guilty pleas and the conviction in the case of David Baker. Those matters were set out in the admissions. 3. The participation and roles of others including Keith Burke and Russell Burke as proved by their guilty pleas and convictions set out in the admissions. 4. The pattern and frequency of telephone contact and meetings between participants at key times, as set out in the Sequence of Events Schedule. This schedule had been compiled using police surveillance and telephone evidence and it was accepted as an accurate and fair representation of the prosecution evidence. 5. Travel abroad at key times by various participants as set out in the Sequence of Events Schedule. 6. A document written by Christopher Burke which was said to demonstrate the conspiracies at work.[17]To prove the appellant's participation in the two conspiracies the prosecution relied inter alia on the following matters: 1. The pattern and frequency of telephone contact and meetings between the appellant and other participants, particularly Christopher Burke and Keith Burke, at key times as set out in the Sequence of Events Schedule. 2. Travel abroad at key times by various participants, including on flights booked by the appellant. 3. The document to which I have already referred written by Christopher Burke which was also said to demonstrate the appellant's financial involvement in the two conspiracies.[18]The defence case was one of innocent association. The issue for the jury was whether it could be inferred that the appellant participated in the conspiracies.[19]The guilty pleas and convictions of co-defendants were agreed and they were set out in the admissions. These may be summarised as follows in relation to count 1. Christopher Burke, John Mullally, Keith Burke, Russell Burke, Carlo Zalmijn and Humphrey Dijks pleaded guilty to count 1. David Baker was convicted on count 1. Geoffrey Allen and Susan Allen admitted involvement in the Dover seizure on 14th December 2004 by pleading guilty to being concerned in the possession of cocaine. Gerard Mahoney admitted involvement in the Dover seizure. Marvin Kane admitted involvement in the Knowsley seizure.[20]The pleas and convictions relating to count 2 were set out in the admissions, including the following matters. Christopher Burke and John Mullally pleaded guilty to count 2. David Baker and Ronald Johnson were convicted on count 2. James Christian, James Haydon, Mladen Djurkovic and Zeljko Mocnik pleaded guilty to conspiracy to supply heroin in relation to the Speke seizure. Michael Butler and Richard Taylor pleaded guilty to being concerned in the supply of heroin in relation to the Suffolk seizure. Abdul Choudhury pleaded guilty to being in possession of heroin with intent to supply in relation to the Suffolk seizure.[21]There was however no mention in the admissions or in the summing-up of the bases of plea submitted by Christopher Burke, John Mullally, Keith Burke or Russell Burke and no suggestion that their guilty pleas were limited in any way.[22]The facts of the five seizures were not in dispute. The majority of the evidence was set out in the admissions. The Dover seizure of cocaine on 14th December 2004[23]On 25th November 2004, £26,000 in cash was seized at Dover from the co-accused Gerard Mahoney when he was en route to Barcelona. A 14th December 2004, 10.99 kilograms of cocaine was seized at Dover Docks from a lorry. It was concealed inside scaffolding which had been shipped from Barcelona to a fictitious company (RBI Quick Form Solutions) invented by Keith Burke. The Knowsley seizure of cocaine on 8th March 2005[24]On 8th March 2005, 5.99 kilograms of cocaine was seized on a road near Knowsley from a car being driven by Marvin Kane in the direction of Liverpool. Although Marvin Kane was not a co-accused, in the sense that he was not charged on the same indictment as the appellant, he was named as a conspirator in counts 1 and 2. The Radisson seizure of cocaine and cash on 27th May 2005[25]On 27th May 2005, 1.5 kilograms of cocaine and £24,000 in cash was seized from a suitcase in a room at the Radisson Hotel in Liverpool. The hotel room was occupied by the co-accused Carlo Zalmijn and Humphrey Dijks, both of them Dutch, who had imported the cocaine from Holland. The Speke Airport seizure of heroin on 13th June 2005.[26]On 13th June 2005, 13.38 kilograms of heroin was seized from a garage near Liverpool Airport at Speke. James Christian, James Haydon and Mladen Djurkovic were present in the garage. The heroin had been imported through Dover the previous day in a Croatian registered lorry driven by Zeljko Mocnik. Although James Christian, James Haydon, Mladen Djurkovic and Zeljko Mocnik were not co-accused, in the sense that they were not charged on the same indictment as the appellant, all four were named as conspirators in counts 1 and 2. The Suffolk seizure of heroin on 15th July 2005[27]On 15th July 2005, five kilograms of heroin was seized in Suffolk from a taxi making a round trip from Liverpool. The co-accused Abdul Choudhury was present in the taxi. Choudhury had been sent to Suffolk by David Baker to collect the heroin from the co-accused Richard Taylor and Michael Butler.[28]The majority of the evidence against the appellant at her trial was set out in the Sequence of Events Schedule which inter alia summarised pertinent telephone records and police observations. There was other evidence, for example analysis of the appellant's computer which revealed information about flight bookings to Spain for herself and other participants, including Christopher Burke and Keith Burke. This analysis revealed internet searches relating to scaffolding clips.