Wednesday, 14th January 1998
SUMMING-UP (Continued) Page 5

Page 1 2 3 4 5 6

You will have seen them and you will have the chance to read them when you retire, but, for instance, matters that he made no comment to are question 11 at page 3 about the RIB and his ownership of it. Question 4 at page 5, which is the interview at 10.30 pm on the 2nd, and at 4 he made no comment when asked questions about the shotgun. When you read through these interviews you will see the prepared statement which he read at page 9, which I do not need to read to you at the moment, but he dealt with the situation in relation to his wife; he dealt with the finding of the shotgun; he dealt with the drive to the Magistrates' Court.

He said he had no intention of taking part or assisting in any further interviews or any other type of inquiry. At page 13 in the next interview the br-iefing note is summarised and then, at page 14 at 5, Mr Steele was asked the questions that follow, which include whether he knew Tate, Tucker and Rolfe; whether he conspired to import drugs, whether Tate had been in the same prison, and so on and so forth. You will remember when he was asked about these questions in cross-examination, he said, "I could have given an account of that. I could have given an account of that and at others I could have said then all that I told this jury." That, for instance, was what he said in answer to question 5(viii) at the top of 16 about the trip to Again at paragraph 8 on page 17 about his relationship with Nicholls, and about Nicholls working at Meadow Cottage.

Then about question 13 at page 18, the question about being involved in the shooting and murder of the three victims and, asked specifically if he had anything to do with the murders, you heard Mr Steele agree in the witness box in this case that he had the complete answer to that. In the next interview at page 21, question 5 deals with the meeting at Marks Tey, and a lot of other matters in the 11 sub-paragraphs put in Roman numerals. Question 7 on page 22, the details of what Nicholls was saying happened on the way to and at White Horse Lane (sic) were put to Steele and he made no comment. At paragraph 9 later details were put; no comment. I need not go on through these interviews, members of the jury. You can see the questions that were asked and the no comment answers that were given.

If we do the same exercise in relation to Exhibit 302(a), question 8 at page 2 is one where he made an answer but it did not explain what he had been doing on the beach that morning. The question was when Whomes was asked whether he had been on the beach at Felixstowe at 4.30 am in the morning on the 8th November, he replied, "I can't really remember. It's probably a long while ago." At page 4 questions were asked about exchanging the bad cannabis and he said, "I don't know anything about cannabis going anywhere. I don't know about cannabis being imported." When he was asked if he had gone out to Belgium where the refund took place on the 16th or 17th November, he replied, "I told you I've nothing to do with cannabis. I had nothing to do with whatever you are implying I had something to do with." At question 14 on page 6 when it was put to Whomes he was only prepared to say he had not committed the murders but was not prepared to discuss details around it, he gave an answer which included the explanation about incompetence, which I referred you to this morning, so for completeness I will refer you to it now.

He said, "If I get talking I might get myself in trouble when I know that I've done nothing wrong. That's why I don't want to talk. I've explained earlier on when you went on about certain charges or allegations, I think about drug importation, I'm categorically denying all these charges. I had nothing to do with them. That's why I daren't answer any more questions in case my own sort of incompetence I might get myself put in prison for a very long time." When he was asked what he meant by incompetence, he said he was referring to his incompetence in talking and that he had difficulty with sentences. At page 9 there are the questions about Rettendon and whether he had any knowledge of it. He gives his answer. At page 12, question 17, it was put to Whomes that he had given various reasons for not answering questions, to which he replied, "Well, can I say this, and I'll say this once more.

I don't know nothing about it so I cannot answer your questions." It was put to him that he could answer questions such as did he know Mickey Steele and he replied, "Yeah, I suppose I could do, but --", but did not answer the question. You know the detail that each defendant has gone into in the evidence they have given before you as to what they were doing when in relation to each of the five different trips abroad, only three of which resulted in the import of drugs, and only two of which resulted in the import of cannabis resin, the other being cannabis itself; that is to say, herbal cannabis in plant form. You have heard all the evidence that has been given on every subject in relation to that defence put forward by the defendants separately and you have heard them each accept that they could have given that explanation earlier if they had decided to.

