Case No: 200203475D1
Neutral Citation No: [2003] EWCA Crim 3644
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MAIDSTONE CROWN COURT
HIS HONOUR JUDGE CROFT QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Date:16th DECEMBER 2003
Before:
LORD JUSTICE MANTELL
SIR EDWIN JOWITT
and 
THE RECORDER OF MANCHESTER
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 	REGINA 	 	
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 	ANTHONY CLIVE WALTON 	 	
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Mr J Turner QC (instructed by Registrar) for the Appellant
Mr S Russell-Flint QC (instructed by CPS) for the Crown
Hearing dates: 25th November 2003
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JUDGMENT
Lord Justice Mantell: 
Introduction.
1.	This is the appeal of Anthony Clive Walton, brought with leave of the full court, against his conviction in the Maidstone Crown Court on 22nd May 2002 of being in possession of cannabis resin within intent to supply to another. Should that appeal fail, Walton also has leave to appeal against his sentence of fours years imprisonment imposed on 28th June 2002. 
Background.
2.	In July 2001 the appellant was under surveillance by the Kent Police force. On the 26th at about 11:00 a.m. he was seen to pick up a man called Lysser in his Cherokee jeep before heading towards London. As was to emerge later, during the journey there were a number of telephone calls from the appellant to a man called O’Callaghan, and at least one from O’Callaghan to the appellant. Eventually the Cherokee jeep arrived in Kilburn where the occupants met up with O’Callaghan who joined the others in the jeep. By this time the appellant was driving, O’Callaghan was in the front passenger seat and Lysser in the rear. Thereafter the jeep was driven to a business centre and the three occupants were seen to be in conversation with a number of men one of whom was driving a Toyota Previa. Then the jeep and the Previa drove in convoy to Oliphant Street in West Kilburn. O’Callaghan got out and went to number 121. He returned after about five minutes carrying two plastic bags which were placed in the back of the jeep. The appellant and Lysser drove off . O’Callaghan, only identifiable at this stage as wearing a white shirt, remained behind. 
3.	At about 3:15 p.m. uniformed officers stopped the jeep on the M20 in Kent on the pretext that the vehicle had been stolen. The appellant agreed that the vehicle belonged to him, as did everything in it. The vehicle was searched and the two plastic bags recovered. They were found to contain 15 kilograms of cannabis resin. When asked about the drugs the appellant made no comment. The appellant and Lysser were arrested. Lysser was found to have a piece of paper in his possession which seemed to make reference to controlled drugs together with sums of money which could represent either their purchase or sale price. Neither the appellant nor Lysser responded to questions put to them in interview. 
4.	The drugs were valued at £26,550. The plastic bags from which they had been recovered carried the fingerprints of Lysser and O’Callaghan. 
5.	O’Callaghan was not arrested until January 2002. The police were to claim that they did not know his identity until October 2001. As with the others, O’Callaghan refused to answer questions. 
The Trial.
6.	Prior to the trial, which was due to take place before His Honour Judge Croft QC, the Crown sought an ex parte hearing in chambers in which to obtain approval for the withholding of certain material from the defence on public interest immunity grounds. The judge refused an application that ‘independent counsel’ should be instructed by the court to attend the hearing to represent the interests of the defence it being the appellant’s case disclosed for the first time in the Defence Statement that he had been set up by the man in the white shirt who was acting as a participating informant. Following the hearing in chambers the defence were supplied with a sheet of paper which amongst other things stated: 
"O’Callaghan was not an informant in this case and, so far as it is known, is not an informant."
Also disclosed were edited copies of applications and authorities for the surveillance of the defendant commencing in May 2001. Of course, it was obvious from the outset that the police had been acting on ‘information received’ but the identity of the informer was never disclosed to the defence.
7.	At trial the evidence for the Crown was largely that referred to earlier in this judgment, namely the observation evidence, the evidence of finding of the drugs, the fingerprint evidence, the evidence about telephone calls between the appellant, Lysser and O’Callaghan and the evidence of interviews. The appellant and O’Callaghan gave evidence. Lysser did not. As presaged by his defence statement the appellant was running a ‘cut-throat’ defence. So was O’Callaghan. O’Callaghan was the first to give evidence. He told the jury that he was a ticket tout and that the appellant had come to London to buy tickets for a show. That is why they had gone to the business centre. The visit to Oliphant Street was the appellant’s idea and it was the appellant who had asked him to go into number 121 and pick up the two plastic bags. He had not got back into the jeep because he needed to sell tickets for a concert that evening. In cross-examination on behalf of the appellant he denied being a participating informant or in any way involved in setting-up the appellant either with or without the knowledge and approval of the police. 