[29]The prosecution invited the jury to draw inferences about the existence of the conspiracies from the pattern, frequency and timing of telephone contact, meetings, travel abroad and other matters. The prosecution also invited the jury to draw inferences about the appellant's participation in the conspiracies in the same way. For example, Christopher Burke, John Mullally and David Baker were in regular contact throughout the indictment period, both in person and on the telephone. Those three were often in contact with participants from whom drugs were seized shortly before the seizures. The appellant was in regular contact with Christopher Burke and Keith Burke throughout the indictment period, both in person and on the telephone. The appellant's contact with Christopher Burke often took place shortly before or after he had been in contact with other participants, particularly John Mullally and David Baker, the other two leading participants. The intensity of contact increased shortly before and after significant events such as drug importations. Christopher Burke, John Mullally and David Baker and other participants often travelled to destinations in Continental Europe shortly before drugs were imported from those places, including on flights booked by the appellant.[30]We turn to the evidence of meetings and contacts relating to count 1: The Dover seizure of cocaine[31]The prosecution relied on evidence including telephone contacts, meetings and trips to Barcelona. There was further significant evidence regarding flight bookings, internet searches and shipping arrangements. In the weeks preceding the cash seizure there was frequent telephone contact between the appellant, Christopher Burke and Keith Burke. They also met on several occasions. In addition Christopher Burke was in telephone contact with John Mullally, David Baker and Russell Burke. They also met John Mullally. As for trips to Barcelona, the co-accused Geoffrey Allen (the brother of another co-accused Susan Allen) travelled to the City on flights booked by the appellant. Gerard Mahoney also flew there carrying a large amount of cash. Further, Christopher Burke and Russell Burke took a trip there together, travelling out on the same flight. On Christopher Burke's return he met the appellant at McDonald's and part of their conversation was overheard by the police. Euros were mentioned and the appellant was heard to say:
"I don't know if I'll be able to manage it in time."
[32]On 30th November 2004 Susan Allen, the girlfriend of Keith Burke, telephoned shipping agents to inquire about shipping scaffolding from Barcelona to Liverpool. She referred to herself as "Jeanette", that is it appears she purported to be the appellant and she claimed to be calling from RBI Quick Form Solutions. The same day the appellant and Susan Allen were in telephone contact for the first time and exchanged several calls.[33]In the period between the cash seizure and the cocaine seizure, frequent telephone contact continued between the appellant, Christopher Burke and Keith Burke. Meetings between them also continued. In addition, Christopher Burke was in telephone contact with John Mullally and he also met John Mullally and Russell Burke.[34]As for trips to Barcelona, Geoffrey Allen again travelled there on flights booked by the appellant. The outward flight was on 9th December 2006, which was the same day that slipping agents collected the cargo of scaffolding from an address in Barcelona for shipment to RBI Quick Form Solutions. Christopher Burke and David Baker also flew to Barcelona the day before the cocaine seizure. The morning after the cocaine seizure, Keith Burke discovered what happened to the shipment through the shipping agents. He immediately telephoned Geoffrey Allen who left the location where the shipment was due to be delivered. Thereafter there was telephone contact between the appellant, Christopher Burke and Keith Burke. Keith Burke was also observed shredding paperwork. At lunchtime the appellant and Keith Burke met at Miller's Bridge. Another person was in Keith Burke's car. Following the meeting telephone contact between the appellant, Christopher Burke and Keith Burke continued. In addition there was a further meeting between the appellant and Keith Burke in a Wetherspoons pub later that afternoon. The Knowsley seizure of cocaine[35]The prosecution relied on evidence of telephone contacts and meetings. In the days leading up to the seizure there was telephone contact between the appellant, Christopher Burke and Keith Burke. Christopher Burke was also in telephone contact with John Mullally and Russell Burke. On the day of the seizure Christopher Burke made numerous telephone calls to the appellant and Marvin Kane. The day after the cocaine was seized, Christopher Burke met the appellant in a McDonald's car park. Shortly thereafter he met David Baker. The Radisson seizure of cocaine and cash[36]The prosecution relied on evidence including telephone contact and meetings, a trip to Amsterdam by David Baker and Russell Burke a few days before the seizure, observations in the Radisson Hotel and an audio recording of the hotel room from which the cocaine was seized. In the period leading up to the seizure, the appellant met with Christopher Burke and Keith Burke several times. One of the meetings was at the Radisson Hotel. There was also telephone contact between them. In addition, Christopher Burke and John Mullally met Carlo Zalmijn in London and David Baker met Carlo Zalmijn in Amsterdam a few days later. There was also telephone contact between Christopher Burke, John Mullally and David Baker. On the day of the seizure the appellant was observed sitting in a parked car outside the Radisson Hotel in Liverpool looking towards it, when Carlo Zalmijn and Humphrey Dijks first arrived. In addition, Christopher Burke and John Mullally met the two Dutchmen for lunch. John Mullally then returned with them to the hotel and an audio recording of the hotel room revealed money being counted when John Mullally was present. In the hours after the seizure, which took place at 22.00, there were numerous telephone calls between Christopher Burke, John Mullally and David Baker. There were also attempts to telephone Carlo Zalmijn, who had in fact been arrested. At 1.49 the next morning Christopher Burke sent a text message to the appellant.