Neutral Citation Number: [2009] EWCA Crim 1360
Case No: 200800689 C5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Reading Crown Court
Her Honour Judge Smith
T20057316-1
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 07/07/2009
Before :

LORD JUSTICE HOOPER
LORD JUSTICE ETHERTON
and
MR JUSTICE CRANSTON
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Between :

	Leon Sofroniou	Appellant	
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	Regina	Respondent	

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Julian Knowles (instructed by Hickman & Rose) for the Appellant
Ian Acheson (instructed by CPS Berkshire) for the Respondent

Hearing dates : 14 May 2009
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Judgment
Mr Justice Cranston: 
INTRODUCTION
1.	In late 2006 the appellant was convicted at Reading Crown Court after a trial of almost three months duration.   The indictment in relation to him contained five counts of conspiracy to supply a controlled drug:  
Count 1: between 1st March and 10th August 2005 he conspired with others unknown to supply a controlled drug of class A, namely cocaine, to another in contravention of section 4(1) of the Misuse of Drugs Act 1971;
Count 2: as in Count 1, but in relation to methlyendioxymethylamphetamine (“ecstasy”);
Count 3: as above, but in relation to a Class B drug, namely amphetamine;
Count 4: as above, but in relation to a Class C drug, namely cannabis;
Count 5: as above, but in relation to a Class C drug, namely cannabis resin.
The jury convicted him on counts 1 and 4, both by a majority of 10 to 2.  He was acquitted by the jury on count 2 and acquitted on the judge’s direction on counts 3 and 5.  
2.	Her Honour Judge Smith sentenced him to six and a half years imprisonment, the sentence on each count to be served concurrently.  A renewed application to appeal against sentence was refused by the Full Court on 16th January 2009.  An application for leave to appeal against conviction was refused by Mitting J.  He renewed his application before us.  He contended first, that there is fresh evidence which makes his conviction unsafe; and secondly, that the learned judge failed to direct the jury properly in relation to acts and declarations by his co-conspirators.  After hearing the application we gave leave.  Since there had been a full canvassing of issues at the leave stage we immediately invited further representations in relation to the appeal.  There were none.  We then reserved judgment.  
BACKGROUND
3.	The appellant was prosecuted, along with ten other defendants, on the five counts mentioned above.  The prosecutions arose after an operation by Thames Valley Police against those suspected of supplying class A and B drugs in the Reading area.  Following surveillance, the central address for the drug-dealing seemed to be flat 50, The Meridian, Kenavon Drive, a large block of flats in central Reading.  Audio surveillance within the flat at 50, The Meridian was mounted and recordings were made between 12th July 2005 until arrests began on 9 August.  Surveillance also focused on a flat at 108 Kennet Walk, Reading, a short walk from The Meridian.  Other addresses mentioned in the evidence were 63 Maiden Place, Lower Earley, 120 Linden Road, Reading (a previous address of the appellant) and the appellant’s home address at 3 Ramsay Close, Lower Earley.   
4.	Of the appellant’s co-defendants Nicholas Sofroniou (“NS”) was his younger brother, whom he had brought up from the age of 13 following the death of their mother.  Florentzous Sofroniou (“FS”) was the appellant’s father.  Ashley Downton and Clint Best were the appellant’s cousins.  Lee Waite was a trainer at the gym which the appellant attended daily, the David Lloyd Health Club.  Six of the ten co-defendants pleaded guilty to various charges prior to trial:  Nicholas Sofroniou, Clint Best, Ashley Downton, Paul Gatt, Clive Franklyn, and Stephen Hawkins.  Four co-defendants stood trial with the appellant: Florentzous Sofroniou; Andrew Griffiths, Paul Drake and Lee Waite.    They were convicted on various combinations of counts.  Andrew Griffiths was acquitted on all counts.  
5.	Before the trial the prosecution case against the appellant was that he acquired 108 Kennet Walk for the conspiracy, provided money to purchase drugs and stored 10,000 ecstasy tablets at his old home address, 120 Linden Road.  The acquisition of 108 Kennet Walk seems not to have featured any further.  The case against him on Count 2 was based upon the finding at 120 Linden Road of a quantity of cash and ecstasy tables.   As we have said he was acquitted of that charge.  Thus for the purpose of this appeal the case against the appellant is confined to his role as a financier of the conspiracy.  In particular, it was said that he financed drug deals on three specific occasions when his co-conspirators were short of funds: on 15th July, he provided Nicholas Sofroniou with £2,000 which was required for the purchase of drugs, which the prosecution said was either one or two kilogrammes of cocaine; on 19th July, he provided £12,000; and on 29th July, when there was a shortage on the £32,000 required for the purchase of drugs from Liverpool, he provided £3,000 at short notice. 
6.	Greater detail of these and other relevant matters was set out in the prosecution’s Opening Note:
i)	On 15th July the appellant had lunch with four of his fellow defendants.  Later the same day Nicholas Sofroniou asked Florentzous Sofroniou to fetch “two grand” [£2,000] from “Leon”, and while there to get a towel.  Florentzous did not ask which Leon, and returned carrying something which may have been a towel;
ii)	On 16th July Nicholas Sofroniou asked Ashley Downton to “run that green [cannabis] up to Leon”.   The appellant admitted in evidence that this could have been a reference to him.   The prosecution said that this was part of a larger transaction which involved cocaine;  
iii)	On 19th July Nicholas Sofroniou agreed to send someone in a taxi to “Leon”.  Ashley Downton then travelled in a taxi and was said to have stopped in Ramsay Close, near to the appellant’s home, on the way to purchase drugs in Liverpool;  
iv)	On 20th July Nicholas Sofroniou was heard to say, according to the prosecution, when tallying the money spent in Liverpool the previous day,  “Leon ‘e [he] give me twelve grand”;   
v)	On 29th July Ashley Downton was heard to say “Leon’s got three grand on him” and to arrange the handover of this money in the nearby car park of a Toys R’ Us store;
vi)	The name “Leon” appeared on financial records found in the two main locations.
