Case No: 201305129 B2
Neutral Citation Number: [2013] EWCA Crim 1916
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WOOLWICH CROWN COURT
HHJ KINCH QC
T20137422
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/11/2013
Before:

LADY JUSTICE RAFFERTY DBE
MR JUSTICE SWEENEY
and
HIS HONOUR JUDGE ZEIDMAN QC 
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
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Between:

	REGINA	Appellant	
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	BOR	Respondent	

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Michael Burrows QC and Matthew Brook (instructed by Crown Prosecution Service) for the Appellant
Tom Walkling (instructed by Maidments Solicitors) for the Respondent

Hearing date: 16th October 2013
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Judgment
Lady Justice Rafferty: 
1.	The Respondent faces trial in the Crown Court sitting in Woolwich for conspiracy to escape contrary to s.1(1) of the Criminal Law Act 1977. On 7th October 2013 at the conclusion of the case for the Crown the Judge ruled that he had no case to answer. 
2.	The Crown confirmed that it would appeal the decision pursuant to s.58 Criminal Justice Act 2003 and gave the appropriate undertaking.
3.	Also indicted are Robert Riddell, Stuart Reid, Daniel Morgan, Craig Wright and Samantha Glover. Reid, Wright and Glover also made submissions of no case to answer which were rejected. John Anslow, Paul Cadby, Luke Hazel, Moysha Shepherd and Ryan Powell pleaded guilty at an earlier stage.    
4.	On 13 August 2011 John Anslow was remanded in custody for alleged drugs offences. On 8 September he was arrested and interviewed for murder but not charged. The case for the Crown was that he arranged with his uncle, David Harrison, that Richard Deakin should be killed. Darryl Dickens was said to be the getaway driver. At Christmas 2011 Stuart Reid sent Anslow a card in which was a coded message and a telephone number. The topic was a future escape. This prelude to the indicted conspiracy was not in issue.
5.	On 5 January 2012 Harrison and Dickens were charged with murder. The Crown suggested it is inevitable Anslow, in prison, would quickly have learned of this.  He was not then a Category A prisoner but there was evidence he was concerned about possible recategorisation.
6.	On 18 January Anslow was charged with murder. The Crown’s case is that the index conspiracy was up and running before then.
7.	On 15th January a vehicle linked to Shepherd reconnoitred the prison housing Anslow. On 16th January another vehicle similarly linked reconnoitred the Crown Court at Stafford, and on 17th January a route from Birmingham to the home of Stuart Reid. That day, two conspirators changed the mobile telephones each used. For convenience we shall use shorthand, and refer to an individual as using an identified mobile. In each case however the true evidential position is that the handset was in use or was contacted, without proof of its user.
8.	On 23rd January 2012 Anslow was taken by force from a prison van en route from HMP Hewell to the Crown Court sitting at Stafford.  Three men in a VW Sirocco blocked the path of the van and attacked it with sledge hammers until a handcuffed Anslow escaped.  There was strong evidence that Anslow used a concealed mobile phone (“731”), the escape phone, to contact those in the Sirocco so as to identify in which of the vans leaving HMP Hewell he would be.
9.	Anslow and the escape team made their getaway in the Sirocco, transferred to a high-performance Mercedes and sped off towards Birmingham. Cellsite evidence suggested that Anslow may have lain low in that area and then in the Liverpool area until further arrangements were made for him to leave for Northern Cyprus. He was returned to the UK by police officers from Northern Cyprus in March 2013. 
10.	The Crown suggested the Respondent had been one who helped Anslow across Birmingham and that mobile telephone evidence linked him on the day of the escape to Anslow and to Daniel Morgan.  The morning after the escape the Respondent ceased using the mobile (“210”) attributed to him.
11.	The undisputed evidence demonstrates that 210 was active before 1st January 2012 and its last made and answered calls were on 24th January. This is relied upon as significant since conspirators changed their mobiles on 23rd and on 24th January, after the escape.
12.	During the period of the indicted conspiracy relevant contact from or to 210 was mainly with mobiles attributed to Morgan and to Hazel. On the day of the escape it was twice in contact with Anslow’s 731 escape phone.
13.	The first attempted contact with Hazel was on 18th January. He was in prison with Anslow and organised the Sirocco trio who attacked the prison van. Hazel has pleaded guilty to this indictment. Morgan remains before the jury. In reliance on the telephone schedule the Crown suggests he was the third of three in the Sirocco. 
14.	We turn to a detailed review of the evidence of telephone use.
8th January 2012.
15.	At 1949 Morgan rang the Respondent for 4m 25s. At 1955 the Respondent rang Morgan for 4m 9sec. At 2000 the Respondent rang Morgan for 4m 32sec. These three calls together suggest a total of some 13 minutes of conversation. Immediately they were followed at 2004 by a Morgan to Hazel attempted call of 6 seconds which went to voicemail. The inference the Crown invites is that whatever business Morgan had with the Respondent was the same business he had with Hazel. 
17th January 2012
16.	On this occasion contact between Morgan and Hazel preceded that between Morgan and the Respondent. At 1841 and at 1846 Hazel tried to ring Morgan. AT 1848 Morgan rang Hazel back, the call lasting 10m 33s. Within a minute, at 1859 Hazel rang Morgan back for 2s. At 1904 Morgan texted Hazel. At 1905 Morgan rang the Respondent for 12s. At 1907 the Respondent rang Morgan for 29 secs.  The inference the Crown invites is that whatever business Morgan had with Hazel was the same business he had with the Respondent. 
17.	17th January is said also to be significant as the date of the third reconnoitre, the meeting with Stuart Reid and the date upon which two conspirators changed their mobile phones. Additionally, at 2 o’clock in the afternoon, Morgan was in contact with Shepherd.
18.	Available to the court and in the jury bundle are the full telephone records of the Respondent’s 210 mobile from 1st January 2012. The final activity on 18th was an attempted call from Hazel in prison to the Respondent at 2147, the first attempt by Hazel to contact the Respondent that month. 