[37]The evidence of meetings and contacts in relation to count 2: The Speke seizure of heroin[38]Here the prosecution relied on evidence of telephone contact and meetings. In the days preceding the seizure Christopher Burke and the appellant were in frequent telephone contact. Christopher Burke was also in telephone contact with David Baker. In addition, a few days prior to the seizure, Christopher Burke and the appellant met at a yard. Keith Burke was also present. Two days after the seizure, Christopher Burke had a succession of telephone calls speaking alternately with David Baker and the appellant. The Suffolk seizure of heroin[39]The prosecution once again relied on evidence of telephone contacts and meetings. On 24th June 2005 Christopher Burke, John Mullally and David Baker drove to Birmingham where they met Richard Taylor and Michael Butler in a restaurant. Christopher Burke and the appellant were in frequent telephone contact on the evening of the meeting in Birmingham and during the rest of the period leading up to the seizure. Both were also in telephone contact with Keith Burke. On 29th June 2005, Christopher Burke met the appellant and Keith Burke in a bar. In addition, Christopher Burke was in contact with John Mullally, David Baker, Keith Burke and Russell Burke. In the hours prior to the seizure David Baker was in telephone contact with Richard Taylor and Abdul Choudhury. Five days after the heroin was seized, Christopher Burke and the appellant exchanged a series of telephone calls and text messages.[40]The prosecution also relied on further evidence against the appellant, including the following: 1. A meeting took place on 20th September 2005 between the appellant, Christopher and Richard Williams, a friend of the appellant and a defence witness, at which the exchange rate for Shekels was discussed. The appellant gave evidence that the meeting came about because Christopher Burke was offered Shekels in payment for a car, whereas Richard Williams gave evidence that he was told by the appellant that someone wanted to exchange a large amount of Shekels. The prosecution invited the jury to infer that Richard Williams' understanding of the purpose of the meeting was not consistent with the appellant's evidence and to infer that the meeting took place because Christopher Burke and the appellant were giving consideration to the laundering of dirty money into different currencies. In this regard the prosecution also pointed to telephone contact in the hours following the meeting between Christopher Burke and the appellant and between Christopher Burke and John Mullally, David Baker and Keith Burke. 2. The prosecution relied on the fact that four ecstasy tablets and a small amount of amphetamine had been found in the appellant's possession on her arrest on 5th October 2005. 3. A document written by Christopher Burke and found at Russell Burke's home address was said to demonstrate the conspiracies at work and the appellant's financial involvement. It contained telephone numbers for John Mullally, the appellant, Keith Burke and Marvin Kane. It also contained instructions including the statement "Tell Keith to phone this number (Gerard) when he gets to the sunny. There is €104,500 at the minute, but Jeanette has got to give you €27,000 which will make €131,500. Phone her Tuesday and get her changed before you see Keith on Wednesday so all dough is clinged." 4. The appellant's police interviews were relied upon in which it emerged that the term "clinged" refers to wrapping money in clingfilm to avoid detection by sniffer dogs. 5. The Crown relied on an inconsistency between the appellant's defence statement and her evidence at trial regarding a meeting with Keith Burke at Costco on 17th December 2004, which was three days after the Dover seizure.[41]The appellant gave evidence at the trial consistent with her prepared statements in interview. She denied participating in the two conspiracies. She stated that her association with those who did was innocent, emanating from longstanding business and personal relationships. For example, she maintained that the fact that Keith Burke made telephone calls to Spanish numbers during December 2004, immediately before and after telephone conversations with her, was a matter of coincidence. She was a business woman who ran bars and nightclubs in Liverpool. Christopher Burke was a very close friend and a business associate who helped run and organise doormen for her business, the Navy Bar. Keith Burke was her ex-husband. She was married to him from 1981 until 2002 and they continued to associate after their divorce. Prior to and during the indictment period, she loaned money to Christopher Burke, Keith Burke and various others for lawful purposes. In addition to the Navy Bar she had legitimate financial interests in a range of other business ventures and property dealings, some of which were in Spain. Consequently she sometimes carried large amounts of cash abroad. For example in December 2003 she carried £84,500 worth of Euros to Spain for the purchase of an apartment in Marbella. Her evidence was that she did not know John Mullally or David Baker. The grounds of appeal[42]The CCRC's Statement of Reasons has been adopted on behalf of the appellant and further submissions are contained in the perfected grounds prepared by Mr Emanuel. The CCRC's decision to refer was founded on non-disclosure of the bases of plea of Christopher Burke and Keith Burke and inconsistencies between the prosecution case against the appellant and those bases of plea which may have created a false impression to the jury. In addition, passing reference is made to the same issues in relation to the bases of plea of John Mullally and Russell Burke.