Abnett & Anor, R v [2017] EWCA Crim 41

No: 2016/0059/C5 & 2016/0062/C5[2017] EWCA Crim 41
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 31 January 2017
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE DAVIS
MS JUSTICE RUSSELL DBE
Venue THE RECORDER OF MANCHESTER
HIS HONOUR JUDGE STOCKDALE QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
MICHAEL ABNETTFLORIN JELERU
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedTrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr E Gritt appeared for AppellantsMr C May appeared for Crown
J U D G M E N T

LORD JUSTICE DAVIS: Introduction

[2]The sole ground of these two appeals against conviction is based on what is said to be an inconsistency between the verdicts delivered by the jury. That there is such an inconsistency is not disputed by the prosecution. The question is whether, in particular in the light of the decision of a constitution of this court in the case of Fanning [2016] 2 Cr.App.R 19, any inconsistency arising is such that this court should interfere on the ground that the convictions are unsafe.[3]The appellants, along with two co-accused, faced trial in the Central Criminal Court. Both appellants were convicted after the trial before His Honour Judge Cooke QC and a jury on 26th November 2015 on a count (count 1) of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, the goods in question being class B drugs (amphetamine). However, and central to these appeals, both appellants were on that occasion acquitted by the jury of a further count (count 2) of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, being class A drugs (in the form of ecstasy).[4]A co-accused called Barclay was convicted on both counts 1 and 2 and on other effectively unrelated matters. An acquittal was directed by the judge in respect of a further co-accused called Ursu.[5]The appeals against conviction before us are by leave of the single judge. Mr Gritt has represented the appellants. Mr May has represented the respondent Crown. Facts[6]The factual background was this.[7]On Saturday 11th October 2014 a Romanian registered lorry entered the United Kingdom through Dover. It drove up to a particular trading estate which was a commercial yard in Woolwich in South East London. The lorry contained what was accepted to be a legitimate load of plastic seed trays. Those had been collected from a manufacturer at a town called Ering in Germany and was destined in due course for a legitimate company in Huntingdon in Cambridgeshire. In addition, however, the lorry also contained as part of its load 16 cardboard boxes with Ikea written on the side. The boxes had been collected from an address in Holland. Those boxes contained over 350 kilograms of amphetamine sulphate, with an estimated street value of between £3.5 and £7 million. That was to constitute count 1 on the indictment. However one of the boxes, in addition to containing amphetamine, also contained over 5,000 tablets of ecstasy with an estimated street value of in excess of £52,000. It was that importation relating to ecstasy which was count 2 on the indictment.[8]The appellant Jeleru was the driver of the lorry. He was accompanied by the co-accused Ursu as a passenger. The co-accused Barclay was the transport manager for one of the companies based at the trading estate. He met the lorry at the yard and was involved in unloading the pallets of boxes which contained the drugs using a fork-lift truck, leaving the other items containing the plastic seed trays in the lorry. Those boxes were loaded onto a white van which had been hired by and driven to the yard by the appellant Abnett. Whilst the boxes were being loaded onto the van, all four men were arrested by police and other officers who were present as a result of intelligence and surveillance --[9]The prosecution case was that the appellants and the co-accused were all knowingly concerned in a large scale importation of controlled drugs. The evidence was that the lorry had deviated from its natural route across Europe from Germany in order to make a collection in Holland which was no part of the legitimate and authorised load. There was an absence of any official paperwork for the additional boxes. Furthermore, a form of receipt had been found dropped in the lorry which linked the boxes with the address in Holland; and there were absolutely no relevant tachograph discs on the lorry relating to such a journey to Holland, the tachograph discs having been falsified. The prosecution were to say that this amounted to further clear evidence that this was a smuggling operation.