No: 199904642/Y2
Neutral Citation Number: [2000] EWCA Crim 3549
IN THE COURT OF APPEAL
CRIMINAL DIVISION
 
Royal Courts of Justice
The Strand
London WC2

Monday 3rd July 2000
 
B E F O R E :

LORD JUSTICE POTTER

MR JUSTICE HIDDEN

and

HER HONOUR JUDGE GODDARD QC
(Sitting as a Judge of the CACD)

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R E G I N A

‑ v ‑

LESLIE WHEELER

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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Tel No: 0171 421  4040   Fax No: 0171 831 8838
(Official Shorthand Writers to the Court)
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MR J DUNN‑SHAW appeared on behalf of the Appellant
MR C GRATWICKE appeared on behalf of the Crown
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JUDGMENT
Monday 3rd July 2000
1.	LORD JUSTICE POTTER:  On 25th June 1999 in the Crown Court at Croydon before His Honour Judge McHale and a jury, the appellant was convicted by a majority of 11 to 1 of being knowing concerned in the fraudulent evasion of a prohibition on the importation of a controlled drug, approximately 1 kilo of cocaine. On the same date, he was sentenced to 11 years’ imprisonment.
2.	He appeals against conviction with leave of the Single Judge.
3.	The short facts were that the appellant was stopped at Gatwick Airport and 100 ‘swallower’ packages of cocaine were found in two socks in a briefcase within his holdall. The swallower packages were in the shape of capsules which were essentially a large version (that is to say some one‑and‑a‑half inches long) of the canister or bomb‑shape capsules which are used for the administration of antibiotics and other medicines.
4.	The appellant was arrested and taken to a room to be detained later. Four further packages were found in that room and a further 17 packages were later excreted by the appellant on two supervised visits to the toilet.
5.	The total amount of powder imported was 994 grammes, or 811 grammes at 100% purity.
6.	The issue at the trial was simply whether the appellant knew he was carrying the drugs.
7.	A slightly longer summary of the evidence is as follows. Mr Marsh, a customs officer, had stopped the appellant at Gatwick Airport. The appellant said he had been to Montego Bay in Jamaica for two weeks for the purpose of looking to set up a fish and chip shop. He stayed in a hotel. He worked in Lincolnshire as a chef. No one had given him anything to bring to the United Kingdom.
8.	Mr Marsh searched the appellant’s suitcase and holdall. Inside the holdall was the briefcase we have mentioned in which there were two socks, which appeared to contain numerous small packages. Asked what they were the appellant said “stones”. The officer then got them out and examined them and found them to be the swallower type packages which usually contain drugs. He cautioned the appellant and told him he was arrested. The appellant said, “Yes, please don’t do this to me.”
9.	Mr Marsh interviewed the appellant, who had seen a doctor before the interview. There is some confirmation of the fact that the appellant was somewhat drowsy in interview but we shall refer to that interview more fully below. It was conducted in the presence of the appellant’s solicitor.
10.	The appellant was later taken to the police station to be charged and, in the room where he was placed and waited for a time, three taped packages and a plastic knife were found to have been hidden in a pillow case.
11.	Later Mr King, another customs officer, took the appellant to the special toilet facility and, after the appellant had used the toilet, Mr King retrieved 12 of the packages. A further five packages were retrieved after a further visit to the toilet by another customs officer. Forensic evidence was given in relation to the purity of the cocaine.
12.	There was also evidence from a Police Constable Smith, who confirmed that on 2nd July 1998, about 8 months before the offence, he had been approached by the appellant, who said he had some information about drug offences and, in particular, was saying that he had been approached to act as a courier to bring cocaine from Jamaica but had refused. The appellant was saying he was under pressure to do this to clear his debts to his dealer. Police Constable Smith said that he told this appellant not to get involved in the importation of drugs as such action would be illegal. The officer had a further meeting with him when the position was explained to him in some depth.
13.	In interview, the appellant agreed the notes of arrest which had earlier been made by Mr Marsh and whilst they were being read out, the officer specifically asked if the appellant was all right as he appeared to be drowsy.