[43]The perfected grounds of appeal are founded on a similar basis to the CCRC reference, namely non-disclosure of the bases of plea of Christopher Burke, Keith Burke, John Mullally and Russell Burke and inconsistencies between the prosecution case and those bases of plea such that the jury may have convicted the appellant on the basis of evidence that was not capable of proving her guilt.[44]On behalf of the appellant it is submitted first that the prosecution relied on evidence of the guilty pleas of Christopher Burke and Keith Burke, but the appellant and the jury were not informed that the guilty pleas were limited by accepted bases of plea. Secondly, it is said that the prosecution relied on evidence of the appellant's contacts with Christopher Burke and Keith Burke at times that were inconsistent with their bases of plea, but the appellant and the jury were not informed that the contact fell outside the accepted limits of their involvement. Thirdly, it is submitted that the prosecution's presentation of their case in a manner that was inconsistent with the accepted bases of plea had a significant impact on the case and caused gross unfairness to the appellant. She did not have a fair trial because the jury were misled about the interpretation of evidence presented against her and they may have convicted her on evidence that was not capable of proving her guilt. Fourthly, it is said that the prosecution's failure to disclose the bases of plea also had a significant impact on the case and caused gross unfairness to the appellant because she was deprived of the opportunity to expose inconsistencies in the prosecution case. She was further deprived of the opportunity to support her defence, which was one of innocent association, by pointing to the numerous occasions where her contact with Christopher Burke and Keith Burke took place at times when the prosecution accepted that they were not involved. For all those reasons it is submitted that the convictions cannot be regarded as safe.[45]We turn to the bases of plea. Christopher Burke[46]On 17th March 2006, prior to the appellant's trial, Christopher Burke pleaded guilty to counts 1 and 2. He submitted a basis of plea contending that his involvement on count 2 was limited to the Suffolk seizure. The basis of plea reads as follows:
"This basis of plea is agreed between the prosecution and the defence. Christopher Burke's involvement in the conspiracy to supply heroin is limited to the seizure of 4.49 kg of powder containing 3.55 kg of heroin on 15th July 2005 near Capel St Mary, Suffolk."
That is signed by prosecuting counsel and his defence counsel. Thus it states in terms that it was accepted by the prosecution and it was signed, as we have said, by junior prosecution counsel Mr Unsworth.[47]The prosecution notes of the hearing indicate that it was accepted that Christopher Burke was not involved in the Speke seizure, that is the other seizure falling within count 2, which is described in the notes as very different to the others. On 24th July 2006, after the appellant was tried and sentenced, Christopher Burke was sentenced on the basis that he was not involved in the Speke seizure. Keith Burke[48]On 24th April 2006, prior to the appellant's trial, Keith Burke pleaded guilty to count 1. Count 2 was left to lie on the file on the usual terms. He submitted a basis of plea contending that his involvement on count 1 was limited to the Dover seizure and that his role was limited to arranging the importation of scaffolding from Barcelona, knowing that drugs would be hidden inside the scaffolding. The prosecution notes of the hearing indicate the basis of plea was not accepted by the prosecution, but they were of the view that a Newton hearing was not required:
"Basis of plea. Our case is Dover importation. Do not accept basis, but Newton hearing not required."
That refusal to accept the basis related to the extent of his role in the Dover seizure.[49]Keith Burke's implicit denial of involvement in Knowsley and the Radisson seizures was not contested.[50]The appellant and Keith Burke were both sentenced on 7th July 2006. The judge decided eventually that a Newton hearing was not required in the case of Keith Burke and he was sentenced on the basis that his involvement was limited to the Dover seizure. John Mullally[51]On 17th March 2006, prior to the appellant's trial, John Mullally pleaded guilty to counts 1 and 2. He submitted a basis of plea denying involvement in the Knowsley seizure within count 1 and denying involvement in the Speke seizure within count 2. The basis of plea further expressly stated that the prosecution did not seek a Newton hearing. On 24th July 2006, after the appellant was tried and sentenced, John Mullally was sentenced. Russell Burke[52]On 19th April 2006 prior to the appellant's trial Russell Burke pleaded guilty to count 1. Count 2 was left to lie on the file. Russell Burke submitted a basis of plea contending that his involvement on count 1 was limited to the Dover seizure. The note records the following:
"Russell Burke pleads guilty to count 1 - plea accepted vis count 2 - will be a basis of plea - involvement limited to the Dover seizure - not disputed by prosecution."
