25/01/99 - Reply from COURT OF APPEAL

THE LORD CHIEF JUSTICE

Between 1 September 1997 and 20 January 1998 the three applicants stood trial at the Central Criminal Court before Hidden J and a jury on an indictment containing five counts.

Count 1 was laid against all three applicants; it charged them with conspiracy to smuggle cannabis and cannabis resin into this country. All three applicants were convicted.

Counts 2, 3 and 4 were counts of murder, each laid against the applicants Steele and Whomes, but not against the applicant Corry, Each count was laid in relation to a particular victim: Patrick Tate, Anthony Tucker and Craig Rolfe.

The death of each victim was charged against both of the applicants Steele and Whomes in separate counts. They were both convicted on each of those counts. The applicant Corry, we repeat, was not involved.

Count 5 charged the applicant Steele only with possession of a shotgun as a prohibited person, he being a prohibited person by virtue of a previous conviction. On that count the applicant Steele was acquitted.

Central to the Crown's case was the evidence of a witness named Darren Nicholls. He was, on his own admission, an accomplice in the importation of drugs and a crucial witness on the counts of murder. He was a man with a criminal record, with a demonstrated willingness to lie, and a relationship with a corrupt police officer.

On these and other grounds he was a witness who was vulnerable to attack. The prosecution accepted that on the murder counts they had no case without him. His evidence was clearly central to the Crown's case on counts 1 and 5 also. We summarise the substance of count 1 in the barest possible terms.

The case for the prosecution relied on five trips from this country to the Continent. On the first occasion (so the prosecution alleged) Nicholls and the applicants Corry and Steele travelled to Amsterdam and left money with a foreign supplier named Stone.

They however returned to the United Kingdom on that occasion without any consignment of drugs, perhaps because none was available. The second trip was said to involve a visit to Amsterdam by Nicholls and the applicant Corry to collect drugs.

These, it is said, were delivered to the applicant Steele at a pre-arranged meeting place on the coast of Belgium which he approached from the sea in a reinforced inflatable boat.

The case was that the drugs were stowed in the boat and that the applicant Corry left in the boat with the applicant Steele and the drugs. The third trip was said to involve a visit to Amsterdam by Nicholls with a friend named Reid, who was not charged as a party to the conspiracy.

According to Nicholls, he collected the drugs, went to the same pre-arranged meeting place and on that occasion returned with Steele in the boat to this country.Reid returned on his own.

The evidence of Nicholls was that when the boat reached the coast of this country the drugs were delivered to the applicant Whomes. The fourth trip again was described by Nicholas. He said that he collected a large sum of money from the applicants Steele and Whomes and others, who included the deceased man Tate.

He and the applicant Corry, according to Nicholls, returned to Amsterdam via a ferry to the Hook of Holland. They hired a car, collected the drugs and travelled to the pre-arranged meeting place.

Again, according to Nicholls, the drugs were delivered to the applicant Steele in his boat, and Nicholls' evidence was that on that occasion the applicant Corry returned to this country with the appiicant Steele.

There was evidence that complaints were made about the quality of the cannabis supplied in this consignment, some of it being said to be inferior.

This was taken up with the supplier in Amsterdam who admitted that some of it was inferior, although he asserted that a third of the consignment was of ordinary quality.

The fifth trip was made to Amsterdam, according to Nicholls, by him and the applicant Steele, travelling by ferry and train to obtain a refund of the money which they had paid to Stone in Amsterdam, which they eventually did.

According to the prosecution (but this was all very much in issue), it was suspected that Tate, having received part of this consignment of drugs, had received some which may have been of adequate quality. According to the prosecution, this was one possible source of ill-feeling between him and in particular the applicant Steele.

Steele, however, also said that there was a threat made to his life by Tate, and there was some suggestion of resentment at the manner in which Tate treated his girlfriend. Those alleged grievances against Tate were advanced by the prosecution as the background to the murders.

The three victims, who included Tate, were found dead early on the morning of 7 December in Land Rover. They had suffered shotgun wounds inflicted at close range.

The Land Rover was parked on a farm track in Essex. The evidence given by Nicholls, again very briefly summarised, was to the effect that he had met the applicant Steele at his request and that they had met up with the applicant Whomes.