14.	The appellant said that the packages found contained cocaine. He was asked how many he had swallowed ‑‑ we should say, at this stage, he had been X‑rayed at some point and observed to have packages within him. He said he did not know and he thought he had produced them all. He said he had brought the cocaine here out of desperation and fear because he owed people money. He did not think it advisable to give the names of those threatening him because he was in fear for his family. He was given money to pay for the ticket. He said he owed £12,000, both to an individual and banks and building societies; it was drugs which had led him into debt.
15.	He explained that he was not going to be paid for bringing the drugs in, the payment was simply that he be left alone by a group of individuals of whom he was in fear and did not name.
16.	That was the position, broadly, after the interview, at which there was no denial of knowledge that the appellant was importing cocaine and no  suggestion that the cocaine had been planted on him, in particular, in relation to the socks.
17.	As to the drugs which he had swallowed and were later retrieved, he explained that back in Jamaica, before he left, he had been given packages to swallow at 8.00 am in the morning. He had started straightaway and continued for some time, but once the man had given him the packages had left, he had started to spew them backup gain. He said no packages had passed right through his system and he thought he had produced all the packages in the sense that he had vomited them up in Jamaica. However, he did not make clear in interview, nor was it really pursued by the customs what he said had happened to the packages which he had vomited up.
18.	He elaborated considerably when it came to giving evidence in his defence. But, first, it is right to say that prior to trial, a statement of the defence case had been served by his solicitors. The relevant passages at paragraph 1 of that statement were as follows:
“(b) The accused acknowledged that he was aware of the drugs concealed internally but maintains that those drugs were only imported into the United Kingdom as a result of duress.
(c) the accused denies any knowledge of the drugs found to be contained within his luggage.”
19.	That essentially was the packages within the socks. 
20.	In his defence, the appellant gave evidence that he had started taking heroin and cocaine in his late twenties. He got his drugs from one McDonnell. It had got out of hand and McDonnell wanted him to buy more and more and although he did not want to get involved, the matter spiralled. He said on one occasion McDonnell come round to his flat and threatened him with a gun if the appellant did not pay some monies outstanding in 24 hours. He said he would put a bullet in him. On that occasion the appellant had contacted the police. However, he said he left Birmingham and gone away for 8 years, not seeing McDonnell. However, on his return to Birmingham, some three or four years earlier, he had bumped into him and three of his associates in the street who had knocked him about and called him a  ‘grass’ over the incident in the flat following which he had gone to the police. He had been badly beaten up. He was accused of never paying money which he had owed and he was generally harried by McDonnell and his associates thereafter. He spoke of a number of occasions on which he, and on occasions his car, received violence from McDonnell or his associates.
21.	Moving to the events in question. He said that McDonnell asked him to go to Jamaica to bring drugs back. Then if he did, he would be left alone. He said  he did not want to. He spoke of having told the police officer, Police Constable Smith, at his local station about the matter, and also having other conversations about the possibilities of giving information. He also had spoken to a Detective Sergeant and told him that his family had been threatened.
22.	After an occasion when he said he had been sprayed with lighter fuel, he feared for his life and he went on a cheap holiday to St Lucia and, following his return, he had been telephoned by a man, whom he met by arrangement, who said things would have to be sorted out or it would get worse and worse. The man said he would supply a ticket and drugs, if the appellant went to Jamaica for him, which in fear the appellant agreed to do.
23.	He said that in Jamaica a room had been reserved in a guest house where the drugs were delivered on the morning of the flight home by the Jamaican man to whom we have already referred. He told the appellant to swallow the drugs. The appellant swallowed most, if not all of them. Those he did not swallow were in his pockets.
24.	The man went to the airport where they met two other men, and it was at the airport that the appellant was sick and thought he had vomited up all the packages. He washed them and put them in some plastic. He said one man was queuing with his bags. He gave the packages back to the men outside and said he could not do it. The man with the packages left the terminal and the man who delivered them tried to calm the appellant down. Eventually the man with the packages returned and said  ‘Let him go, he’s not going to do it.” The appellant went and checked his luggage. He said he had no packages with him. When he was stopped at Gatwick, he was not worried he was importing any drugs of which he had knowledge until he saw the socks in his baggage, which he had not seen before, and were not his. When he said, in interview “Please don’t do this to me” it was not so much an observation in recognition of guilt, as a remark addressed to himself, realising what was or must be in the socks.