The direction in law I have to give you on this topic, and it is where we will end today, is each defendant has in his defence lied on the detailed facts, which have been summarised to you, about their movements and the reasons for those movements and the knowledge that they had and the things that they said, details of that particular act. Each defendant admits that he did not mention those facts when he was questioned under caution before being charged with the offence. The prosecution case is that in the circumstances, when he was questioned, he could reasonably have been expected then to mention each of those facts. If you are sure he did fail to mention those facts, decide whether in the circumstances it was a fact which he could reasonably have been expected then to mention. If it was, the law is you may draw such inferences as appear proper from his failure to mention this matter at the time. Failure to mention such a fact cannot on its own prove guilt.

It cannot separately on its own prove guilt, but depending on the circumstances you may hold it against him when deciding whether he is guilty; that is take it into account as some additional support for the prosecution's case. You are not bound to do so. It is for you to decide whether it is fair to do so. Members of the jury, that is the last legal direction I will give you today. I will break off so far as you are concerned now. If you would be back in the jury box tomorrow morning at ten o'clock, arrangements will be made to look after what you have brought today to make sure it is safe overnight and if there is anything you have forgotten you will know to bring it tomorrow morning. Thank you, members of the jury. Would you like to leave now until ten o'clock tomorrow morning.

(The jury retired from court)
(In the absence of the jury)

MR JUSTICE HIDDEN: Mr Munday, Mr Parkins and Mr Maidment, let me tell you what I have in mind to do tomorrow so you know what I think is left. Let me also raise with you one problem on which I would be glad to have your assistance, and then listen to anything that you want to submit to me. One thing which is exercising my mind at the moment is what, if any, direction I should give the jury in relation to the jury protection which has been in force throughout the trial. In one sense, to raise it at all is to elevate its importance at a time when perhaps it has been got used and to is treated as perfectly normal and every day. In another very important sense, it is vital that the jury should be told that they must not allow the fact of jury protection in any way to be held as adverse to these defendants or to prejudice them at all.

I cannot remember what the direction was that I gave them at the start of the trial. I had it on paper but there is a mountain of paper and I know not which part of the mountain that direction is in at the moment. I would be willing to listen to any representations made to me. I had it in mind in embryo that if I do remind them that they must not be prejudiced -- that is the order that was made --to make it clear that the order was made because anyone could have tried to get at this jury, not only those in favour of a defendant or more, but equally those who were supporters of Tate, Tucker and Rolfe and who believe, whether right or wrong does not matter, in the guilt of these two defendants. The trouble with that is that it raises a possibility of others believing in guilt, so I would be very happy to know what the defence thinks, certainly. Mr Parkins, would you like notice of that?

MR PARKINS: Well, yes, I would. May I say this: My recollection of what your Lordship said at the outset was that it is not unusual in cases such as this, and we all know it is not. Following from that, the jury should not read anything into it, apart from the fact that they have got jury protection, and one cannot complain about that, with respect. But my own initial view is that because they are so aware of it, they have lived with it daily now for months, perhaps a word or two along the lines that they ought not to allow it to affect them, but not, with respect, to go on and deal with the balance, as it were, of who might --

MR JUSTICE HIDDEN: Well, it is an idea that occurred to me and was beginning not to occur to me, if I can put it that way.

MR PARKINS: Yes, and as your Lordship says, it raises the question that others might have views and, apart from the one incident that has been adequately covered weeks ago now, there has been no problem.

MR JUSTICE HIDDEN: Yes. Well, I might invite you, Mr Parkins, to put into writing a form of direction with which you would be happy and I will see if I can approve it, but I certainly think that the fact that it is not unusual in cases of this sort sounds like what I meant to say.

MR PARKINS: I think your Lordship did, in effect, convey that message, if not those precise words.

MR JUSTICE HIDDEN: Thank you, Mr Parkins. Mr Maidment?

MR MAIDMENT: My Lord, our stance is neutral on this.