7.	The evidence of the appellant’s alleged participation in the conspiracies was drawn from a series of conversations between his co-defendants, recorded in the flat at 50 The Meridian by a police audio probe.  A notable feature was that in the main the key conversations did not involve the appellant himself.  Some 100 DVDs were served on the defence.  There were observations from three CCTV cameras in place on the landing outside the door to 50 The Meridian, on the slip road to the rear of 50 The Meridian, and one on the road from 50 The Meridian to 108 Kennet Walk.  Officers who had conducted observations at stages throughout the investigation transmitted events by radio to other officers, who recorded them in observation logs.   The prosecution also relied on evidence when the police followed Ashley Downton in the journey by taxi from 50 The Meridian to next door to the appellant’s home address at 3 Ramsay Close, on 19th July 2005 in pursuance of what was said to be an agreement that the appellant would supply money to assist the conspirators.  As part of the prosecution evidence there were also the documents referred to at trial as the “tick lists”, seized at 50 The Meridian and 108 Kennet Walk, on which various dealings were recorded, some showing transactions with someone named “Leon”.
8.	 It was in the course of audio recorded conversations that the conspirators inside 50 The Meridian spoke on a number of occasions about a man named “Leon”.  It became clear that more than one Leon was involved with the conspirators, a point the prosecution conceded at the time.  For example, there was a Leon known as Clint’s boy, a black man, apparently resident near the appellant in Lower Early.  Nevertheless, the prosecution’s case was that the jury could be sure that the “Leon” referred to on specific occasions was the appellant and that he was involved in the conspiracies.  The appellant’s case at trial was that these references did not relate to him and that he was not involved in any conspiracy.   The question for the jury was whether the evidence, and in particular the recorded conversations, made them sure that the references to “Leon” were to the appellant, and that he was part of the alleged conspiracies.  In her summing up the learned judge said this: 
“I pause, members of the jury, to put into your mind immediately, of course we do know that in this case there are more than one Leon.  I shall be reminding you about this when I come to deal with Mr Leon Sofroniou’s case in detail, but you must bear in mind at all times that it is correct there are more than one Leon that we have heard of in this case.”
Later the learned judge put the matter to the jury this way: 
“The prosecution case is that you can tell from the calls that had been made that there is someone to whom Nicholas Sofroniou could turn to make up the sums he needed for the purchase of his drugs that he wanted to sell on for profit.  They say you can tell from the sequence of events as shown in the audio transcripts and the observation schedule that though there are many Leons that have finished [featured?] in this case they say that that person is Leon Sofroniou.”
9.	As is the nature of intrusive surveillance, the audio recordings in this case were of variable quality.  Many conversations were recorded when a television was playing in the background.  It was sometimes difficult to distinguish the mixture of conversations in the flat on the one hand and telephone conversations between persons in the flat and those elsewhere on the other.  It was not always possible to determine whether what was said was being said on the telephone or to persons in the room.  At trial the transcripts of the audio recording were produced by a police officer, DC Jones.  They were not agreed transcripts.   During the trial the transcript was amended and re-amended.  Prosecution counsel advanced suggestions for passages on the transcript which had originally been transcribed as “inaudible”, and alternative interpretations were put forward for other sections which DC Jones had transcribed.  The amendments were the subject of complaints by the defence during the trial.    
10.	At trial the appellant gave evidence.  During his cross-examination, prosecution counsel played sections of the recordings to him and asked him whether he agreed with an interpretation put to him.   Some of the interpretations offered by counsel had not been advanced before.  For example, on 14th November 2006, counsel suggested that an important passage at 15.15 on 20th July included a conspirator saying, “Leon ‘e [he] give you £12,000, didn’t he”.   The appellant said at the time that what was said was “Leon ‘e [he] owes you £12,000”.  We return to this later in the judgment.   
GROUND 1: FRESH EVIDENCE
11.	The appellant seeks to adduce fresh evidence which, it is submitted, renders his conviction unsafe.  On his case the main thrust of the fresh evidence is to undermine the suggestion that the person referred to as “Leon” on the audio recordings was he.  The fresh evidence is said to put many of the points made against him by the prosecution into a very different light.  The task the jury would have had to perform would have been entirely different had they had the fresh evidence.  In the appellant’s submission the new material makes it very clear that on several key occasions the person under discussion was not the appellant at all.  Therefore the jury might have reached a different conclusion had they been aware of the range of material pointing away from him.
Nature of the fresh evidence 
12.	The fresh evidence comprises corrections, supplements and additions to the transcript of the audio tapes available at trial.  While in prison, the appellant spent many hours listening to the tapes and producing his own transcript.  His solicitors then had key sections of the recordings enhanced and a paralegal, Carolyn Reid, then listened and checked the appellant’s transcript.  In some cases she could confirm what the appellant had transcribed, but in other cases she could not.  Subsequently, the appellant’s solicitors obtained expert analysis of certain sections of the audio recordings which appeared to be unclear.   The expert analysis was undertaken by Phillip Harrison of JP French Associates, a Forensic Speech and Language Laboratory, using computer equipment and specialized software.  
13.	Thus now there are at least four categories of transcript of the audio recordings.  The first is that produced at trial by DC Jones, in its original form or as amended during the hearing.  Secondly, there are those parts of the appellant’s own transcript which Ms Reid accepts as accurate.  Thirdly, there are other parts of the appellant’s transcript which Ms Reid concedes are open to challenge.  Finally, there is the transcript which the expert has produced.  Below we refer to relevant parts of the original transcript, accompanied by the new sections produced by the appellant, indicating which are accepted by Ms Reid, with sections prepared by the expert.  