The basis of plea therefore expressly indicated that this was not disputed by the prosecution. On 27th July 2006, after the appellant was tried and sentenced, Russell Burke was sentenced. Discussion 1. Were the bases of plea disclosable by the prosecution?[53]On behalf of the Crown it is accepted that the bases of plea submitted by Christopher Burke, Keith Burke, Russell Burke and John Mullally in these proceedings are material that should have been disclosed to all co-defendants pursuant to the Criminal Procedure and Investigations Act 1996 as they were capable of undermining the prosecution case or assisting the defence. In our view that concession is obviously correct. In this regard we note that the basis of plea of Christopher Burke was expressly accepted by the Crown, whereas the other bases of plea with which we are concerned were not. However, in none of those other three cases did the Crown seek a Newton hearing. 2. Were the bases of plea disclosed?[54]The question which then arises is whether these bases of plea were disclosed or whether the defence in the case of the appellant were otherwise aware of the material or on notice in relation to the material. This bears on the question whether the evidence as to whether the bases of plea were known to the appellant or a legal adviser should be considered fresh evidence for the purposes of this appeal. Here, there is a dispute between the parties. On behalf of the appellant it is submitted that there was no disclosure of the basis of plea of any of these four co-defendants, nor was notice given to her defence team. On behalf of the Crown, Mr William Hughes QC does not question the statement by Mr Cole QC (as he now is), defence counsel at trial, that there was no formal disclosure. However, Mr Hughes does submit that it is open to this court to hold that the defence were on notice of the contents of the bases of plea.[55]Prosecuting counsel at the trial were asked by the CCRC whether these matters had been disclosed. The responses do not provide any support for the view that they were disclosed to the appellant's defence team. In response to enquiries from the CCRC, trial counsel for the appellant, Mr Cole, clearly states in his email of 21st November 2014 that the bases of plea of Christopher Burke and Keith Burke were not disclosed to him or to his solicitors. His recollection is that they were told that they were not accepted and would not be the subject of a final decision whilst the appellant's trial was ongoing. He also states that he was never made aware of any basis of plea by any other means. The hearings were dealt with in a piecemeal fashion and he was never present when any basis was read out. His recollection was of bases being given to the Crown, but that was it. He states that no basis of plea of any other defendant was given to him. He adds that had he known of any specific basis of plea that assisted the appellant, then he would have sought to use that material during the trial.[56]The trial judge, His Honour Judge Brown told the CCRC that Keith Burke pleaded guilty on 24th April 2006 which was the date which had been set for trial. The prosecution did not accept the basis of plea but did not require a trial of the issue. The judge states that this was not an unusual decision in a large conspiracy case and it was announced in open court. He states that the appellant's case was also listed for trial on the same date and it is reasonable to think that her legal team might have known what was happening in relation to Keith Burke.[57]So far as that hearing on 24th April 2006 is concerned, the appellant maintains that she was not present at court on that occasion. Indeed we note that she was in custody and there would not appear to be any reason why she should be brought to court on that occasion. It appears that on that occasion Keith Burke pleaded guilty and sentence was adjourned. There is no suggestion in the CPS note of those proceedings that day that Mr Cole was present in court.[58]The CCRC asked Mr Cole about his attendance at court when Christopher Burke and Keith Burke entered their pleas. In a further response to the CCRC dated 21st July 2015, Mr Cole stated that although he could not find a note of attendance on 17th March 2006 or 24th April 2006, his recollection was that he did attend. All he recalled being told was that a basis of plea was given to the Crown and to the court by both Christopher Burke and Keith Burke. He was never given a copy. His recollection was that the Crown told the court that the bases were not accepted. He was never told the bases of plea and he does not recall what enquiries were made.[59]We note that following the trial the appellant was sentenced on 7th July 2006 and that Keith Burke was sentenced on the same day. They were however sentenced separately as the judge states in his response to the CCRC and that is supported by the CPS note of that sentencing hearing where the proceedings relating to Keith Burke and the appellant are accordingly under separate headings. Unfortunately, as with the other hearings with which we are concerned, no recording of that hearing survives. However, the CPS note does make clear that reference was made at the start of that hearing t tot he basis of plea of Keith Burke. The judge appears to have been unwilling to accept it. It does appear however that the issue was limited to the extent of Keith Burke's involvement in the Dover consignment. This matter was resolved to the satisfaction of the Crown and Keith Burke was sentenced later that day on the basis that his involvement was limited to the Dover consignment. We simply do not know whether any representative of the appellant was in court at that time.[60]Counsel who appeared for Keith Burke that day told the CCRC that the basis on which Keith Burke was sentenced would have been known to all present in court at that sentencing hearing. As matters stand, the picture as to what was known to the defence team at the trial of the appellant concerning the bases of plea of the co-defendants is very unclear. The matter is further complicated by the fact that there is at present no application for permission to call fresh evidence. The material placed before the court on this appeal is simply that contained in the Statement of Reasons of the CCRC and the documents annexed thereto. However for reasons which will become apparent, we have come to the view that it is not necessary for us to make any findings on this aspect of the case. 3. The prosecution case[61]The prosecution case against the appellant rested in substantial part on the evidence of contacts between the appellant and conspirators, in particular at critical points in the course of each conspiracy. In its opening the prosecution put it this way:
"We suggest that [the appellant] played a vital role in the conspiracy. She had close contact with Christopher Burke, one of the three men at the very heart of this conspiracy. He has already admitted his involvement in the conspiracy. She had meetings with him at key stages and was contacted at crucial times. She also knew and was in contact at significant times with others who have admitted being involved in the criminal conspiracy." 62. "
The prosecution relies upon evidence of observations, travels abroad, upon the meetings and telephone contacts to prove the existence of these conspiracies and Mrs Burke's role in them. You have been provided with a sequence of events schedule, and this is an important document. The dates, times and details are accepted as an accurate and fair representation of the evidence relied on by the prosecution. You will have to assess this material and consider the events in the context in which they took place." Later in his summing-up he directed the jury as follows: 63. "When you consider Mrs Burke's position it is important you do not just break down the evidence into its various pieces. In a case of this size it is natural to focus on individual events. But you should also stand back and consider the case as a whole. Do you see that, ladies and gentlemen, and how important it is to just stand back and look at the overall picture, not just focusing in on individual events. 64. In 2004/2005 an organised gang were operating on Merseyside to import and supply considerable amounts of cocaine and heroin. Their activities were detected as a result of a police investigation named 'Operation Lima' in which the police were building up a picture of the gang's activities. You know that Christopher Burke, John Mullally and David Baker were most prominent, being described as the 'Big Three'. You heard that Keith Burke, Russell Burke, Carlo Zalmijn and Humphrey Dijks have also pleaded guilty to count 1. Gerard Mahoney, Geoffrey Allen and Susan Allen have admitted they were involved in the Dover seizure and Marvin Kane has admitted being involved in the Knowsley seizure. You were told that James Christian, James Haydon, Mladen Djurkovic and Zeljko Mocnik have pleaded guilty to count 2. Ronald Johnson has been convicted of count 2. Abdul Choudhury, Richard Taylor and Michael Butler have admitted they were involved in the Suffolk seizure. 65. These pleas and convictions are set out for you on the formal admissions and in themselves do not show Mrs Burke was involved. They only go to prove the existence of the conspiracies and the roles of those others in them. Although you have heard about five drug seizures, the prosecution suggest this was only the tip of the iceberg and not the full extent of the conspiracies. It is said this was an ongoing enterprise in which people sought to make vast amounts of money by distributing class A drugs in this city, an enterprise that involved a great deal of planning and organisation and hence, it is suggested, the telephone calls, travel abroad, meetings at key times is very significant. Not just the fact or number of such contacts, but the pattern of them having regard to what else was going on at the time. It is also suggested that the setting up of bogus companies to import scaffolding, or perhaps granite, was important as a cover story." In his submissions to us today, Mr Emanuel has drawn particular attention to the words in this passage in which the judge emphasised to the jury that the pleas and convictions set out in the formal admissions go to prove the existence of the conspiracies and the roles of those others in them.[62]The problem with the approach adopted by the prosecution, that is that the pattern of context at key times clearly showed that the appellant was knowingly involved in these conspiracies, was that the admissions placed before the jury simply referred to the pleas of the co-defendants. They did not reflect the bases of plea which had been entered and in the case of Christopher Burke accepted by the Crown. The admissions indicated only that Christopher Burke pleaded guilty to counts 1 and 2 and Keith Burke pleaded guilty to count 1. The jury were not informed of the limited basis on which they pleaded guilty, which gave the impression that they accepted full involvement. The same points apply in relation to John Mullally and Russell Burke. The jury were informed of their guilty pleas to count 1 but not of the limits. This effect may have been increased by the fact that in the case of certain other co-defendants the admissions specified particular incidents in which they accepted they had been involved.