MR JUSTICE HIDDEN: Yes, very well. Mr Munday, I do not expect you to have any firm view one way or the other and, if you would like to leave the matter as neutral to you, I am perfectly prepared to hear that, or if you wish to express a view, I am equally prepared to hear that.

MR MUNDAY: Well, I will take overnight, if I may.

MR JUSTICE HIDDEN: I was hoping that we could do it this afternoon, but I will sit again after I have risen for about 15 minutes to allow you to think about it. That was the matter I wanted to raise. Let me tell you what I was thinking of doing in the last half hour. Normally in a case, in a summing-up, one puts forward some sort of summary of the prosecution case and the defence case, but this case is a case where the jury have listened with such complete interest and attention and where the speeches have been elaborate in attention to all details, very properly, and where everyone on the Monday of last week had the opportunity of having their hour to summarise their arguments, I felt that the situation might only be that I would give them a very brief few paragraphs on what the prosecution case is and what the defence case is.

I think to try and do more would lengthen this summing-up, which is already long enough or too long, inordinately, and would really be rather an insult to the jury's intelligence. Again, I will ask Mr Parkins first for his views.

MR PARKINS: Well, my Lord, if the issues are not well-defined in this trial, one could hardly imagine an occasion where they would be after all this time. Clearly, there are a few matters I would like to discuss with Mr Steele and, indeed, Mr Whomes, as I am sitting in the front row for both, as it were, this afternoon. There may be matters I would like your Lordship to consider but, apart from that, the briefest summary would suffice.

MR JUSTICE HIDDEN: Very well. Mr Maidment?

MR MAIDMENT: We would agree.

MR JUSTICE HIDDEN: Very well. I need not ask you, Mr Munday. Perhaps we could sit to deal with that matter at 9.30 tomorrow so that you can this afternoon see your client and we can deal with it quickly before the jury sit at 10. I am very anxious, if possible, to get them out by 10.30 tomorrow. Any matters now, I think, that counsel wish to raise?

MR PARKINS: There is one other matter, my Lord. It is in relation to what your Lordship said to the jury about their approach to the evidence of Jacqueline Street.

MR JUSTICE HIDDEN: Yes. I have checked the date of my copy of the direction and it is February of last year. I think it to be the latest direction.

MR PARKINS: I looked last night at my bundle and I do not have that. I know not why. It matters not. My Lord, our concern is this. May I express it in a few short sentences. Using, we would respectfully submit, the word "sure" in the context is saying to the jury that they can rely upon Jacqueline Street's evidence if they are sure it is reliable. Of course, the jury heard the word "sure" when your Lordship was dealing with the standard of proof and the burden of proof. It may, in our respectful submission, suggest that the defence in dealing with evidence of Jacqueline Street must not have made the jury sure about her evidence; in other words, that it is reliable before the jury could rely upon it. Of course, that would be the case if the Crown had led it because clearly the same burden would remain upon them as remains on the case throughout. They must be sure upon the evidence before acting against the interests of the defendant.

But if we had called her, if we had been in a position, as we wanted to, to put her live into the witness box, of course the jury would then first have to decide whether to accept or reject all or any part of her evidence in the normal way. They would not have to be sure about it to rely upon it. It would be enough, of course, if all they could say at the end of the day was, "Well, we have heard it. It might be wrong, it might not be. We cannot reject it." In other words, "If it is probably right, we can rely upon it", and the question of them being sure. The only difference, of course, is that the lady has not, for reasons we all know about, given evidence live, and our respectful submission this: because the sections on them are silent as to the position of the defence when this evidence is read, we ought not now to be in a worse position than if she had been called.

We say this: If it was intended that once evidence is read under section 23 and section 26 the jury had to the sure of its reliability, as opposed to at worst being unsure about it but not being able to reject it, then Parliament would have said so, provided, in our respectful submission, that your Lordship does, as you have, reminded the jury of the shortcomings, for want of a better expression, of such evidence, that the witness is not seen, not heard and therefore not tested, and reminded jury of any material differences in that evidence when compared with any other evidence called on behalf of the defendant, then it is a matter for the jury at the end of the day to say to themselves, "Well, might we be able to rely upon it?" and that is how we would invite your Lordship to leave it to the jury, instead of saying, in effect, only rely upon it if they are sure it is reliable. I know Mr Munday has views on the same theme, but that is our respectful submission.