The law
14.	Section 23 of the Criminal Appeal Act 1968 provides that for the purposes of an appeal, or an application for leave to appeal, the Court of Appeal may receive any evidence which was not adduced in the proceedings from which the appeal lies.  Section 23(2) sets out the considerations to which the Court of Appeal shall have regard, in considering whether to receive such evidence:
“(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
The power conferred on the Court by section 23 is unfettered: the Court may exercise it if it is necessary or expedient in the interests of justice. The factors listed in subsection 2 are merely factors which the Court is required to take particularly into account in exercising its discretion.  They are not conditions in the sense that each of them must be satisfied before the evidence can be heard.  
15.	Under section 23(2)(d) regard must be paid as to whether there is a reasonable explanation for the failure to adduce the evidence at trial.  However, it is clear law that this is not decisive.  The court must also consider other factors, including the effect of the evidence if it were received and whether in the light of this it is necessary or expedient in the interests of justice to admit it: R v Cairns (Robert Emmett) (No 1) [2000] Crim LR 473.  In Cairns  the appellant sought to rely on evidence from experts who had been approached for their opinion before trial, but who had not been called.  Kennedy LJ said:
“… [O]ur conclusion in relation to s.23(2)(d) is not decisive. It is only one of the matters to which we must have regard when deciding whether it is necessary or expedient in the interests of justice to receive the evidence, and that, as it seems to us, is something which can only be decided by considering what may be the effect of this evidence if it is received, bearing in mind what was said by the Lord Chief Justice in Stephen Jones [1997] 1 Cr App Rep 86, 93 D:
‘It would clearly subvert the trial process if a defendant, convicted at trial, were to be generally free to mount on appeal an expert case which, if sound, could and should have been advanced before the jury.’”
Later, Kennedy LJ said:
“In our judgment the fresh evidence if tendered at the proper time could well have had a significant effect. There is no reasonable explanation for the failure to adduce it at the proper time, but nevertheless, because it would have been admissible, is capable of belief, and may afford a ground for allowing the appeal we consider that it is expedient in the interests of justice that leave to appeal should be granted and the evidence should be received now.”
The fresh evidence
16.	The most convenient method of analysing the fresh evidence advanced by the appellant, and as Kennedy LJ put it in Cairns “what may be the effect of this evidence if it is received”, is to set it out in date order.  This is how the audio evidence was considered at trial.  
(a) 15th July
17.	The prosecution’s case was that at 13.21 on the 15th July 2005 Anthony Downton, Nicholas and Florentzous Sofroniou left the flat at 50 The Meridian and went to the David Lloyd Health Club.  There they met the appellant and Lee Waite and ate lunch together.  In evidence the surveillance officers accepted that the appellant had already been in the club for some time.  Indeed, it was his case that he spent most days at the club working out.   In his evidence the appellant confirmed the lunch appointment but explained it as an innocent family gathering.  Then early that evening Nicholas Sofroniou was at 50 The Meridian with Clive Franklyn.  On the audio recording he received a telephone call at 19.18 telling him that he had to produce a considerable sum of money, presumably to a supplier.  A few minutes later Clint Best arrived, and Nicholas Sofroniou related to him the financial pressure to which he was subject.  At 20.02 there is a reference by Nicholas Sofroniou to the weather being very hot.  
18.	On the prosecution case the audio recording then contained a series of telephone conversations by Nicholas Sofroniou and Clint Best in which arrangements were made for the appellant to make “two grand” available.  At 20.11 Nicholas Sofroniou is counting money and in the audio recordings he is heard saying: “He’s bringing me three, 31, Leon’s bringing me two”.  In her summing up the learned judge takes up the story:
“A call at 20.22, members of the jury, mobile phone sounds, "Hello, all right bruv."  I pause there because it is clear that bruv is used by Nicholas Sofroniou to people who are not his brother and can mean mate.  He said this, "All right, I'll get Dad to" and then this depends on what you have heard "Run up and grab it for me" or it has been suggested "run it over for me" and "Quickly, how's that" should be, "Quickly has that okay mate, all right cheers, cheers bye."  Then Nicholas Sofroniou says, "Leon can get two grand for me then."  "Can you go to Leon's for me, Dad", or "Can you go to Leon's for me and get two grand for me, Dad" if that is what you heard.  Ashley Downton.  "Two grand, two grand."  Nicholas Sofroniou says, "When you get to Leon's get me a towel and tell him towel, yeah."  At 20.25 Mr Nicholas Sofroniou's ordering some food, Chinese food apparently and then after that Mr Florentzous Sofroniou leaves the flat.”
The prosecution observation evidence was that Florentzous Sofroniou left shortly after and when he returned after 9 o’clock he was carrying something which may have been a towel.  There was no evidence that he saw the appellant.
19.	In her summing up to the jury the learned judge said that the prosecution case in this regard was that from the sequence of events as shown in the audio transcripts and the observation schedule, and although there were other Leons, this Leon was the appellant.  
“How they say that, members of the jury, and why they say that is, they say, there is a sequence that you can see in the papers starting on July 15th 20.11 in the audio transcript.  That is where Nicholas Sofroniou is counting up large sums of money and as you know you can hear on the tape he is saying, "Leon is bringing me two." Then at 20.22, it is a matter for you and you have crosses and ticks against these conversations, they say that you can hear on the telephone Nicholas Sofroniou saying, "Can you go to Leon's and get me two grand for me Dad and get me a towel."  It appears to be no query about who Leon is and Mr Sofroniou senior leaves the flat and then comes back later with an item in his hand which the Crown invite you to consider as being a towel.”