[10]In addition, the prosecution relied on mobile phone evidence showing co-ordination between various of the co-accused. A UK phone number ending in 353 was stored in Abnett's phone under the name "Burt". That had been in contact with a Romanian registered phone known as "Mario 3". The "Burt" phone was described by the prosecution as being the "dirty phone" used to coordinate the UK side of the operation and used to give instructions to Abnett for him to attend the trading estate. The "Mario 3" phone had also been used to contact Jeleru's phone in order to give instructions in connection with the collection in Holland and the delivery to Woolwich. Moreover, at trial the co-accused Barclay accepted that he had the "Burt" phone at the times which the Crown said were critical, particularly in the run up to the eventual importation and handover of the drugs on 11th October 2014. Abnett was to say that he did not know Barclay and had had no dealings with him, as opposed to "Burt", albeit it was Barclay who had the "Burt" phone on the final day in question and it was Barclay who came out to supervise the unloading of Jeleru's lorry. Abnett denied any knowledge that the boxes contained drugs or that there had been any importation of such drugs. He said that he believed he was collecting clothing and shoes to sell in street markets at the direction of the man whom he knew as "Burt".[11]Jeleru admitted driving the goods into the United Kingdom on the instructions of a man called Mario, but denied knowing that the boxes contained drugs. He admitted having falsified details on the tachographs. He said that this had nothing to do with drug importations; rather it was designed to enable him to drive more hours and claim more remuneration in consequence.[12]In essence, the issues for the jury with regard to counts 1 and 2 were whether the appellants were party to an agreement to import the boxes which contained the drugs which were intended to be off-loaded at the trading estate; whether they knew that the boxes contained controlled drugs; and whether they did something significant to further the importation of the boxes intending that it be not discovered by the authorities. The summing-up[13]Towards the outset of his summing-up the judge drew the jury's attention to the fact that they by now no doubt would have been well alive to the fact that count 1 involving the amphetamine related to class B drugs, and count 2 involving the ecstasy related to a class A drug. The judge then, again at a relatively early stage, provided the jury with relevant written directions. He also explained those directions orally to the jury in his summing-up. Amongst other things he gave them a conventional separate treatment direction. He said:
"You must consider each count separately and the case against and for each defendant separately on each count."
There had been no suggestion by any counsel before him that such a direction was inappropriate or should be tailored or modified in any way.[14]The judge then went on to give directions in law as to the required state of knowledge if the prosecution was to prove its case. Amongst other things the judge said this:
"The prosecution do not have to prove knowledge that it was amphetamine sulphate, only knowledge that they were controlled drugs."
This direction was and is accepted by all counsel as correct in law. Turning to count 2 (that is, the count relating to the ecstasy)

the judge said this amongst other things:

"Count 2, I shall not repeat all of that because of course the circumstances are identical. This is the ecstasy that was in box 8..."
The judge went on to state that here too what the prosecution had to prove, if there was to be a conviction, was that each particular defendant knew that the package contained controlled drugs. The judge then said this:
"So there is no separate proof of knowledge of the category of drug required in both count 1 and count 2. Proof of knowledge of a controlled drug is sufficient. The reason that it is split up is that there are different consequences. That is entirely a matter for me and not for you, but the fact that they are split does not indicate the need to have a separate proof of knowledge as to the class A drug and the class B drug."