MR JUSTICE HIDDEN: The difficulty is that I cannot believe that the Judicial Studies Board would have made an assumption that hearsay evidence under the Criminal Justice Act 1988 would only ever be sought to be put before the court by the prosecution.

MR PARKINS: Clearly not, because, as we know, there are provisions for both when one considers that in order to establish the requirements there is a different standard of proof standard between the prosecution and the defence and there clearly is. We have the authority, which we need not trouble you with unless we need to. If the prosecution seek to establish the requirements are satisfied under section 23, they must satisfy the court so that the court is sure about it.

MR JUSTICE HIDDEN: Yes, but it is only the balance of probabilities for the defence.

MR PARKINS: The balance of probabilities, we say, by analogy that once it is before the jury, the same argument should pertain.

MR JUSTICE HIDDEN: I was surprised to see they were not there when I looked.

MR PARKINS: I looked but there is no authority on this direct point, but we take comfort, as I say, my Lord, from the fact that the requirements have to be proved to the different standard depending upon which side seeks to rely upon the evidence. That is our submission.

MR JUSTICE HIDDEN: What do you think they should be told, if you are saying they should be told something else, that they have got to be sure that it is reliable? How would you draft the last sentence?

MR PARKINS: Might I attempt to do so, rather than voice it?

MR JUSTICE HIDDEN: Certainly. I do not think on the spot drafting extemporary is ever a good idea, especially not in committee but even more not in court. Yes, Mr Maidment?

MR MAIDMENT: In relation to your direction of character, I seek to address you on the second limb and to reply to your direction in relation to propensity and likelihood --

MR JUSTICE HIDDEN: Mr Maidment, just wait one moment, if you would. (Pause). I meant to give a direction in relation to the second limb; did I not?

MR MAIDMENT: My Lord, no.

MR MUNDAY: My Lord, no.

MR JUSTICE HIDDEN: I must have forgotten to turn over. I intended to give the direction down as far as his age, which I had specifically asked for, 45, and to deal with the characteristics of his occupation and lifestyle and what I had intended to say, certainly, was, if you have a copy of the standard direction: "In the second place, the fact that he is of good character now may mean he is less likely than otherwise might be the case to commit this crime now. I have said these are matters to which you should have regard in the defendant's favour. It is for you to decide what weight you give to them in this case and in doing so you are entitled to take into account everything you have heard about the defendant, including his age," of 45, "his occupation and his lifestyle." I did not intend to go on to give the later words.

MR MAIDMENT: My Lord, my recollection was that it was not read to the jury.

MR JUSTICE HIDDEN: It certainly should have been and I had every intention of doing so. If I did not, and I am sure you are right. I see Mr Munday nod, I will certainly allow that second limb in, which was the intention I always had.

MR MAIDMENT: Thank you.

MR JUSTICE HIDDEN: Have you anything to say, Mr Maidment, about the point I was on with Mr Parkins as to the evidence of Jackie Street? It does not technically affect you.

MR MAIDMENT: My Lord, it does not affect us. I have nothing to add.

MR JUSTICE HIDDEN: Thank you. Mr Munday?

MR MUNDAY: Your Lordship gave a Lucas direction in respect of Mr Steele, Mr Whomes and Mr Corry -- sorry, Mr Whomes and Mr Corry, and your Lordship said that the evidence from Sergeant Long was that Whomes had said fishing and then pleasure boating. Our recollection was that that was Mr Steele who said that.

MR JUSTICE HIDDEN: I do not think that is right, but I will check overnight because I remember a different officer saying something else. Equally, I remember Mr Steele in evidence saying that he had said nothing except his name.

MR MUNDAY: My Lord, the statement is page 440 in your Lordship's bundle.

MR JUSTICE HIDDEN: I have not got them in court, I am afraid.

MR MUNDAY: I can find my copy.