When the judge dealt with the appellant’s defence in relation to this she explained: 
“He said that he was not the Leon who was going to provide £2,000.  “I gave Nicholas no money for drugs”.  He referred to the transcripts … which was that conversation with Nicholas saying ‘Can you go to Leon’s, get two grand for me Dad.” He says, “That does not refer to me. Neither Ashley Downton or my father came to me.’” 
20.	The fresh evidence which we are invited to consider on this matter is a conversation between 19.48 and 19.51 in which Nicholas Sofroniou refers to another Leon.  The version which the appellant himself has produced differs from what Ms Reid and the expert can verify, but for present purposes we accept that Nicholas Sofroniou is explaining to someone that “Leon's boy” had just discovered that his “missus” had been unfaithful to him over a period of some years.  On the appellant’s version his father, Florentzous, participates in the conversation.  “Leon’s boy’s” missus being unfaithful is a matter which was raised again in conversation the following day.  In both conversations the victim of the infidelity is “Leon’s boy”, plainly not the appellant, since he did not have a boy who had a “missus”.
21.	Mr Knowles’ cogent argument for the appellant builds on this conversation about a “Leon” whose “boy” had a wife who was unfaithful to him.  That conversation occurred prior to the time that Nicholas Sofroniou dispatched his father to “Leon” to collect the “two grand”.  In his submission if the jury had known about it the prosecution’s argument that the Leon in question could only have been the appellant would have been undermined.  There was a person called Leon referred to just before the 2011 conversation who was not the appellant.  Much of the force of the prosecution’s point – which Leon would Florentzous Sofroniou have known to go to if it was not the appellant? – would have been removed because an answer would have been: the Leon who was under discussion.   Fairness required that the jury hear about all mentions of any Leon over the period while Florentzous was in the room listening to the conversation.  Clearly the learned judge had not heard the additional material since she started her account of this matter from 20.11.  If she had been aware of the 17.48 conversation it is inconceivable that she would not have made some reference to the way in which the jury were to approach the matter.  It follows that the new evidence of the conversation originally marked as “inaudible” on the transcript, demonstrating that another Leon was being spoken about immediately before Florentzous Sofroniou was dispatched to “Leon”, undermines the safety of the inference the latter was the appellant.  Given the importance of this incident for the prosecution’s case, the jury’s verdict is unsafe.  
22.	In our view this discussion of another Leon has no bearing on the safety of the conviction.  It is not fresh evidence which would have had any effect on the jury’s deliberations.  The background in the audio recordings is of a very busy flat: drugs are being cut and packaged, people are coming and going and telephone calls are being made and received.  Against all this activity four critical conversations are evident in the hour beginning at about 19.18 on 15th July: the first is when Nicholas Sofroniou receives the call about the need for him to pay money; the second is new, for a couple of minutes beginning at 19.48, about “Leon’s boy’s” unfaithful “missus”; the third, beginning about a quarter of an hour later, at 20.11, occurs when Nicholas Sofroniou is counting the money to meet the demands of his supplier and says “He’s bringing me three, 31, Leon’s bringing me two”; and the fourth is at 20.23, when Nicholas Sofroniou tells someone on the telephone that “I’ll get dad” to run over to collect it and then is heard saying that Leon can get “two grand”.  That fourth conversation ends with the father, Florentzous, being dispatched, with the additional request, when he gets to Leon’s, to obtain a towel.  
23.	Even if that second, the 19.48 “Leon’s boy” conversation, had been available to the jury, we have no doubt that they would have regarded it as discrete, discrete both in time and as to the subject matter.  That the jury would have learnt that the father, Florentzous, had heard this second conversation, about a different Leon, would not in our view have had any effect on their conclusions.  At 20.23 Nicholas Sofroniou is heard to say “I’ll get Dad”, not “I’ll get my Dad”, to collect it.  The absence of any enquiry by the father as to which Leon he was to visit, coupled with the domestic familiarity implied by the request for a towel, meant that the jury could infer that the 20.11 reference, and the 20.23 conversation, involved this appellant.  
(b) 16th July   
24.	On the 16th July 2005, there were a series of conversations while Nicholas Sofroniou awaited a delivery of cocaine, which he was to cut and then supply. At 19.23 he spoke to someone who wanted a small quantity of cannabis.  That person was told that Ashley Downton had the cannabis.  At 19.58, he asked Downton to get a small quantity of cannabis for his brother Leon, the appellant.  At 20.01 Downton had gone downstairs at the Meridian flats, when Nicholas Sofroniou was phoned; the caller was told that he should be able to see Downton, who had gone downstairs, until it was discovered that the caller was at Downton’s flat in Maiden Place. There had been a misunderstanding as to where the caller was to collect his cannabis. The prosecution suggested that the misunderstanding stemmed from the caller hearing that Downton had the cannabis in the 19.23 call, and therefore going to Downton’s flat. That suggestion was supported by Nicholas Sofroniou maintaining in this call, at 20.01, that he had said earlier that the cocaine [“white”] was “up by you” and the cannabis [“green”] was in town with Nicholas Sofroniou.  At 20.04, concluding this conversation, Nicholas Sofroniou said that he would send Downton over with the cannabis in twenty minutes.  At 20.41, Nicholas Sofroniou spoke again with the person with whom there had been the misunderstanding; he claimed that Downton had left, repeating, “I never said he was at his flat”, and that “the green’s at my place and the white’s [at Downton’s flat in Maiden Place]”. Immediately after this conversation, Nicholas Sofroniou told Downton to take some cannabis to “Leon”; Downton seemed annoyed, referring to “Leon” as a “piss-taker”.
25.	In the prosecution case this series of conversations, linked by the misunderstanding over the location of the drugs between the two addresses, was with the same man, and that same man was the appellant.  The appellant accepted in evidence that one of the conversations was with him, for the supply of a small quantity of cannabis. In the prosecution’s case the conversations demonstrated that it was the appellant awaiting cocaine, as well as a small quantity of cannabis, so that he knew that Nicholas Sofroniou dealt in cocaine and cannabis.  Thus the jury could be sure of the link between the appellant’s financing and cocaine.