8.	In giving evidence the appellant also said that he had gone to London to pick up tickets for a show albeit a different one from that mentioned by O’Callaghan and the tickets were to be for Lysser and Lysser’s mother. He also intended to discuss the possibility of going into a ticket agency business with O’Callaghan and then it was his intention to take O’Callaghan back to Kent for contact with his granddaughter of whom O’Callaghan was the father. He also agreed that they had gone to the business centre to obtain the tickets and had been unsuccessful. It was O’Callaghan who had wanted to go to Oliphant Street where he had gone into number 121 on his own initiative, put the bags into the jeep and then made excuses for not joining the appellant for the return trip to Ashford in Kent. He told the jury that he had been too shocked to answer questions and that although he had not mentioned O’Callaghan by name in his defence statement it was obvious to whom he was referring. The appellant’s wife and daughter told the jury that O’Callaghan was indeed due to have contact with the appellant’s granddaughter that day. 
9.	In the course of summing up at p.3 of the transcript the judge directed the jury as follows: 
"There are two counts here, three defendants. You must give separate consideration to each count and separate consideration on count 2 to the cases of Mr Lysser and Mr Walton and reach independent verdicts in respect of all three defendants. That does not mean to say you look at a defendant in isolation because, of course, there is a mass of overlap of evidence in this case and indeed I will refer to it. It may be that were you sure that one person was guilty that might be strong evidence in relation to the other person but only evidence. Likewise, if someone is not guilty it may be strong evidence in support of another defendant but not conclusive."
That was, of course, the standard direction required to be given whenever the indictment contains more than one count or there is more than one defendant. However, at p.11 and p.12 of the transcript the judge made the following observations:
"I move now to what is really fact but it may be worth dealing with now because it is close to the law. As I have said, the guilt or otherwise of one defendant is not, in any way, conclusive of the guilt or otherwise of another defendant. It may be that it is a conclusion that one would reach. If, for instance, Mr Lysser was guilty then you might think it would be very difficult to see how Mr Walton would not have been part of it. Likewise, of course, if Mr Walton is guilty you will want to ask yourself what was Mr Lysser doing in the car? You will want to look at it from the perspective of a person, if he were guilty, if Mr Walton was guilty why would he want Mr Lysser there to know where he was collecting his drugs from, even if Mr Lysser did not know they were drugs, there is no need for Mr Lysser to be there? (sic)
As for Mr O’Connor (sic), if Mr Walton was guilty would he have used Mr O’Connor? (Sic) What is the point of Mr O’Connor collecting those items and putting them in the car? (sic) How does it help any enterprise? Because of course, if Mr Walton is guilty Mr O’Callaghan does not know what he is going to say were he to be stopped or ever arrested about the matter. He has no guarantee that Mr Walton will choose to make no comment when, within hours after them being put in there, he is stopped. Mr O’Callaghan does not know, even in the defence statement there was no mention of him, a man in a white polo shirt so why would Walton, were he guilty, want O’Connor involved? (I keep calling him O’Connor, O’Callaghan involved.) Why should he want to involve him? Why, if you looked at Mr O’Callaghan’s case, why would he want Mr Lysser there? He can say to Mr Walton, look, I wonder if we can just have a personal chat. I am sorry about this Mr Lysser, see you back at the Priory in half an hour. If you start looking at it from one defendant’s point of view if he is guilty it may be that it becomes very very difficult to see how it could be that the prosecution are wrong when they say that all three people engaged in the day in the transfer of the drugs from Oliphant Street into the jeep."
The judge returned to the theme at p.25. After advising the jury that the piece of paper found in Lysser’s possession was not evidence against the appellant he went on to say:
"As I say there is no evidence to show that he knew about it. Of course, if Mr Lysser is guilty then that may be evidence, indeed, very strong evidence, against Mr Walton. When you are considering Mr Walton’s case you do not look at this document. You do so, however, you may think with considerable care, in respect of Mr Lysser’s case."