The suggestion was that the victims had been lured to the place where their bodies were found and then shot by the applicants Steele and Whomes, or one or other of them.

The Crown's case was that Nicholls was not involved in the killing but played a part as driver, although he was not party to the plan to kill. The essence of count 5 was that the applicant Steele had asked Nicholls to get him a gun. Nicholls did so.

He was engaged in performing electrical work on a house belonging to the applicant Steele. He put the gun in the rafters, where it was ultimately found. On this count, as already mentioned, the applicant Steele was acquitted, from which the inference is drawn that the jury were not satisfied of the evidence given by Nicholls on that ground.

That in a nutshell is the background to these applications. The first application that we have heard advanced by Mr Lederman QC on behalf of the applicant Whomes relates to several different grounds.

The first is that the judge wrongly exercised his discretion against severance of count 1 from the other counts on the indictment.

Mr Lederman submits that the importations of cannabis, and in particular the early importations of cannabis, had no connection with the murders which formed the substance of counts 2, 3 and 4; that the combination of the counts was prejudicial to his client; and that the trial could very conveniently have been confined to the murders and, if necessary, to the last two trips relating to the cannabis conspiracy.

He however argues that in particular the first three cannabis expeditions had no connection with the murders and therefore severance should have been ordered.

He acknowledges that, when the matter was before the judge, the applicant Steele was strongly of opinion that all the matters relating to these importations of cannabis should be heard together, and accordingly the suggestion that the last two trips alone should form part of the indictment was not a matter which the judge was called upon consider.

Mr Lederman acknowledges that a decision on severance is very much a matter for the discretion of the trial judge but nonetheless submits that, in the particular circumstances of this case, the judge's exercise of discretion is open to criticism.

In our judgment the judge's exercise of discretion was not only defensible but, as the single judge held, correct. It would in our view have been artificial to invite the jury to hear the murder counts on their own since it would have appeared to be an entirely motiveless crime which they would have found it difficult to understand Mr Lederman submits that the motive which the prosecution were able to advance was unpersuasive.

But whether it was a persuasive motivation or not was a matter for the jury. It would have been very difficult indeed for the Crown to paint any background to these killings had the conspiracy been tried separately.

Equally, had count 1 been severed and tried on its own first, any intelligent jury would be bound to ask how it all ended. Having heard of a dispute with Tate at the end of the story, the jury would be bound to ask themselves, and tempted to speculate, why no evidence from him had been forthcoming. In our judgment this formed a single, coherent story if the prosecution case was correct and it was for the jury to decide whether it was accepted or not.

It was in our judgment the only intelligent way in which the matter could be put before the jury and, subject to appropriate directions, we feel sure that the judge's decision was correct.

An alternative submission is made that, even if the judge was right to make the decision which he did at the outset of the trial, nonetheless he should have formed a different view later on. Severance is of course a matter that a judge can properly be asked to reconsider. The judge was asked to reconsider it.

He formed the same judgment as he had originally formed and we see no reason to think that he was wrong on that occasion either. Thirdly, it is submitted on behalf of this applicant that the judge should have acceded to a defence submission that there was no case for the defendants to answer.

This submission very largely depended on the attack made on the reliability of the witness Nicholls in cross-examination. Nicholls was in the witness box for several weeks and was cross-examined at very considerable length with the result that the they had an extended opportunity to form a judgment of him.

No doubt it is true – and one can have no doubt – that there were aspects of his evidence which were severely mauled in cross-examination. Nonetheless, the essential question for the judge was whether, if the jury substantially accepted the thrust of Nicholls' evidence, there was a case for the defendants to answer.

Having reminded himself of the test laid down in the very familiar case of R v Galbraith, the judge held that there was a case to answer. We entirely agree with that judgment. Mr Lederman has invited us to read the extract which has been transcribed of the cross-examination of Nicholls. That we have done.

It reinforces our view that the judge was right to take the view he did. The next point advanced on behalf of the applicant Whomes concerns a witness named Jasper, who was called by the applicant Steele.

He gave an account to the police and in the witness box of an occasion at the end of 1995 when he had gone to the place, or very near the place, where the bodies of the three deceased victims were found.