25.	He said he still did not know he had drugs in his stomach, having believed he had spewed them all out in Jamaica. He said that when he was interviewed he had taken Prozac and felt ill, confused and tired. He generally accepted the accounts of what had actually been said at interview. He said he did not tell the customs about threats or being beaten up as he expected to be interviewed again. He accepted that he did not mention, at the time, that he was ignorant of the drugs  being in his socks. He said on seeing the socks he knew there must be drugs inside.
26.	So the effect of the evidence was, that in interview, he gave answers which recognised the situation; that is to say of having been caught red‑handed importing the drugs but without making clear that at the time of the importation he did not believe he had them. He nonetheless maintained in evidence that was indeed the position. He was unaware that he had any drugs left concealed internally and was quite unaware of the drugs and the socks.
27.	Leaving aside the contents of the defence case statement, the defence was conducted by counsel on the basis that nothing which was said by the appellant in his evidence was actually contradictory of what he had said in interview. While it was accepted he had not made clear or suggested on arrival that he was ignorant of the presence of the drugs, (a) he had made clear he had vomited up the drugs which he had swallowed before his departure, and by implication (albeit not expressly), had not brought any of them with him; and (b) he had not denied knowledge of the drugs in the socks, because he simply dealt with the questions of the customs at face value and on the assumption that he had in fact imported drugs, the question of knowledge not being an issue.
28.	Unhappily for the appellant, what was said in the defendant statement case and, in particular, the express acceptance that he was aware of the drugs concealed internally was, of course, at odds with that defence.
29.	It was also unfortunate for the appellant that counsel who represented him at trial had come in at short notice and, before the trial had started, had lacked the time or opportunity to discuss the discrepancy with the appellant or obtain his instructions on it. This is a case where, in the light of the grounds of appeal, a waiver of the applicant’s privilege and a full account of the matter has been obtained from his then counsel and solicitors, who do not appear on this appeal.
30.	It is now clear that the first paragraph of the defence statement of case was not only contrary to the proof of evidence of the appellant and the evidence which he gave, but also contrary to his original instructions given to his solicitors when they first saw him in prison. The partner of the solicitors’ firm has himself so acknowledged and the prosecution do not dispute it.
31.	It is also clear from the statement of counsel who appeared below that, while she discussed at length the discrepancies between the interview and the proof of  evidence, she did not discuss the statement of case before the trial started. She did so prior to the appellant giving evidence, however, and when advised by him that the statement was wrong, she simply advised him that, if it was put to him, he should state that it was a mistake.
32.	Moving now to the position of the Crown, because of the form of the interview and the statement of defence case prosecution counsel indicated to defence counsel, following the appellant’s evidence in chief, that he intended to cross‑examine the appellant on the discrepancy.
33.	Defence counsel raised no objection. Indeed, he has indicated in her statement that she considered she had no right to be object, as the obligation to serve the statement lies upon the accused personally, under section 5 of the Criminal Proceedings and Investigation Act 1996 (see section 5(5) and (6)), and in this respect a solicitor serving such a statement plainly acts on the accused’s behalf and may, in the ordinary course, be assumed carefully to have checked his client’s instructions before doing so.
34.	We consider that defence counsel was correct in that respect (see R v Tibbs unreported, 9904109/Y4, transcript, 28th January 2000), in which Beldam LJ  stated at paragraph 7:
“In our view section 11 does not disallow or require leave for cross‑examination of an accused on differences between his defence at trial and his defence statement. The section precludes comment or invitation to the jury to draw an inference from the differences unless the court gives leave.” 