 
10.	At another place in the summing up the judge dealt with the fact that the appellant had not named O’Callaghan in interview or the defence statement. This is what he said at pp. 8 and 9 of the transcript: 
"As to Mr Walton and Mr Lysser, you heard they were interviewed. They made no admissions and therefore no inferences should be drawn in that case. They made no admissions but you heard from Mr Walton, he volunteered it, that in fact he went no comment in interview. For matters I am not going to trouble you with I have ruled that the prosecution cannot ask you to draw any inference from those decisions. However, of course, that does not prevent Mr Traversi (we interpose, counsel for O’Callaghan) in doing so. He is entitled to point out, as is the fact, that at no time in the road, in interview, in defence statements or whatever was there any allegation made against him. Mr Walton did not mention his name to the police or prosecuting authorities at any stage."
11.	That is all that we need to say about the trial. 
The Appeal.
12.	Shortly stated the three grounds of appeal against conviction for which the appellant has leave are: 
1. that the learned judge should have acceded to an application to appoint independent counsel to look to the appellant’s interest during the PII hearing;
2. that the trial judge misdirected the jury in suggesting that a finding of guilt against any one of the three defendants might be evidence of the guilt of the others;
and
3. that the trial judge misdirected the jury with regard to the appellant’s failure to mention in interview that he had been set up by O’Callaghan.
13.	Before turning to those grounds, however, we ought to record something of the history of the appeal itself. On 13th November Mr Russell-Flint QC came before the court on an ex parte application of which notice had been given to the appellant’s advisors to seek the court’s ruling as to what, if any, further disclosure should be made to appellant prior to the appeal hearing. Mr Turner QC for the appellant was unable to attend to make any application of his own but did make certain submissions in writing. Broadly those submissions were that the court should not look at any of the undisclosed material lest it should lead to an unconscious bias against the appellant and that in any event the court should do that which the trial judge had failed to do, namely to appoint independent counsel to look after the appellant’s interests during any ex parte hearing there might be. Unsurprisingly, those submissions arose out of a review of various decisions in the European Court of Human Rights culminating in Edwards and Lewis v. The United Kingdom July 22, 2003. As it happens, by the time the submissions were received at least one member of the court had seen the material, something which effectively removed the basis for the first submission. Moreover, by the time of the hearing this court, differently constituted, on 16th October 2003 had given guidance with regard to the proper course to be adopted in circumstances such as the present. Accordingly the court proceeded to hear the PII application without first appointing independent counsel and gave certain directions as to what further material should be made available to appellant. So far as Mr Turner’s applications were concerned the court gave a short and necessarily bland judgement which the court ordered to be transcribed and made available to Mr Turner. It would, of course, be inappropriate to add to that ruling here but for the sake of convenience it is appended to this judgment. We simply content ourselves with saying that in ruling as it did the court was influenced by the guidance given in the authority already mentioned, namely R v. H and C neutral citation number 2003 EWCA Crim 2847, a judgment delivered by this court presided over by the Vice President. 
14.	No doubt recognising the difficulty placed in his path by R v. H and C Mr Turner began by inviting the court to adjourn the appeal until after that case has been considered by the House of Lords. We refused that application for reasons given at the time and which are which are set out in a second appendix to this judgment. Mr Turner then submitted that the court, having seen material which might be detrimental to the appellant, ought to recuse itself. That application was also refused. Each member of the court took the view that not being called upon to make any finding of fact or any determinative ruling it was perfectly possible to guard against the kind of insidious prejudice referred to by Mr Turner in his submission. Also it occurs to the court that it is very often necessary for the Court of Appeal as well as the trial judge to be acquainted with the undisclosed material in order to protect the interests of a defendant or appellant as the hearing proceeds. Mr Turner then renewed his application for independent counsel or, if preferred, a special advocate to be appointed. He sought to argue that this was one of the exceptional cases referred to in R v. H and C. We are wholly unpersuaded that there is anything exceptional about the facts in this case and, of course, we have the advantage denied to Mr Turner of knowing what is contained in the undisclosed material. 