He gave further directions to like effect at a later stage in the summing-up. Discussion[15]In those circumstances it can fairly be said that at its lowest there is clearly an oddity arising here, indeed an oddity which Mr Gritt on behalf of the appellants is in a position to submit cannot gain any strictly logical explanation. True it is that in law counts 1 and 2 are separate counts: one relates to the importation of amphetamine, the other relates to the importation of ecstasy. But on the facts and circumstances of this particular case this was one and the same importation. The whole prosecution case throughout was that all those Ikea boxes, including the box that also contained the ecstasy, had been collected together in Holland on one and the same occasion and then brought together into the United Kingdom on one and the same occasion. It was in effect all part of one overall importation. No part of the prosecution case had sought to differentiate on the facts the position between the amphetamine on the one hand and the ecstasy on the other hand. The only difference was, as in effect the judge told the jury, a legal one: namely that count 1 related to a class B drug and count 2 related to a class A drug. Further, the judge had expressly instructed the jury in law, correctly as it is accepted, that the prosecution did not need to prove to the criminal standard that each individual defendant knew the type or class of drug involved. It was sufficient to prove to the criminal standard that each individual defendant knew that what was involved represented controlled drugs. In those circumstances, submits Mr Gritt on behalf of the appellants, these verdicts are logically inconsistent given that the jury acquitted on count 2 but convicted on count 1.[16]Mr May on behalf of the Crown accepts that there is an inconsistency here. He further accepts, by reference to the undisputed facts of the case as advanced by the prosecution, that the inconsistency can be said to be one involving a lack of legal logic in the light of the judge's directions as to the law. But it is submitted that even if there is such inconsistency it is not of a kind such that it should require that this court should interfere and pronounce the verdict on count 1 to be unsafe.[17]Mr May advanced certain suggestions, and suggestions is the very highest one can style them, as to how the jury might have reached the verdicts that they reached. For example, there was evidence that shortly after the police arrived Abnett was to say that he had realised that the items were not "kosher" but that he thought they were all "puff". Mr May submits that the jury may well in such circumstances, and given also that the ecstasy had been included as but a small part of the total consignment, have thought that neither Jeleru nor Abnett realised that they were importing ecstasy as well as amphetamine; and therefore they may have acquitted on count 2 -- not strictly in accordance with the judge's directions on the law, but nevertheless an entirely human response to one appraisal of the evidence.[18]In our view it is essential to assess the proper outcome for these appeals by reference to the recent decision of a constitution of this court in the case of Fanning to which we have already referred. It may be noted, in fact, that the decision in Fanning was published after the grounds of appeal and respondent's notice had been prepared and submitted to the single judge.[19]It is now authoritatively confirmed by Fanning that logical inconsistency between verdicts does not of itself always necessitate a quashing of convictions. All ultimately will depend on the facts and circumstances of the particular case.[20]In the case of Fanning, the court expressly approved the previous decision of a constitution of this court in the case of Durante (1972) 56 Cr.App.R 708 and disapproved various other judgments of various constitutions of this court which had appeared in the interim and which in effect, the court in Fanning suggested, had become over-refined and had added unnecessary glosses to the actual decision in Durante itself.[21]In giving the judgment of the court in Fanning, the Lord Chief Justice (Lord Thomas) referred to the background authorities. He referred to the unreported case of Stone (15th December 1954) where, amongst other things Devlin J had said this:
"When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that."
[22]At paragraph 8 of the decision in Fanning, the Lord Chief Justice pointed out that the view expressed in Stone had been formally adopted in Durante. The Lord Chief Justice referred to the remarks of Edmund Davies LJ in Durante at page 714 to this effect:
"We do not know whether this Court of Appeal has ever previously formally adopted the view expressed there by Devlin J that the burden is on the defendant to show that verdicts on different counts are not merely inconsistent but are so inconsistent as to demand interference by an appellate court. Be that as it may, for our part we are satisfied that it is right and we now formally express our approval and adoption of that position."
[23]There was then cited further remarks made in the previous case of Drury (1972) 56 Cr.App.R 104, where Edmund Davies LJ had said amongst other things:
"We reject as too bold the proposition that the simple fact that a jury has returned inconsistent verdicts, acquitting on some count or counts and convicting on others, means that in every such case this Court is obliged ex-necessitate to quash the convictions. There are cases which, in our view, can arise when it would be proper for this Court to say that, notwithstanding the inconsistency, the conviction or convictions must stand. It all depends upon the facts of the case."