He was permitted in evidence to describe this journey, to describe how a passenger in his car had left the car, had returned, had a shotgun and was subsequently dropped off by him. Application was however made to the judge to allow the witness Jasper to be questioned as to an alleged admission of having effected the killing carried out by the unnamed and unidentified individual whom he had carried in his car on this occasion.

The judge refused to allow that question to be asked, regarding it as inadmissible hearsay. Approaching this matter as we must as one of principle, the first question which we ask is this: is a witness testifying in court allowed to give evidence of what a third party said to him out of court in order to prove the truth of that statement? The answer to that question as a matter of law is in our judgment "Yes", but only in very clearly defined and exceptional circumstances.

The reason for that rule is familiar and was very succinctly put by Lord Normand delivering the advice of the Privy Council in Teper v The Queen [1952] AC 480, 486 where he said: "The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath.

The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.

Lord Bridge, in R v Blastland [1986] AC 41, 54, having quoted that extract, observed: "The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve.

" There are, however, well-established exceptions to this exclusion of hearsay evidence. One is to be found in the case of dying declarations, which is not relevant to the present case.

A second exception is to be found in the rule relating to res gestae, an exception very fully and authoritatively elucidated by the advice of the Privy Council in Ratten v The Queen [1972] AC 378, and by the House of Lords in R v Andrews [1987] AC 281.

This is a rule which permits evidence to be adduced of a spontaneous identification of an offender made by a victim or a bystander during or in the immediate aftermath of the commission of a crime in circumstances which preclude the possibility of concoction, ulterior motive or error.

The present case is plainly not one which involves the spontaneous or any identification of an offender, since the witness Jasper was wholly unwilling to name or identify the alleged maker of the statement which was in issue.

We note that in R v Blastland [1986] AC 41, which preceded the decision in g, v Andrews, the first question certified for consideration by the House of Lords was in these terms: "Whether the confession by a person other than the defendant to the offence with which the defendant is charged is admissible in evidence where that person is not called as a witness (Reg v Turner (Bryan) (1975) 61 Cr App R 67)."

On petition to the House of Lords leave to appeal on that ground was refused. With reference to it Lord Bridge said: "It has been recently pointed out that the refusal by an Appeal Committee of the House of a petition for leave to appeal is not the equivalent of an authoritative decision of the House affirming the decision of the Court of Appeal from which leave to appeal was sought, since leave may be refused for a variety of reasons:

see In re Wilson [1985] AC 750, 756, per Lord Roskill. However, the decision of the Court of Appeal (Criminal Division) in Reg v Turner (Bryan), 61 Cr App R 67, which an appeal on the first certified point would call in question, was itself based on the majority decision of your Lordships' House in Myers v Director of Public Prosecutions [1965] AC 1001, which established the principle, never since challenged, that it is for the legislature, not the judiciary, to create new exceptions to the hearsay rule.

To admit in criminal trials statements confessing to the crime for which the defendant is being tried made by third parties not called as witnesses would be to create a very significant and, many might think, a dangerous new exception."

This present case does not in our judgment fall anywhere near admissibility under the res gestae exception. It is a statement made by the alleged assailant. It does not identify the person accused or said to have committed the crime, and there is nothing to suggest that it was made in the immediate aftermath of the killing; it was certainly not made during the killing.

In our judgment the judge was right to exclude evidence of this hearsay statement. Had he thought fit (as we think wrongly) to allow it to be admitted, he would have been bound to advise the jury to place no reliance on it.

The next ground advanced on behalf of this applicant relates to the evidence which was adduced at the hearing of mobile telephones. It is apparent that at various stages during this story very active use was made of mobile telephones by various alleged participants.

For present purposes, however, the argument turns on a relatively narrow issue which is where Nicholls and the applicant Whomes were on 6 December 1995, shortly before 7pm. The evidence showed that Nicholls had an Orange mobile telephone and the applicant Whomes a Vodaphone.

The evidence suggested that Whomes made one call which was routed through a call station at Ingatestone and one through a call station at Hockley. Evidence was called from an expert to suggest that if the applicant Whomes had been at Workhouse Lane, where the bodies were found, then it would have been unlikely that the calls would have been so routed.