35.	That last observation is a reference to section 11(3) and section 11(5) of the same Act, which provide:
“(3) Where this section applies (a) the court or, with the leave of the court, any other party may make such comment as appears appropriate; (b) the Court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned...
(5) A person shall not be convicted of an offence solely on an inference drawn under subsection (3).”
36.	The cross‑examination of the appellant on the point was forceful and apparently effective. It was had been by prosecuting counsel to the end of a cross‑examination in which it does not appear that he had secured significant admissions in relation to any of the appellant’s evidence in‑chief.
37.	The relevant extracts are as follows. At page 53:
“Q. Are you telling this jury that you were not aware of the drugs inside you at the time you arrived in this country?
A. I am saying that, yes, and it’s the truth. I don’t know why I wasn’t aware of them. I promise I was not.
Q. Have you always maintained you were not aware of the drug internally.
A. Yes.
Q. Always?
A. Always. I told Mr Marsh I didn’t believe I had any more drugs in me.” 
38.	After introducing the defence statement and after quoting paragraph (b), prosecution counsel asked:
“Q. You told this jury not three minutes ago that you have always maintained that you did not know you had drugs inside you when you came to the United Kingdom?
A. I didn’t at the time. This is dated on 6th April. After I said this I did know.
Q. The document there sets out your case, your answer to the prosecution case. That document says that you were aware of those drugs being in there. You are now telling us that you were not aware of drugs being inside you. Which is right?
A. When I arrived at Gatwick airport I honestly didn’t believe that I still had drugs inside me. I did not.
Q. Forget for the moment Gatwick Airport. That is what you tell us now. Is the position therefore that what is contained in that defence served on your behalf is wrong?
A. It was right on 6th April.” 
39.	That answer may require a little explanation, but it was agreed before us that it was a reference to the fact that the appellant was observing that by 6th April he was aware that he had had drugs inside him, rather than  making any admission as to the contemporaneous state of affairs.
40.	Shortly afterwards the judge took up the questioning. He said:
“Counsel is asking you whether that is wrong, your defence statement is wrong.
A. Yes. It’s a mistake.
[PROSECUTION]:  A mistake?
A. Yes, sir.
Q. All right. Mr Wheeler, I am suggesting to you that you have come before this jury and told a complete pack of lies. You voluntarily went to Jamaica. There were not threats. You voluntarily brought these drugs into the country, well aware that you were so doing.” 
41.	That was, of course, a rolled up question, referring to the various aspects in respect of which it was suggested the appellant was lying, but it came hard on the heels of the point made about the defence statement, and finished with the proposition, that the appellant was well aware that he was buying in the drugs. The appellant said again:
“A. No. That’s not true. It is not true, sir.
Q. I suggest to you that at the end of the day what you have said in relation to the circumstances is a complete pack of lies?
A. No. That is not true.” 
42.	That was in fact the last answer given in cross‑examination. Some minor matters were dealt with in re‑examination and that was the end of the evidence.
43.	Prosecution counsel did not seek the leave of the court to comment on the evidence in his final speech. Nor did he do so. Defence counsel also felt that she should leave well alone and said nothing. Unfortunately, neither counsel nor the judge, before speeches or at any rate before the summing‑up, sought discussion of the matter in relation to any possible direction required for the jury.
44.	What happened thereafter was that the judge commented on the discrepancy twice in his summing‑up. Once, early on, when summarising the opposing way in which the cases were put. He said, at paragraph 9E of the transcript:
“His defence statement, which was provided to the prosecution and the court by his solicitors, conceded that he knew that he had drugs internally, but that, Mr Wheeler said, was a mistake.” 
45.	The second reference appeared late in the summing‑up, at 34G. It was almost at the end of the summing up, the judge having rehearsed the evidence in chronological order, finishing with the end of prosecuting counsel’s  cross‑examination. The judge noted the reply of the appellant as follows:
“I was unaware of the drugs inside me. I have always maintained that. He was then shown the defence statement of 6th April. It says I was aware of the drugs concealed internally but maintained that the drugs were only imported in the United Kingdom as a result of duress. That is a mistake. I haven’t told lies.” 