26.	At the trial these conversations were used by the appellant’s defence to show that there was more than one Leon.  The defence team had prepared its own transcript, which was marked on the prosecution’s transcript as “inaudible due to television”, and used it to cross-examine DC Jones, who had not mentioned 16th July in his evidence in chief.   At 19.34 Nicholas Sofroniou had asked Ashley Downton, “Grab me some green out, Ash, just a little bit for Leon”.  Downton had replied, “Which Leon?”, and Nicholas had answered, “My brother Leon”.  In cross-examination DC Jones agreed with counsel for the appellant that this indicated that in the mind of Downton there was more than one Leon involved in the case.  DC Jones was also asked about a passage omitted from the transcript dealing with “Clint’s mate Leon” and his unfaithful girlfriend.  DC Jones again agreed that this referred to someone other than the appellant.  The appellant dealt with the issue briefly in his evidence in chief.  Asked by his own counsel about the conversation in which his brother Nicholas had asked Downton to run a “little bit of green” up to Leon he agreed: “Yes I think that might have been me, yes”.  He went on to explain that he was “asking him to buy me a bag of green”.  He was not the person in either the 20.01 or 20.41 conversation, nor was he the person who had mistakenly gone to Maiden Place, Downton’s home, rather than the Meridian flats.
27.	Before us Mr Knowles for the appellant identified numerous calls to Nicholas Sofroniou from callers who were apparently asking for drugs, at 16.48, 17.03, 17.55, 18.26, 19,02, and 19.13.  Many, if not all, of those calls were for “green”.  He also pointed out that Ashley Downton and others were arriving and leaving 50 The Meridian according to the observation schedules and the doors being heard on the audio recordings, opening and closing.  So Nicholas Sofroniou was extremely busy throughout this time, both on the telephone and with conversations in person.  However, it was very difficult to determine from the audio recordings which were conversations in person with others in the flat and which were conversations by telephone. In Mr Knowles’ submission the fact that so many people were making drug collections or deliveries would have been highly relevant to the question of which conversation related to which deal with which person.
28.	In relation to the prosecution case, about the link of the appellant to the cocaine through the misunderstand of where the “white” and “green” were, Mr Knowles suggested that what happened according to the CCTV was that at 20.01 Ashley Downton left 50 The Meridian, promptly got in to his vehicle, and drove towards Kennett Walk.  He did this immediately after he had been told by Nicholas Sofroniou to give something to someone.  Thus Downton had not gone downstairs to look for someone who had come to the Meridian flats but had gone downstairs to travel to Kennet Walk.  In Mr Knowles’ submission this is confirmed by the fact that Downton returned from Kennet Walk at 20.11, having been gone for only seven or eight minutes, and by the new transcripts of the audio recordings.  
29.	Moreover, the new transcripts also showed that Nicholas Sofroniou’s 20.01 conversation appeared to conclude with his agreeing that a personal delivery should be made by Clive Franklyn in relation to whatever drugs were the subject of the misunderstanding.  Franklyn left the flat at 20.04.  If the person who had the misunderstanding at 20.04 was being supplied in person by Franklyn, the prosecution’s hypothesis in relation to the third conversation at 20.41 had to be incorrect.  In other words, the conversation at 20.41 was further reassurance to the person who was expecting the delivery from Franklyn.  Mr Knowles further suggested that on very careful and repeated listening it was possible to hear Ashley Downton speaking to Nicholas Sofroniou in the course of this conversation and it appeared certain that the words which the prosecution said Nicholas Sofroniou spoke to the appellant – in particular, “the green’s at my place and the white’s here” – were in fact spoken to Ashley Downton, who was still present in the flat.  The whole of the sequence put to the appellant, starting as the prosecution did from the section at 20.41, was therefore based on a misapprehension, a misapprehension which the appellant had no fair opportunity to correct.  
30.	In our view the conversation at 19.58, when Nicholas Sofroniou was obtaining a little bit of “green” for his brother Leon, could well be regarded as discrette from other parts of the conversation around that time, in particular the linking of the “white” and “green”, i.e. the cocaine was “up by you” and the cannabis was in town with him.  When the learned judge summed up she put the prosecution case that the conversations was related and that the Leon who was asking for the cannabis was also involved in cocaine.  In our view had the new evidence been available it would have impacted on this aspect of the prosecution case and the judge would have been bound to explain how it was in this respect undermined.  We return to the implications of this below.  
31.	Since the evidence from these 16th July conversations were central to the prosecution case that the appellant appreciated that the conspiracy involved the supply of cocaine, can the conviction in that regard be said to be safe?  In our judgment, it can.  It is clear that the conspiracy dealt in cocaine, not least because of the five guilty pleas by Nicholas Sofroniou and others to that effect.  In the light of the other evidence about the appellant providing finance to the conspiracy, we take the view that the jury were entitled to conclude that, at the least, he was prepared to provide finance, not caring whether the conspiracy supplied cocaine or other drugs.  That the jury acquitted on the ecstasy count does not affect our conclusion, since that count was based on the ecstasy tablets found at 120 Linden Road.
(c) 18th July
32.	The transcript which the appellant has produced relating to conversations at 17.44 on 18th July has Nicholas Sofroniou referring to a black drug dealer named Leon, who was engaged in some form of drug deal and was visiting 50 The Meridian to collect drugs.   Since this conversation is confirmed by neither Ms Reid nor the expert it takes the matter nowhere.   A later conversation at 20.25 was transcribed by DC Jones: “Leon, he paid eight hundred quid.”  The appellant’s case is that when considered in context it is clear that this is a different Leon from Clint’s boy, indeed a Leon who is an active drug-dealer.  In our view, even if the audio recording supports this interpretation, we cannot see where it leads.  In relation to the passage around 20.25, the prosecution conceded at trial that it was not possible to be certain that this reference to Leon paying £800 was to Leon, the appellant.  Moreover, there is the passage in the judge’s summing up, quoted earlier, that “we do know that in this case there is more than one Leon”.  