[63]In the result, as the case was presented there were inconsistencies between the Crown's case against the appellant and the bases of plea. Some of the contacts on which the Crown relied fell outside the limits of the involvement accepted by the co-defendants. These may be summarised as follows: Knowsley. Notwithstanding that Keith Burke pleaded guilty on the basis that he was not involved in the Knowsley seizure, the prosecution relied on Christopher Burke's telephone contact with Keith Burke on the days leading up to the seizure and the appellant's telephone contact with Keith Burke in the days leading up to the seizure. The prosecution further relied on the involvement of John Mullally and Russell Burke although they too pleaded guilty on the basis of not being involved in the Knowsley seizure. The Radisson. Notwithstanding that Keith Burke pleaded guilty on the basis that he was not involved in the Radisson seizure, the prosecution relied on the appellant's meetings with Keith Burke at which Christopher Burke was also present, in the periods leading up to the seizure and the appellant's telephone contact with Keith Burke in the period leading up to the seizure. The prosecution further relied on the involvement of Russell Burke, although he had pleaded guilty on the basis of not being involved in the Radisson matter. The Speke seizure. Notwithstanding that Christopher Burke pleaded guilty on the basis that he was not involved in the Speke seizure, the prosecution relied on the appellant's frequent telephone contact with Christopher Burke in the days preceding the seizure, the appellant's meeting with Christopher Burke and Keith Burke a few days before the seizure, the appellant's telephone contact with Christopher Burke following the seizure and the contacts between Christopher Burke and Keith Burke. With respect to the prosecution's reliance on contacts with Keith Burke, it is also of note that he pleaded not guilty to count 2 and was not proceeded against in this regard, count 2 being left on the file. Suffolk. Notwithstanding that Keith Burke had pleaded not guilty to count 2 and was not proceeded against in that regard, he featured in the prosecution's evidence with respect to the Suffolk seizure. The prosecution relied on Christopher Burke's telephone contact with Keith Burke prior to the seizure, the appellant's telephone contact with Keith Burke prior to the seizure and the appellant's meeting with Keith Burke on 29th June 2005 at which Christopher Burke and a man called Brian Alexander were also present.[64]The jury should have been informed of the limited nature of the guilty pleas of these four co-defendants and the fact that the prosecution did not proceed against Keith Burke on count 2. We consider that the failure to do so gave a misleading impression by suggesting that inferences could be drawn from the appellant's contacts with these individuals at times when, according to their bases of plea, they were not involved. Further, we consider that the appellant was denied the opportunity of making related points in support of her defence of innocent association. 4. What impact does this have on the safety of the convictions?[65]The test to be applied by this court is that set out by Hughes LJ (as he then was) in Mushtaq Ahmed v The Queen [2010] EWCA Crim. 2899 where he stated at paragraph 24:
" Although it is not critical to the outcome in this appeal, we do not in any event agree with Mr Ali's submission that it is sufficient to render a conviction unsafe that there now exists material which the jury did not have and which might have affected their decision. The responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on this court, which must make up its own mind. Of course it must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. It is likely to ask itself by way of check what impact the fresh material might have had on the jury. But in most cases of arguably relevant fresh evidence it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations, since ex hypothesi the jury has not seen the fresh material. The question which matters is whether the fresh material causes this court to doubt the safety of the verdict of guilty..."
[66]On that basis we turn to examine the safety of the convictions. We turn first to count 1, the cocaine conspiracy. The first point to be made here is that none of the matters referred to, so far in this judgment, has any bearing on the Crown's case against the appellant in respect of the Dover seizure. All four of the co-defendants with whom we are concerned pleaded guilty on the basis that they were involved in the Dover seizure. Indeed the CCRC's Statement of Reasons expressly accepts that the prosecution case against the appellant was not inconsistent with the guilty pleas of co-defendants in so far as the Dover seizure is concerned. The CCRC states:
"... it is important to note that the summary of evidence of linked calls surrounding the Dover seizure ... cannot be criticised. The contact with Christopher Burke and Keith Burke was all potentially highly incriminating given the nature of their pleas of guilty to this aspect of the case."
[67]We have examined the detail of the Crown case against the appellant in relation to the Dover seizure as set out in the judge's summing-up. We do not propose to go through it in detail in this judgment. Suffice it to say that here the Crown was able to rely on a considerable body of evidence of meetings and telephone contacts between the appellant and the co-defendants, often linked significantly to particular events in the course of the conspiracy, which provides compelling evidence of her participation in the conspiracy. In our clear view the jury would have been entitled to find the appellant guilty on count 1 on the basis of this evidence alone. We note that the CCRC expressed the same conclusion at paragraph 114 of the Statement of Reasons.[68]Knowsley. So far as the Knowsley matter is concerned the Crown relied on contacts between Christopher Burke and Keith Burke and between the appellant and Keith Burke, notwithstanding Keith Burke's basis of plea that he was not involved. In addition, reliance was placed on contacts between Christopher Burke and Russell Burke and John Mullally, the latter two having denied their involvement in this aspect of the case. However, there is a very substantial body of evidence here which supports the Crown's case. In particular, there were many calls between the appellant and Christopher Burke in the days leading up seizure. On 8th March, the day of the seizure, there were ten calls between them. Even though the Crown should not have made a point about the timing of those calls in relation to calls between Christopher Burke and Russell and Mullally respectively, with which they were interspersed, this remains important evidence. In particular, at or about the time the drugs were due to arrive, there were lengthy telephone calls between the appellant and Christopher Burke at20.54 and 21.22. The following morning, when it would have been known that things had gone wrong, Christopher Burke was calling the appellant and at 19.39 that day he met her in the car park at McDonald's. The appellant's explanation was that she had met Christopher Burke in order to discuss with him some documents which the police had just served on his wife. In our view the Crown were entitled to rely on this evidence as strongly supportive of the appellant's involvement in the conspiracy.