The applicant Whomes himself said that he was at the Wheatsheaf public house and the expert's view was that the routing of these calls would have been more consistent with his account. So far as Nicholls is concerned, he gave evidence that, after dropping the applicant Whomes, he returned to the Wheatsheaf public house but there found that he was unable to obtain a good signal and accordingly drove to Meadow Road, where he got a good signal.

On this issue also the expert gave evidence. He suggested, as a result of tests which he carried out, that one would have expected a good signal at the Wheatsheaf and a less good signal from the site to which Nicholls said he went The expert however, while expressing opinions, as he was fully entitled to do, showed a proper degree of caution and reserve and admitted that nothing could be regarded as certain.

A complaint that is made is not that the judge in any way misrepresented the evidence on this point or failed to remind the jury of it, but that he simply reminded the jury of all the evidence on the point without analysing it in order to indicate which points were relied on in particular by the defence.

Mr Etherington QC, who has argued this point on behalf of the applicant Whomes, submits that the jury were entitled to be assisted and that the judge should have reminded the jury what the specific issues were. In our judgment this suggestion needs to be viewed in context.

The judge delivered an extremely long, but also extremely fair, comprehensive and neutral account of the evidence, which contained very little indeed by way of comment. While some summings- up do recite the evidence and then outline the points which arise, this judge did not at any stage of his summing-up adopt that course.

We also bear in mind that these points had been the subject of very detailed evidence and argument over an extremely long period. Mr Etherington submits – and he was echoed in this by Mr Gledhill on behalf of the applicant Steele – that the evidence was complex and not easy to assimilate. At first blush that is no doubt true.

We have however to bear in mind the length of this trial and the degree of obvious care which was devoted to almost every conceivable issue. We think it unlikely in the extreme, having heard both counsel and the judge, that the jury were not very fully alive to what the fairly limited issues were.

On this ground also we find no reason to criticise the judge. The last ground advanced on behalf of this applicant is to criticise the verdicts of the jury as irrational.

The basis of this submission is that it was irrational of the jury to acquit on count 5 and to convict on the first four counts. It is said that the evidence of Nicholls was so crucial to all the counts that there was no rational basis upon which the jury could have doubts about count 5 if they had none about the other counts.

In our judgment that is not an acceptable submission or even an arguable one. The evidence on count 5 was quite different. It is plain, as has been pointed out to us, that, on certain matters relating to date, Nicholls' evidence was undermined in relation to count 5; there was little or nothing to corroborate it; there were documents produced by the applicant Steele which threw doubt upon his account.

Having been reminded that any doubt should be resolved in favour of the defendant, we infer that on this count the jury did feel doubt. That does not however suggest to us that they were in any way irrational or inconsistent in feeling no doubt about the other counts.

In relation to the applicant Steele, certain of the grounds advanced are the same. It is again submitted that the judge was wrong to reject an application to sever the drugs counts from the murder counts and to order trial of the counts together.

It also said that he was wrong to reject a submission that the counts should be severed on the second occasion when it was made. It is also urged that he was in error in refusing to hold that there was no case on counts 2, 3 and 4 for the jury to consider.

On those grounds we have nothing to add to what we have already said in relation to the first applicant. The same is true of ground 4, which relates to the telephone evidence, and of ground 5, which relates to inconsistency. This applicant has, however, himself drafted a number of grounds which Mr Gledhill has pertinaciously and succinctly put before us.

First of all, there are three grounds relating to the judge's handling of the jury, it being alleged that there was jury intimidation; that there was improper jury vetting; and that the judge should have discharged the jury because of an incident involving a complaint about the way that a prison officer was behaving while in charge of the defendants.

There is in our judgment no substance whatever in any of these points. For example, it is submitted that the jury was unbalanced because it did not contain employed persons or youthful persons, because there were too many women, because it did not have professional personnel. It may very well be that the jury consisted of people who could, without gross inconvenience, sacrifice the amount of time to their public duties which this case called for.

However, in our judgment there is no suggestion that there was a material irregularity or anything which could have jeopardised the safety of these verdicts. It is then argued that the verdicts were inconsistent, but that is a matter with which we have already dealt. There is a complaint that the judge failed to give a proper direction on the burden of proof.