[24]Lord Thomas then went on to cite with approval the decision in Segal [1976] Crim LR 324 as "a good example of the proper application of Devlin J's test." In Segal a motorist had been charged with driving at a dangerous speed and driving in a dangerous manner. He was convicted of driving at dangerous speed but acquitted of driving in a dangerous manner. The sole issue in the lengthy trial had been as to the credibility and reliability of the police officer and the appellant as to the speed at which the appellant was driving.[25]In giving the judgment of the court in that case, Scarman LJ commented that as a matter of "commonsense and justice" the jury might seem to have reached a "very reasonable" conclusion. He went on to say that they had brought in a verdict of guilty of dangerous speeding and that in giving this verdict they felt it was quite unnecessary and indeed unfair to bring in a verdict of guilty of driving in a dangerous manner since that added nothing. Nevertheless, Scarman LJ expressly accepted that the verdicts "are as a matter of legal logic inconsistent". He then went on a little later to say this:
"Inconsistent? Yes, in law. Unsafe, unsatisfactory or lacking in common sense? No, a perfectly understandable approach, in the view of this court."
The court went on to say that the existence of the formal logical inconsistency did not lead it to doubt the safety of the verdict on speed.[26]There was also cited to us the decision of the High Court of Australia in Mackenzie v R (1996) 190 C.L.R 348, itself cited in Fanning. That was a very different case on its own facts: but it may be noted that at page 367 the High Court amongst other things indicated that an appellate court may, where faced with seemingly inconsistent verdicts, conclude that the jury had simply taken a merciful view of the facts upon one count, a function which has always been open to and often exercised by jurors.[27]The upshot, at all events, of Fanning is that the decision in Durante was positively endorsed and affirmed. Further, the decision in Segal, amongst others, was accepted as a good example of a proper application of that principle established in Durante.[28]In our judgment, reverting to the facts and circumstances of this particular case, the test enunciated in Durante as affirmed and endorsed in Fanning, provides the answer to the present question.[29]The first point is that the judge had given a specific and conventional separate treatment direction at the outset of the summing-up without any objection from any counsel. Thereafter during the summing-up the judge had invited the jury to focus on the case of each defendant separately. It is not at all attractive for the jury then in effect on appeal to be criticised for not reaching the same verdicts on counts 1 and 2, when on the face of it they were acting in a way expressly permitted and authorised by the judge's instructions in the summing-up.[30]Second, there was on any view, and as was not sought to be controverted before us, a most powerful prosecution case that each of Abnett and Jeleru was knowingly involved with Barclay in this conspiracy to import drugs. At all events, of one thing the jury could have been under no illusion. That is, as repeatedly emphasised by the judge in the summing-up, they could only convict if there were sure that each individual defendant knew that controlled drugs were being imported. In our view it can safely be concluded on the facts of this present case that the jury, on ample evidence, were so sure, so far as these two appellants were concerned with regard to count 1. It may be, although we appreciate the risks of speculation, that the jury may have been influenced by Abnett's evidence that he knew that what was in the boxes was not kosher but thought that it was all "puff". They may also have been influenced by the fact that the ecstasy had been included as part of but one box comprising itself part of a load of a significant number of other boxes all containing (and solely containing) amphetamine. Such an approach we accept was not strictly legally correct thinking in the light of the judge's directions. But having regard to the approach taken in Segal, and having regard to the comments made in cases such as Mackenzie v R which we have mentioned above, we think that at least provides one explanation in human terms for why the jury did what they did. There is moreover no inconsistency at all with the conviction by the jury of Barclay on both counts: because quite plainly the evidence justified a conclusion that Barclay was an overall organiser at the UK end and knew full well all that was going on.[31]The position in law remains that it is not every case of legal logical inconsistency between verdicts which will require this court to interfere on the ground that a conviction is unsafe. Indeed Mr May was in our view entitled in the circumstances of this case to say that to the extent there was legal logical inconsistency it in truth lay in the acquittal on count 2.[32]We are, in the circumstances of this case, entirely unpersuaded that this court should interfere. The circumstances are not such as to require it. We are not persuaded in the slightest that the convictions on count 1 are unsafe. On the contrary, we are of the opinion, on the facts and circumstances of this case, that they are safe. We therefore dismiss these appeals.