15.	We turn then to the grounds of appeal themselves. 
16.	The first ground regarding the refusal by the trial judge to appoint independent counsel fails for reasons of which we have already made mention. It was the case here that counsel was available who indicated that he would be prepared to act pro bono but we consider that the judge was wise not to countenance such a novel procedure where there was no apparent need for it. It has to be remembered that when a special advocate is appointed in those tribunals where Parliament has made provision for such an appointment it is usually necessary for that counsel to remain throughout the proceedings. Accordingly the first ground of appeal fails. 
17.	The second ground of appeal concerns the comments made by the judge as to the effect a finding of guilt against one of the three might have in the case of the others. It is, we think, important to note that the judge nowhere suggests that O’Callaghan’s guilt could provide any kind of support for the case against the appellant or Lysser. His remarks were confined to the impact a finding of guilt against Lysser might have on the case against the appellant and vice versa and that which a finding of guilt against the appellant might have in the case of O’Callaghan. Of course, it was always made perfectly clear that if the jury considered that the appellant and Lysser may have been set up by O’Callaghan as alleged then neither could be guilty of the offence charged. Otherwise, as it seems to this court the observations made by the trial judge were simply statements of the obvious. In commonsense either the appellant and Lysser were both guilty or not guilty and, although the judge gave the standard direction referred to, it appears to this court that on the defences as presented they stood or fell together. The comment that the appellant’s guilt might provide evidence against O’Callaghan is not, of course, something about which the appellant can complain. Taken with the very clear direction to consider the case against each defendant and each count separately we can see nothing amiss in the judge’s observations and the second ground of appeal fails also. 
18.	So far as the third ground is concerned the judge had to grapple with the not unfamiliar problem which arises when two defendants are each running a cut-throat defence. In this case, whereas the appellant’s failure to name O’Callaghan at an early stage could not be used against him in light of the judge’s ruling, it could nevertheless be deployed in the defence of O’Callaghan. We acknowledge that it is not necessarily an easy concept for a jury to grasp and judges must be careful to make the position clear. Here we think that some further exposition would have been beneficial. We consider it would have been appropriate to add at the conclusion of the passage from the summing up quoted in paragraph 10 of this judgment something on the following lines: 
"Although, as I have just said, you cannot use this fact in support of the case against Walton, it is something you are entitled to take into account in O’Callaghan’s favour in assessing, as against O’Callaghan, Walton’s evidence that he is not guilty and his suggestion that O’Callaghan has sought to exculpate himself by falsely blaming Walton.
When a defendant gives evidence against another defendant you cannot act on that evidence against that other defendant unless you are sure that it is true.
On the other hand if you think the evidence may be true but are not sure it is true, then, although you must not use it against the other defendant you will use it in favour of the first defendant.
There is nothing strange about that. It is simply a reflection of the fact that the burden of proof is on the prosecution, which means you can only act against a defendant on evidence you are sure about but you will act on evidence in favour of a defendant which you think may be true and which, therefore, the prosecution has not made you sure is untrue."
19.	However, although we think that the direction given might have benefited from amplification as indicated and the language could have been clearer we do not think that it can be stigmatised as a misdirection. Certainly, we are of the view that any shortcomings there may be are not such as to render this conviction unsafe which, as must be plain, was founded upon overwhelming evidence. 
20.	Accordingly the appeal against conviction will stand dismissed. 
Sentence.
21.	We have remarked that the appellant received a sentence of four years imprisonment. Lysser was sentenced to eighteen months for the same offence although that was ordered to be served consecutively to a three-month sentence imposed for another offence. O’Callaghan, who was convicted of supplying the cannabis, received a sentence of thirty months. Mr Turner makes two points. The first depends upon the straightforward submission that on authority a sentence of four years was too long even following a trial. His second ground of appeal rests on a disparity argument. He points to the fact that Lysser having been convicted of the same offence was sentenced to a substantially shorter term. And the fact that O’Callaghan received a sentence of thirty months lends colour, he submits, to the suspicion that the judge had been affected by something shown to him in the undisclosed material. 