MR JUSTICE HIDDEN: I was only giving a Lucas direction deliberately for those two defendants.

MR MUNDAY: I addressed the jury upon that basis. (Pause).

MR JUSTICE HIDDEN: Yes, I am grateful for that. I have not got in court my notes now of PC Crick and Sergeant Long, but I will look at them when I adjourn in a moment to see what my note was. Mr Parkins, have you anything to say? I accept it if you do not.

MR PARKINS: No. May I check our note, my Lord. *It certainly appeared on the face of Mr Long's statement that that was what Mr Steele said, in those terms, but I would like to check it.

MR JUSTICE HIDDEN: Yes, of course. Is there anything else we need to deal with, Mr Munday?

MR MUNDAY: My Lord, there are, I think, three small matters. I spoke to Mr Etherington earlier. He raised two matters with me. Your Lordship said that Mr Whomes indicated that prior to his trip to Ostend he had caused someone to check on his behalf with Customs as to what the permissible amount was.

MR JUSTICE HIDDEN: I do not think I did say that in the summing-up.

MR MUNDAY: Your Lordship did, I think. Your Lordship indicated that he has first said, "Gordon had asked", and then said that he had asked Scarlett. In fact, the slip that he made was that he said --

MR JUSTICE HIDDEN: No, I am fairly sure it was checking on ferry times.

MR MUNDAY: Well, in that case I am mistaken. My Lord, the other matter that I think was raised --

MR JUSTICE HIDDEN: I can check that again too. My recollection as to what he said about Gordon was that it was Scarlett who checked his ferry times. If he had said Gordon, then that was a slip.

MR MUNDAY: My Lord, it was Gail. He was talking about Gail. In chief he had said Gail. I cross-examined him and he said Scarlett, and if he said Gail it was a slip, but we can check up on that, my Lord.

MR JUSTICE HIDDEN: This may be again a question of using initials in the note. G to me at that stage meant Gordon.

MR MUNDAY: The other matter is this: Your Lordship, I think, said that in relation to what Mr Whomes himself had said about the 18.59 call, his case was that he had got through in order to tell Nicholls that he had got the car. His case was that he had not got through, but the purpose of the call was to say he had picked up the car.

MR JUSTICE HIDDEN: Yes, that is right. The purpose of the call was what he was ringing for, but he did say that there was only one call and he did not get through.

MR MUNDAY: He did not get through?

MR JUSTICE HIDDEN: He did not get through.

MR MUNDAY: My Lord, it may well be that I misheard. I heard it as "did get through" rather than "did not get through."

MR JUSTICE HIDDEN: No, I may have said that, certainly, but my recollection is that his evidence was that he did not get through.

MR MUNDAY: He said, "I did not get through." The other --

MR JUSTICE HIDDEN: I did draw the jury's attention to the length of the call. I have indicated that that information would be unlikely to be in that time limit, so that certainly needs a correction. I have a view that the evidence certainly was that he said that he did not get through. I do not think I reminded the jury in relation to your former point on behalf of Mr Etherington of what he said about Scarlett checking with the Customs as to £15,000. I could not find that in my note, but I knew it was there, but I was concerned that I did not remember it being put to Scarlett as something that she had been asked to do and had done.

MR MUNDAY: My Lord, I think in fact it was put to her. My recollection is that it was put to Scarlett and she said --

MR JUSTICE HIDDEN: Perhaps you could check that too because I do not think it was, but in a case with the detail of evidence that this case has it is not surprising that we have slightly different views.

MR MUNDAY: The only final matter is this: Your Lordship will be aware of the evidence of Mr Burn that the shotgun wounds did not display any tell-tale sign of being caused by a sawn-off weapon. Your Lordship will also recall the expert's evidence in relation to the inability to saw down a pump action shotgun because you saw down the passage in which you store the shells, the upper slide.The evidence of Jasper was not just that it was a pump action shotgun, but that it was a sawn-off pump action shotgun, and your Lordship in dealing with his evidence, and it was an important point the Crown raised, conceded that Jasper had said it was a sawn-off pump action shotgun, which was wrong, it cannot be, and your Lordship only dealt with his evidence today by saying that it was a pump action shotgun, which we see in the plan, when in fact he said, and I invite your Lordship to look back in the note, it was a sawn-off pump action.