(d) 19th – 20th July
33.	For the appellant Mr Knowles submitted that the new evidence relating to these days is the most significant in advancing the case that the jury’s verdict is unsafe.  We can begin with conversations about 15.00 on 19th July, after Nicholas Sofroniou had spoken to Ashley Downton about a trip to a distant place, Liverpool it seems.   
NS “Hello bruv, yeah you alright where are you?  Are ya.  You tried ringing me, I've fucking lost my phone ain't I, yeah.   Where are you at yours are ya,  right, I'll get him to come over there (inaudible) right be there though cause I'm gonna send him in a taxi, alright he'll be there in about an hour. yeahah, he'll be there in about an hour. Alright cheers bruv, see you in a bit then bye.” 

So in this call Nicholas Sofroniou was telephoning someone, promising to “send him in a taxi” and saying that he will “be there in about an hour”.  It was the prosecution’s case that this call was an arrangement between Nicholas Sofroniou and the appellant for Ashley Downton to call at the appellant’s home in a taxi to collect money, then to be taken to Liverpool to buy drugs.  As can be seen the audio recording does not reveal to whom Nicholas Sofroniou was speaking, where the taxi was to go afterwards or any mention of money.  However, the prosecution also based its assertion on observation evidence from police officers of Ashley Downton travelling in a taxi between 17.38 and 17.50 to Ramsay Close, the street where the appellant lived.  
34.	Then in relation to 20th July, the prosecution’s case was that the recorded conversations supported the idea that the appellant had supplied £12,000 on the previous day.  A passage at 15.15 between Ashley Downton and Nicholas Sofroniou was transcribed as follows:
    AD Yeah so yesterday
NS	Yeah so how much did he give you back
AD	 three hundred and twenty quid, in the till there’s a    hundred and seventy quid.  So there’s one ten, then Leon was short typically (inaudible) So nine and a half for the bricks [cannabis], five thousand littles [ecstacy].  So what’s that, twenty four and half.  Pills, hundred twenty .. Give us three hundred and thirty back, so that’s what, twenty five
NS So how much did I give you from here?
NS/AD  Thirteen two
NS Thirteen two
NS	Did he take some of the [paid cabby???] .. he said he’s          pay for half the taxi …
AD So three hundred and twenty for the taxi
NS And Leon ‘e give you twelve thousand didn’t he?
AD Yeah, but with … [mac???] 2 6 short
AD That, that’s three thirty
NS Yeah
AD And there’s twenty five
NS	So really you only took about 25 thousand two hundred anyway
AD	Yeah .. and there’s two hundred taxi .. inaudible So    we still owe for the three bricks, we still owe for …
NS  (inaudible) So we’re going for thirty, three bricks
AD	 No, we had thirty bricks didn’t we [still got in here?] ..         going for a bag of smell ..
NS Did they give you three or five?
AD Three .. there’s three packets and that’s it.  ”
On the prosecution’s case the conspirators were tallying up money that had been provided the previous day.  The prosecution said that the reference to “And Leon e’ [he] give you twelve thousand didn’t he” referred to the appellant having given the main conspirators £12,000 of the £25,000 they needed the previous day.    When put to him the appellant agreed that he could hear the conversation between Nicholas Sofroniou and Ashley Downton at 15.15 “Leon was short typically”, but disputed that it was a reference to him.  The appellant denied that the reference to Leon was to him and did not accept that he could hear what was transmitted but said that he could hear: “Leon owes [not gives] me £12,000”.   
35.	In her summing up the learned judge said this about this passage: 
“This conversation was put to Leon Sofroniou in cross examination and he did not agree with what was suggested on this page and just so that you know this will be played when I come to deal with his case, so I can tell you what he says is here and then we are going to listen to it at that time and you can decide then what should be on the transcript.”
She returned to the passage when dealing with the appellant’s defence.   
“Then on 20th July, 15.15, another conversation and this conversation was one in which Mr Leon Sofroniou when he gave his evidence does not say about Leon give you 12,000, it is about Leon owes me 12,000, so I think we should play this at this stage and you can listen to it … (tape played twice) …”
36.	Following his conviction, the appellant remained of the view that what had been said was Leon “owes” £12,000 and that the comment which had been suggested to be “Leon was short typically” was “Leon was short sixty quid”.  In its report, the defence expert has supported his interpretation:
“Of the two suggested interpretations for each section, my preferred interpretations are as follows:
Section 1 – “sixty quid”
Section 2 – “owes”
This view is based on auditory analyses and the comparisons carried out and the familiarity with the voices in question gained from previous work in this case (see report of 27th September [this is an error – it should be August] 2008).
These interpretations were also agreed by Prof French of this firm.”
37.	In Mr Knowles’ submission this new evidence fatally undermines the prosecution’s case that this conversation was evidence that the appellant had provided the conspirators with £12,000 of the £25,200 on 19th July.  It is fundamentally inconsistent with the correct interpretation of the tape which is that Nicholas Sofroniou had said “Leon owes you £12,000”.   If the jury had concluded that Leon, whoever he was, owed £12,000, then it was highly unlikely to have concluded that this Leon had given £12,000 the previous day.   Still less would the jury have accepted the prosecution’s suggestion that the Leon in question was the appellant.    The correct interpretation would have supported the appellant’s case that the Leon in question may have been involved with the conspirators, but that it was not the appellant.   