46.	In arguing this appeal, Mr Dunn‑Shaw, who did not appear below, submits as follows. Out of a situation in which there is essentially no one to blame except the appellant’s original solicitors, a most unfortunate state of affairs has developed. The very crux, and essentially the only issue, in the case, was whether or not the appellant was aware of the drugs which he was carrying, (a) in the socks, and (b) within his body. While he had said nothing to deny it in interview, and appeared to accept guilt by the general line of his answers, he said nothing which was directly in conflict with his version at trial, the question of his knowledge of the presence of the drugs, never having been directly addressed at the interview.
47.	On the one hand, it was assumed he had knowledge and therefore not explored by the customs. On the other hand, this matter was never raised by the appellant who was not aware, or who may not have been aware that lack  of immediate knowledge amounted to a defence in the circumstances, and who was in any event, according to him, ill and confused, his drowsiness being confirmed by the customs.
48.	The appellant’s credibility and, associated with it, his consistency as a witness were therefore crucial. In that respect the inconsistency between on the one hand his statement of defence case, which could be assumed to have been considered at leisure and authorised by him, and on the other hand his evidence, was a matter crying out for explanation and some guidance to the jury. This it did not receive, either from defence counsel, because the point having come up was best left alone from her point of view; or from prosecuting counsel, who could not comment without leave. Nor did the judge deal with the matter other than by the two references which we have quoted.
49.	Indeed it appears that judge, lacking knowledge of the solicitor’s accepted error, decided that a simple reference to the conflict, without further guidance, would be the best course.
50.	We consider, however, that the judge would have been wise to raise the matter with counsel for discussion, in what was a delicate area. Given that the prosecution did not ask the judge for leave to comment,  that is to say, did not on consideration seek to turn the matter to the appellant’s disadvantage, we consider that the judge would have been wise to advise the jury to accept the appellant’s assertion that a mistake had occurred. Without such a direction we think it highly likely, if not inevitable that the jury took the matter into account, against the appellant.
51.	We are less concerned to criticise the judge, however, than to record our concern, that, by reason of a solicitor’s error, the essence of the appellant’s defence may well have been prejudiced. The case was, of course, a strong one, but the very core of it was his credibility and it could not fail to be affected by the matters with which we have dealt. Consequently, we do not feel able to say that we consider the conviction safe. We would therefore allow the appeal and consider that the matter should be retried.
52.	By way of postscript, we would observe that, quite apart from the absence of any statutory requirement, there seems to be no recognised guidance or other specific requirement to the effect that defence statements should be signed by the defendant as an acknowledgment of their accuracy, rather than being permitted simply to be served by solicitors on a defendant’s behalf, without taking that step.
53.	It seems to us, and this case is a good illustration that service of an unsigned statement can give rise to unfortunate consequences in the event that a defendant gives evidence which departs from the content of his defence statement and, when questioned about it, asserts that the matter arises as the result of a mistake. If a signature were required to be obtained, and we think that it must be wise in all cases to obtain one, then it would obviate error and dispute of the kind which has occurred in this case.
54.	We allow the appeal and quash the conviction, and direct that a fresh indictment be preferred. The appellant being re‑arraigned on the fresh indictment within two months. Are there any other different submissions?
(Submissions re: Retrial)
55.	LORD JUSTICE POTTER:  For the reasons I have indicated, we do think it is an appropriate case for retrial, and we direct that the indictment be preferred, the appellant being rearraigned within 2 months but we would direct that the matter should be fixed for trial at a date convenient to defence counsel. That will at least enable the defendant to make sure he gets counsel of his  choice this time.
56.	MR DUNN‑SHAW:  I am obliged. May I ask that legal aid be granted for fresh solicitors and junior counsel.
57.	LORD JUSTICE POTTER:  Yes. He remains in custody presumably without any further order.
58.	MR DUNN‑SHAW:  I make no application in that respect. Thank you.
59.	LORD JUSTICE POTTER:  The retrial will be at Croydon Crown Court.
60.	MR DUNN‑SHAW:  There is no reason why I could urge against that.