But the judge's direction was, as is admitted, in entirely conventional terms; there is no ground for criticising it. There is a complaint that the judge's summing-up was materially deficient and substantially unbalanced on crucial defence issues.

In any trial of this length it is doubtless possible to identify various matters which the judge has omitted to mention. If these are of substance they can be brought to the attention of the judge. The trial judge in this case gave counsel an opportunity to raise points with him before the jury were directed to retire to consider their verdicts.

It was, in truth, as already indicated, a very long, very comprehensive and very neutral summing-up; it was not a speech for the defence, but nor was it a speech for the prosecution. Neither singly nor cumulatively in our judgment is this complaint tenable.

In ground 7 the applicant suggests that there was a misdirection of fact. This relates to what appears to have been a slip of the tongue by the judge, which can have had no effect on the trial.

There are other matters which, it is said, the judge should have mentioned, but these seem to us of the most tenuous kind. In ground 8 it is argued that the judge wrongfully admitted evidence which was inaccurate in detail and used to corroborate false claims by the prosecution.

This relates in the main to schedules of telephone calls which were laid before the jury. It may very well be that there were errors in such schedules; it would indeed be surprising if there were not.

It does not however appear, in particular so far as the telephone calls on the day of the alleged murders are concerned, that there were errors which in any way put a false gloss on the case. It is then said in ground 9 that evidence was wrongfully excluded.

The applicant complains that a video giving evidence of his marine activity over a number of years was excluded, and that various witnesses who should have been called were not.

Again there has, even in a trial of this length, to be some limit to the evidence called and we find nothing whatever to suggest that anything that was excluded was in any way germane to the issues. In ground 10 it is complained that the judge failed to exercise his discretion to rule on the admissibility of evidence and unsubstantiated comment.

In particular it is complained that prosecuting counsel made observations in opening which were not borne out by the evidence and made accusations which were never substantiated. This may or may not be correct.

We cannot form a final judgment as to whether it is correct or not. It is, however, in the context of a case of this size and length a very minor consideration and could not justify this court in holding the convictions to be unsafe.

There is a particular complaint about some photographs which the judge directed the jury to disregard. There is a complaint in ground 11 that the judge gave inconsistent rulings regarding contempt of court and prejudice to the proceedings.

In effect the complaint is that in this case he gave one ruling and in another instance concerning a police officer he gave a different ruling. We are only concerned with his ruling in this case and there is no ground shown to us to suggest that the applicant was in any way prejudiced by it.

Lastly, we turn to a series of complaints made by the applicant concerning the behaviour and conduct of the case by counsel then instructed. There are a considerable series of complaints. Counsel has chosen some in order to make good this ground, but has made it plain that none of these points is in any way abandoned and has indeed taken us through them in detail.

The first of the particular complaints which he highlighted was that counsel failed to cross-examine Nicholls about an alleged statement made by him to the effect that an earlier shooting of the victim Tate prompted Nicholls to say, "I could shoot somebody".

It is apparent that the applicant Steele was aggrieved that this point had not been put to Nicholls and took it up with counsel, pointing out that it had originally been contained in a very lengthy statement of his evidence.

Counsel was at first of opinion that the matter had not been brought to his attention, but on further examination found that it had. According to counsel's written account, he explained to prosecuting counsel that the failure to put this point, which at that stage was being held against the applicant, was his responsibility.

He then says that he raised the matter with the judge who agreed that he should immediately explain the matter to the jury. This, according to leading counsel was done, and the jury were clearly told that his failure to put the point should not in any way reflect upon the applicant Steele.

He asserts that the topic was not referred to again by the prosecution or the trial judge, that he himself did refer to it during his final speech in an attempt to dilute the effect upon the judge, and no doubt the jury, of the manner in which the applicant had given evidence. It may very well be that that account of leading counsel is challenged by the applicant.

A second matter of which he strongly complains is the late delivery of his alibi. He submits that he gave detailed instructions concerning his whereabouts on the date of the murders in good time to serve an alibi notice within the time limited, but that this was not done and that this worked to his disadvantage in the trial.

His account of this matter is contradicted by Miss Patricia Lynch QC, who has stated that the applicant himself did not wish the alibi notice to be served because he regarded the police as corrupt and thought that the witnesses would be approached or suborned.