38.	That is reinforced, on the appellant’s case, by other new evidence over those two days.  For example, on the 19th July, the observation schedule suggested that Clive Franklin left 50 The Meridian at 16.16 on foot.  In fact the schedule omits the fact that at 16.17 he got into a black cab and left.  He was gone for 32 mins, returning at 16.49.  Thus he could therefore have been the person Nicholas Sofroniou sent in the taxi to meet someone.  If the 15.51 phone call referred to the taxi journey made by Franklin it weakens any possible link between that call and the taxi journey to Ramsay Close, the street where the appellant lived.  Moreover, new evidence casts doubt on the evidence of this taxi journey.  For example, evidence in the form of unproved computer records from the taxi company is that the journey on that day was from The Meridian to Liverpool, not to Ramsay Close.     
39.	In our view none of this additional evidence would have impacted on the jury’s consideration of the matter.  The conversation just before 16.00 on 19th July was open to the interpretation the prosecution advanced, coupled with the taxi trip to the appellant’s home at Ramsay Close and the conversation the following day.  Indeed the new evidence from the taxi company provides some additional support for the prosecution, in that we know now that a taxi went to Liverpool.  Although there is no record of a journey to Ramsay Close it is possible that the taxi called there on the way to Liverpool.  The police evidence that the taxi was unattended in Ramsay Close, and the taxi-driver’s evidence that he would never leave his taxi unattended does not assist one way or the other. The jury had the appellant’s denial that anyone such as Ashley Downton ever visited him at that time or on that day.  
40.	Most importantly, there is the conversation the following day, the 20th July, when there is clearly a tallying up taking place of what occurred the previous day.  The taxi cost £320; we now know a taxi went to Liverpool.  Taken in context it matters little whether what was said was that Leon had given or owed £12,000: Leon could be regarded as having contributed £12,000 to the £25,200 taken to Liverpool to buy the drugs – “thirteen two” [£13,200] taken from here; Leon “e’ [give] [owes] you twelve thousand” [£12,000]; “so really you only took about 25 thousand two hundred anyway” [£13,200 + £12,000 = £25,200].  Whether it is “given” or “owes”, the clear sense of that part of the conversation is that Leon is making a contribution to the cost of the drugs.    
41.	The jury had the appellant’s evidence about “owes”, and listened to that passage on various occasions and twice at its request during its retirement.  They also had the point about a number of Leons.  The only other issue which arises on these conversations is that trip was for “bricks” [cannabis] and “littles” [ecstasy], not cocaine.  As we have said earlier, the jury could well have accepted the prosecution case that the appellant funded the conspiracy, without regard to whether what drugs were being dealt.  
(e) 29th July
42.	There is no new evidence suggested for this date.  However, since it was the third leg of the prosecution’s case that this appellant was funding the conspiracy – in addition to what were said to be the contributions of £2,000 on the 15th July and £12,000 on the 19th July – it is as well briefly to mention it.  The prosecution said that this day Ashley Downton and Paul Gatt were £3,000 short of £3,200 for the purchase of a kilogramme of cocaine in Liverpool, and the appellant provided that amount.  On this issue the judge put his case to the jury that, although he could hear some reference to “piss-taker” on the tapes – the prosecution case was that this was how Downton referred to him – he never gave any money on that day nor had he ever given money to Downton at any time in his life.    
(f) August 3
43.	A new addition to the transcript of the audio recordings at 14.32 is said to evidence the existence of yet another Leon from Winnersh, in Reading.  Even if the appellant’s transcript of this conversation is accepted, it would add nothing to the point which the jury had, there were other Leons.
GROUND 2: ACTS OR DECLARATIONS BY CO-CONSPIRATORS 
44.	The main evidence against the appellant was the audio recordings of the conspirators.  As far as these recordings were of conversations between a conspirator on the phone and this appellant, they do not constitute hearsay evidence.  In R v Smart [2002] EWCA Crim 772; [2002] Crim LR 684 it was held that the evidence of the recording of the suspect speaking into a mobile phone is direct evidence against the party he is speaking to, it being a matter for the jury who that person is.  No objection is taken in this case to the admissibility of this aspect of the recordings.  
45.	However, in a cogent argument Mr Knowles submitted that conversations between the conspirators at 50 The Meridian when “Leon” was not there were inadmissible hearsay, even if the so-called common enterprise exception applied.  That followed because the necessary pre-conditions for their admissibility had not been fulfilled.  In any event, the judge had not given the jury any direction on the matter.  Accordingly, in Mr Knowles’ submission, the convictions were unsafe.  

Common enterprise hearsay exception
46.	Under the common enterprise exception to the hearsay rule, conversations such as these may provide evidence not only of the existence, nature and extent of a conspiracy, but also of the participation in it of persons absent when those conversations took place.  The common enterprise exception to the hearsay rule is preserved by section 118(1)(7) of the Criminal Justice Act 2003.  The first pre-condition to the operation of the exception is that there is admissible evidence of the existence of a conspiracy.  Secondly, the judge must be satisfied that the conversations were made with the intention of furthering the agreed purpose during the currency of the common enterprise.  Thirdly, there must be some evidence that this appellant was a party to the conspiracy apart from the conversations.  Judge J (as he then was) said this of the third precondition in R v Devonport [1996] 1 Cr App R 221:  
“From these authorities we derive the principle that in the present case the document, exhibit 99, was admissible against the appellants if it constituted an act or declaration by New in furtherance of the conspiracy, provided that there was some further evidence beyond the document itself that they were parties to the conspiracy alleged against them.”
47.	Mr Knowles contended that in this case there was no other evidence besides the conversations which proved that the appellant was a party to the conspiracy.   For example, there was no observation of him on CCTV; no evidence of his meeting the other conspirators save for the 15 July meeting at the gym, which he visited every day in any event; and there was no forensic or fingerprint evidence against him.  Moreover, there was no evidence to show that the “Leon” referred to in the conversations was a reference to him.  The conversations themselves could not properly be used to prove that the Leon being spoken about was the appellant in the absence of any independent evidence that that was indeed the case. 