22.	We deal with the second ground first. We have seen all the material which had been available to the learned sentencing judge. We say no more than that the lesser sentence imposed on Lysser was fully justified. So far as the difference between the appellant and O’Callaghan’s sentence is concerned we reject the suggestion that the judge had been influenced by what he had seen in the undisclosed material. On the evidence as presented he was perfectly entitled to take the view that of the three the appellant was the senior partner. It was his vehicle that was being used and the judge was perfectly entitled to take the view that O’Callaghan was simply a ‘gofer’. Therefore, insofar, as the appeal rests upon a disparity argument, it fails. However, we do think that a four-year sentence for this quantity of a class B drug was longer than necessary. Accordingly on that basis we allow the appeal by quashing the sentence of four years imprisonment and substituting one of three. 
Appendix 1.
"LORD JUSTICE MANTELL: We think that you ought to do that, Mr Russell-Flint. May be it won't be of much use, but we must strive to make as much available as we possibly can.
Now then we ought to make reference to the written submissions which we have received from Mr Turner QC who represents Walton and will represent him on the substantive appeal. We have had a number of documents presented to us. The latest I think only coming into my possession this morning, a four page submission, in which Mr Turner expresses his concern that the Court hearing the appeal will have seen, or may have seen, prejudicial material during the public interest immunity application such as has been held this afternoon and such as might cause members of the Court to take an adverse or hostile view towards the appellant which might not be the case were they not to have seen the material.
We hesitate to say that we are a little affronted by that suggestion. The exercise that we are required to carry out is the sort of exercise not only in connection with public interest immunity applications but in all classes of case where material necessarily must be presented to the judge in order for the judge to make a determination. One very obvious example I think is possibly given by Mr Russell-Flint QC for the Crown, namely, that in dealing with questions of admissibility it is very often the case that a trial judge will see material which could be regarded as highly prejudicial and he has to rule on its admissibility or otherwise. Let us assume that it is ruled inadmissible. He continues to preside over the trial, having within his knowledge material which is prejudicial. He is expected and required to put that out of mind in not only ruling on admissibility but for all other purposes unless it becomes relevant for some reason. The suggestion, if it be made by the European Court of Justice in Strasbourg, that English judges are incapable of performing that exercise is – I speak from a personal point of view -- faintly offensive. But never mind.
The position in this case could not have been different for the very simple reason that long before I received Mr Turner's submissions in writing I had looked at the material. Accordingly, however cursorily, I had looked at the material in question and, it would not have been open to the Court as presently constituted to do other than has been done this afternoon. That, of course, leaves open the possibility, should it be thought appropriate, for anyone to make an application prior to the hearing of the substantive appeal that a member, or members, of the constitution should recuse themselves.
MR RUSSELL-FLINT: Yes.
LORD JUSTICE MANTELL: Have I said anything in the course of that ruling which discloses material which should not be disclosed?
MR RUSSELL-FLINT: Not so far as I have considered, my Lord, no.
LORD JUSTICE MANTELL: We perhaps ought to add that as a fall back position Mr Turner may be submitting at some future date that this is an appropriate case for the appointment of what is sometimes called independent counsel, and on other occasions is referred to as a special advocate, to be appointed in order to represent the appellant's interests at any such hearing as we have held now. It goes without saying that should the Court at some future date consider it appropriate to make such an appointment the mere fact that we have had this application now would not prevent the Court reconsidering all the material with the advantage, if such it be, of hearing from a special advocate. I think if it is possible that this ruling, really more in the nature of observations, could be transcribed and made available to Mr Turner."
Appendix 2.
"LORD JUSTICE MANTELL: It is suggested that in this appeal it would be helpful to all concerned if the matter was to be adjourned until after such time as the House of Lords have had an opportunity to consider the case of R v H and C, neutral citation [2003] EWCA Crim 2847.
We have given careful consideration to that suggestion, but in the end we have decided not to stand this matter out, even though we are told that the House of Lords are likely to be considering the appeal in that case some time early in the new year. We do not know how long it will take for the House of Lords to arrive at a decision and we are also concerned that by adjourning in this case we would possibly be setting a precedent for other cases up and down the country. It is our view that it is desirable that matters should proceed, generally speaking, on the basis of the authority which is binding upon us and binding upon all courts of first instance, namely, that of H and C. Accordingly we reject the application and the matter will proceed today.
We think we have said enough to make it plain that we consider ourselves for the time as being bound by the decision of this Court in H and C and, unless it can be distinguished, would intend to follow it."