Be that as it may, no doubt her account of this matter may be challenged, although it appears to be, to some extent at least, corroborated by an attendance note of the solicitors. There are, we should emphasise, a considerable number of other matters of which the applicant complains.

We are told that he has a very strong sense of grievance at the way in which his defence was conducted by leading counsel. The question we have to ask ourselves is whether, in the context of this case, these points could, even arguably, lead to a finding that the convictions were unsafe.

It is plain that defending counsel had an extremely difficult task to perform and a demanding and anxious client. The fact that the client was demanding and anxious is not in any way a matter of criticism, given the charges he was facing.

But the inescapable fact is that in the course of a trial of this length and complexity there are bound to be matters which, particularly with the benefit of hindsight, could (and perhaps should) be done better and differently.

We cannot, however, having assessed these points both singly and cumulatively in the light of Mr Gledhill's helpful review, regard these as, even arguably, grounds upon which these convictions could be regarded as unsafe.

We turn therefore lastly to the case of the applicant Corry. His case on severance is naturally somewhat different because he was not a defendant to counts 2, 3 and 4, but only to count 1. This submission is put by Mr Rees QC on behalf of this applicant in two ways.

First, he submits that the conspiracy charge advanced against this applicant could very conveniently have been included in a later drugs trial which was to be conducted at Woolwich.

This, however, is not a matter that was ever mentioned to the trial judge, who was never told of a later trial at Woolwich, and in our judgment can afford no ground whatever for challenging the judge's exercise of discretion which naturally had to be based on the facts as put before him.

More significantly, Mr Rees submits that the course adopted by the judge led to an unsafe verdict against this applicant, in particular because the evidence on the murder counts way not admissible on count 1.

He submits that his client suffered injustice, or the risk of injustice, because the conspiracy count to which he was a defendant was yoked to the "nightmarish” murder trial.

Mr Rees emphasises that it was necessary for the jury, as the judge recognised when giving his ruling on severance, to consider the evidence solely in relation to count 1 so far as this applicant was concerned, and that the jury should have been very explicitly warned against a train of thought which concluded that the other two defendants were guilty on counts 2, 3 and 4, and that therefore all three of them were guilty of count 1.

That, Mr Rees submits, would be unfair to the applicant Corry. This is a matter which we have carefully considered. The judge gave his reasons for holding that the counts should not be severed.

When he came to sum up to the jury he said at the very beginning: "As you know there are five counts on this indictment. The defendant Steele is charged on all five, the defendant Whomes in the first four and the defendant Corry in only the first one.

How do you approach that situation? The answer is that you must consider each count separately and the case against and for each defendant separately on each count. There has to be separate consideration. We will look more closely at the charges against these defendants set out in the indictment in a few minutes.

You will remember that in that important obligation to consider each count separately on its merits, but of course it does not mean that you should ignore all the evidence of background circumstances. That evidence may well be evidence which will assist you in returning a verdict.

Moreover your decision on the facts of one count might assist you in coming to a conclusion on another count or counts. Nevertheless you must reach separate verdicts on each count having focused on each separately and having formed a separate decision about it."


Mr Rees submits that the judge should have made plainer to the jury that they should not hold against his client any conclusion they formed about Mr Nicholls' evidence on counts 2, 3 and 4, but it seems to us that the judge did stress the need to approach each count separately.

The inescapable fact was that Nicholls was a crucial witness on all the counts, not just on counts 2, 3 and 4, and not just on count I. While we in no way reproach counsel, we do note that no suggestion was made to the judge at the time that his direction on this point was in any way unsatisfactory or unfair.

Mr Rees submits that there was little to support the evidence of Nicholls on the conspiracy and that it is possible that the jury may have used their judgment on the credibility of Nicholls on the murders to support his credibility on count 1.

The alternative is in our judgment no less likely. The essential question was whether Nicholls was broadly to be accepted or not. Mr Rees advances an argument on inconsistency, echoing submissions made by the other applicants: that it was inconsistent of the jury to acquit on count 5 and convict on the other counts.

But for reasons already given we are unpersuaded that there is force in that submission. In our judgment, and for reasons we have briefly given, we consider that there is no ground for granting leave to any of the three applicants.