48.	In our view the judge was entitled to treat the preconditions for admitting these conversations under the common enterprise exception as being met.  As to the first, there can be no doubt there was a conspiracy, given the guilty pleas, not least that of the central figure, the appellant’s brother, Nicholas Sofroniou.  Secondly, the judge could be satisfied the conversations were made in furtherance of the alleged agreement.  Each of the conversations on 15th, 19th and 29th July, when it could have been this appellant to whom reference was made, were discussions of how to fund the purchase of drugs which were to be bought for onward supply.  Thirdly, there was some evidence beyond the audio recordings to prove that the appellant was a party to the argument.  Notably there was the taxi which pulled up very near his home on 19th July a taxi which, given that we now know one went to Liverpool, was in all likelihood that taxi, which stopped off there on the way.  
49.	Mr Knowles advances one point in relation to the second precondition.  He submits that the statement “Leon ‘e [give] [owes] you £12 000 didn’t he” was a narration of past events and so fell outside the exception, which only applies to acts and declarations in furtherance of the conspiracy.  In our view this statement could be regarded as part of a tallying-up exercise as to payment for drugs on the previous day.  Nicholas Sofroniou needed to know what had happened with the Liverpool journey as part of the conspiracy’s ongoing operations.  It was not a description of a past event but a running record of the drug dealing operation as the conspiracy progressed.  Thus it was in furtherance of the conspiracy and admissible against the appellant.    
Jury warning
50.	Mr Knowles alternate submission is that, even if those audio conversations were admissible, the jury should have been specifically directed that they should not convict the appellant if they concluded conversations from which he was absent were the only evidence of his guilt.   In Mr Knowles submission she should have told the jury that they should consider what other evidence there was of the appellant’s guilt, and that if there was none, and the only evidence against him were the conversations between others, they should not convict.  She should also have warned the jury to bear in mind that the appellant had not had an opportunity to cross-examine those who took part in the conversations.  
51.	In our view this goes too far.  It would have been preferable if the learned judge had given the jury a warning along the lines recommended in the notes to the Judicial Studies Board specimen direction on conspiracy.  This is to the effect that in a case where the prosecution seeks to rely upon things said and done by A as part of the case against B, and B was not present when these things were said or done, the jury should treat the evidence with caution.  Before they hold this evidence against B they should consider all of the evidence.  They should then ask whether they are sure that this evidence is true and that it amounts to evidence of things said or done by A in the course of and for the purpose of carrying out the conspiracy.  If the evidence passes those tests it could then be considered in the case against B, although it would then be up to them to decide what weight they should give it.      
52.	In the absence of such a warning, we do not regard the jury’s verdict to be unsafe.  When summing up the appellant’s case the learned judge began with the prosecution’s case against him, that 
“… you can tell from the sequence of events as shown in the audio transcripts and the observation schedule that though there are many Leons that have finished in this case they say that the person is Leon Sofroniou”  (our emphasis).
When addressing the events of the 19th July, the learned judge specifically referred to the evidence of the surveillance officers following a taxi with Ashley Downton in it travelling to Ramsey Close.  The jury were thus aware that the case against the appellant was not based on the conversations alone.  All this was straightforward and simple for the jury to understand.  
CONCLUSION
53.	The appellant has produced as fresh evidence new transcripts of the prosecution’s audio recordings of conversations between other members of the conspiracy.  He contends that if crucial passages and phrases not previously identifiable had been available at the trial they would have shed a quite different light on the prosecution’s case.  In particular the new transcripts would have shown that other ‘Leons’ played a much greater part in the drug dealing conspiracy than appears from the prosecution’s transcript.  Many of the conclusions which the prosecution urged the jury to draw can now be shown to be simply wrong, given what was recorded.  Consequently, the conviction can no longer be regarded as safe.  
54.	In our view this basis for the appeal has an air of unreality to it.  At the centre of the conspiracy was the appellant’s brother, Nicholas Sofroniou, whom he had brought up from an early age.  Also involved on a daily basis were his father and his cousin, Ashley Downton.  The appellant accepts that during the period of surveillance, on 15th July, he met all of them at the David Lloyd Health Club for lunch although he says it as just a family gathering.  So just before the arrests it was not as though there was sign of a rift in the family.  It seems to us that the simplest thing would have been for Nicholas Sofroniou, for one, to have given evidence at trial, or before us, explaining these conversations and who these “Leons” on the audio recordings really were.  That he did not do.  
55.	In any event, having carefully considered the new transcripts we have come to the conclusion that they do not impact on the safety of the appellant’s conviction.  In our view availability of the new transcripts would not have affected the jury’s conclusion that he was the Leon who made finance available to the conspiracy for the purchase of drugs on the key dates.  The one instance when the new transcripts may have led the jury to a different conclusion relates to the prosecution’s case that from what was said on the 16th July the appellant knew that the conspiracy was involved in cocaine.  However, it was always the prosecution case that, given the close-knit nature of the conspiracy and the ready availability of cocaine, ecstacy, amphetamine and cannabis in almost any quantity from its operation, it was inconceivable that any given conspirator could have been involved in the conspiracy in relation to one type of drug and not another.  On that basis the new evidence for the 16th July would not have affected the safety of the conviction.  
56.	Nor in our view is the safety of the conviction undermined because the learned judge did not give a direction to the jury that they had to be sure there was evidence outside the conversations not involving the appellant to show that he was a party to the conspiracies.  In our judgment there was such evidence which, taken with these conversations, enabled the jury to find that this appellant was a party to the conspiracies to supply cocaine and cannabis.
57.	We dismiss the appeal.