MR JUSTICE HIDDEN: Yes, anything further, Mr Munday, I am grateful.

MR MUNDAY: My Lord, no thank you.

MR JUSTICE HIDDEN: Mr Parkins?

MR PARKINS: Just this: I agree the Jasper said it was a sawn-off gun, but I think Mr Munday is wrong in saying that Mr Burn's evidence was that a pump action could not be shortened. It presented difficulties, was his evidence in my recollection. It certainly was not that it could not be done. It is not as convenient as sawing off an ordinary gun and that follows, but it was not that it could not be done. Can we check that?

MR MUNDAY: I think the point Mr Burn was making was that there is no point in sawing off one or two inches of a shotgun that is pump action.

MR JUSTICE HIDDEN: The only valid point of sawing-off is to make a weapon small enough to be carried and you cannot saw off to achieve that effect enough of the barrel, as I understand it. That is what he was saying.

MR MUNDAY: My Lord, yes. My learned friend is technically correct that you can saw it and shorten it but that is not, with respect, the point to say that, in my submission.

MR JUSTICE HIDDEN: Well, let us then check our notes and I will sit again at four o'clock. That should enable us to put right as much as we can tonight.

MR PARKINS: My Lord, our difficulty is the obvious one of time involved. There are certain points I would like to check with Mr Steele tonight, as opposed to tomorrow morning, in case their transport is late, as it has been the last two mornings. Could I do that before I attempt my drafting exercise?

MR JUSTICE HIDDEN: Yes, do. I will sit again at whatever time this afternoon you have had time to go down and come back up.

MR PARKINS: Thank you, I am very grateful.

MR JUSTICE HIDDEN: But that is said with elastic on both sides. Very well.

(Brief adjournment).

MR PARKINS: My Lord, so far as the directions to the jury protection are concerned, I think we all prefer that the original format, as it were, was adhered to. I cannot find in the time available the draft that we put in months ago; no doubt overnight we can. I would rather not adopt a different form of words now.

MR JUSTICE HIDDEN: No, I approve of that. It may be that I can too but I will rely on you, Mr Parkins.

MR PARKINS: Thank you very much, my Lord, I am grateful. May I now deal with a suggested direction in terms of the evidence of Mrs Street. Mr Munday has reduced it to writing. We have discussed it. Could it be, my Lord, perhaps something along these lines. It is in rough form at the moment. The jury to be reminded, of course, that the burden of proving the case is on the Crown. Therefore, when considering the contents of Mrs Street's statement and if, having considered the limitations that your Lordship has mentioned, namely that they had not seen her, they had not heard that evidence cross-examined to and, indeed, having considered any conflicts that they, the jury, found between her statement and any other evidence in the case, the jury feel they can rely upon it, or any of it, then they may do so, without reference to being sure or any day degree of certainty.

MR JUSTICE HIDDEN: I was coming a similar route by the use of the words "of the view", but I will certainly consider that wording. If it could be reduced into writing for me, I would be grateful.

MR PARKINS: My Lord, it can be. It is a rough draft. It can be tidied up. My Lord, there are a few matters only that we would invite your Lordship to consider dealing with before the jury retire. My Lord, we all know, and of course the clients know, in a case such as this of length and complexity and with a summing-up as long as it has to be every point cannot be covered. There are some points that both Mr Whomes and Mr Steele would ask your Lordship to consider. My Lord, may I make so bold as say this, given the time. We are to sit at half past nine. For personal but professional reasons I would like to leave the building at half past four to go to Belmarsh, with all that that involves. I wonder if perhaps we can deal with this aspect of the matter in the morning, unless I can simply now outline the points and leave the discussion.

MR JUSTICE HIDDEN: How many points are there?

MR PARKINS: There are four on behalf of Mr Whomes. There are half a dozen or so on behalf of Mr Steele -- perhaps eight.

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