[69]Radisson. On 27th May the police recovered cocaine and cash in a room occupied by Zalmijn and Dijks. Here the Crown relied on contacts between the appellant and Keith Burke, notwithstanding his denial that he was involved in this matter. However the Crown also relied on evidence of significant contacts between the appellant and Christopher Burke. On 14th May Christopher Burke and David Baker met in the car park of JJB Sports on Edge Lane. Baker, it will be recalled, was convicted on both counts 1 and 2. Immediately after the meeting, Baker called Mullally (who pleaded guilty on the basis that he was involved in Radisson) at 13.31 and Christopher Burke called the appellant three-and-a-half minutes later at 13.35. On 16th May the appellant met Christopher Burke and Keith Burke and another man at Hemmingsway café. Shortly after that Christopher Burke called Mullally and then Baker. Soon after that he called the appellant. On 17th May there were calls between Christopher Burke and the appellant. On 18th May the appellant, Christopher Burke and Keith Burke met at the Radisson Hotel. In the days up to the seizure on 27th May, the appellant was in phone contact with Christopher Burke. On 27th May, Zalmijn and Dijks arrived in Liverpool. At 14.21 they entered the Radisson Hotel. At that moment the appellant was seen by a police officer in a parked car outside looking towards the hotel. She accepted that she was there. She said she was waiting for a friend to go to Costco. She said that she did not know the two Dutchmen and it was simply a coincidence that she was outside when they went into the hotel. Even when allowance is made for the Crown's reliance in the case of two of the three seizures on contacts which did not support the Crown's case and for any inability of the defence at trial to develop these points in the context of the defence of innocent association, there is such a weight of evidence here pointing to the guilt of the appellant that we have no doubts about the safety of the conviction of the appellant on count 1.[70]We turn to count 2. The Speke incident represents the high point of the appellant's case on this appeal. Christopher Burke pleaded guilty to count 2 on the express basis that he was not involved in the Speke matter. Nevertheless the Crown relied on contacts between the appellant and him in presenting its case against the appellant, that the appellant was involved in the Speke matter. Although there was a sequence of calls from 10.21 on 15th June, which the Crown said was the aftermath of the seizure involving the appellant, Christopher Burke and David Baker, there were, as Mr Emanuel points out in his submissions today, no direct calls between the appellant and Baker.[71]Suffolk. The final seizure took place in Suffolk on 15th July when a Liverpool taxi was stopped and five kilograms of heroin was found in the boot. Here the Crown relied inter alia on contacts between the appellant and Keith Burke. Keith Burke had pleaded not guilty to count 2 and the plea had been accepted. The Crown case was that a significant meeting took place in Birmingham on the afternoon of 24th June and it relied on the fact that that evening the appellant and Christopher Burke were in frequent telephone contact.[72]On 28th June the appellant had a long telephone conversation with Christopher Burke. The Crown relied on a meeting on 29th June attended by the appellant, Christopher Burke and Keith Burke and the pattern of calls thereafter. On 30th June and 1st July there were further calls between the appellant and Christopher Burke. At 13.34 on 1st July Christopher Burke called David Baker and then immediately called the appellant. There were further lengthy calls between the appellant and Christopher Burke on 2nd and 4th July. On 15th July, when the drugs were to be collected, Christopher Burke sent a text to the appellant at 17.05. On 20th July, when it was known that the drugs had been lost, there was a long telephone call between the appellant and Christopher Burke.[73]When considered in the light of the basis of plea of Christopher Burke and in the light of Keith Burke's plea of not guilty to count 2, which was accepted by the Crown, the evidence of the contacts between the appellant and the participants in the Speke and Suffolk matters, when viewed in isolation, is certainly not as strong as the evidence of such contacts in count 1. Nevertheless, we are entirely satisfied that the conviction of the appellant on count 2 is safe.[74]This evidence has to be considered as part of all the evidence in the case. The conspiracy involved the same parties, continuing from the events of November and December 2004, albeit involving a different class A drug. Furthermore, although it was accepted that Christopher Burke was not involved in the Speke matter, the fact that he had not left the continuing conspiracy is demonstrated by his plea of guilty to count 2 on the basis of the Suffolk incident which occurred at a later date. Furthermore, the evidence of the appellant's involvement in the earlier conspiracy (that is count 1) is overwhelming in our view and this may properly be taken into account in considering the question of her guilt on count 2.[75]For these reasons, the appeal will be dismissed.[76]Finally, we should record the court's appreciation of the Criminal Cases Review Commission's work in investigating this matter and in producing such a careful and thoughtful report. Despite the outcome of this appeal, we consider that the CCRC was correct in referring this matter to the Court of Appeal and we are grateful to it.

Cited in 1 later judgment