20th January 2012
19.	At 1906 the Respondent rang Hazel for 4m 25s. At 1911 the Respondent rang Hazel for 4m 48s. Just before these two, Hazel sent a text to and attempted to ring Craig Wright, also in prison. At 1935 Hazel tried to ring Powell for 3s going to voicemail. At 1953 Hazel rang Powell for 18s. At 1957 Powell texted Hazel. At 2005 Hazel texted Shepherd. The inference for which the Crown argues is that in the space of an hour contact occurred or was attempted between Hazel and two conspirators, Shepherd and Powell, and Hazel and two alleged conspirators, Wright and the Respondent.
20.	In reliance upon all this the Crown submits that a reasonable jury can infer that the telephone traffic was in furtherance of the conspiracy.
23rd January 2012
21.	The escape was at 0820. Before it, there were some half dozen attempted calls or texts between a mobile in the Sirocco and Anslow’s 731 escape phone. During what the Crown describes as this critical period the mobile of Morgan, said to be in the Sirocco, was silent. 
22.	At 1240 the Respondent rang Morgan for 2m 12s. At 1245 Morgan rang the Respondent for 18s. At 1246 Morgan left an 8s voicemail for Hazel.
23.	The inference the Crown invites is that the business between Morgan and the Respondent must be the same as that between Morgan and Hazel, the latter having pleaded guilty to the conspiracy. 
24.	At 1246 the Respondent left a 1s voicemail on the escape phone and did the same at 1247.
25.	The escape phone was active only for twenty-seven hours. It was activated at 1517 the day before the escape and was in play until early evening on the day of the escape. The Crown argues it is inconceivable the escape phone details would have been handed out other than to those trusted as part of the conspiracy. It was certain to have had a highly restricted circle of contacts. One was the Respondent. How, the Crown asks rhetorically, did he come to have the number? It suggests the irresistible inference is that it was passed to him by Morgan in the prior contact between the two.
26.	Additionally, after its activation at 1517 on 22nd January, the eve of escape day, for the balance of 22nd there were no calls involving any conspirator. On escape day there were no calls involving any conspirator during the morning. The first call between any alleged conspirator and the Respondent is at 1240 when the Respondent rang Morgan. 
27.	At 1245 and at 1247 the Respondent left one second voicemails for the escape phone. The inference the Crown invites is that Morgan at 1240 gave to the Respondent the 731 escape phone number. It asks what possible reason would there be for that unless the Respondent were a conspirator?
28.	At 1251 Anslow rang Morgan. At 1254, within minutes of the Respondent/Morgan calls and of the attempted calls from the Respondent to the escape phone, Morgan rang the Respondent. At 1256 Anslow rang Morgan. The inference the Crown invites is that Morgan was twice in contact with Anslow and, sandwiched between, Morgan was in contact with the Respondent. The business between Morgan and the Respondent must, it argues, have been the escape.
29.	At about lunchtime on 23rd January Anslow was in contact with other conspirators. At 1401 Morgan rang the Respondent for 11m 4s. At 1514 Morgan left Anslow a 2s voicemail. The inference the Crown invites is that Morgan was still involved in the escape and that consequently at 1401 so too was the Respondent. At 1601 Morgan contacted the Sirocco/Mercedes phone. What could this be, asks the Crown, but another act in furtherance of the conspiracy?
The cellsite evidence.
30.	We can take this briefly. At times relevant to the conspiracy the Crown can show that 210 was in the area of the Respondent’s home and then within a few kilometres of Smethwick, where the escape phone was. By 1240 it was near Sigma cars, as was the 921 Mercedes getaway car phone. 1240, it should be remembered, was the time of the first call that day involving Morgan near Shepherd’s home and the Respondent.
31.	The inference the Crown invites is that Morgan, Anslow and the Respondent were in contact when the Respondent was near Sigma as was the Mercedes in which Anslow must earlier have been. Sigma was an office to which the Respondent would on a social basis from time to time call in and one where he told police he may have been on January 23rd. His Defence Case Statement, not yet in evidence, suggests that he definitely was at Sigma, on 23rd, at teatime and saw Shepherd.
The Judge’s ruling.

32.	Where relevant the ruling read as follows:
“The issue and the approach
8) The submissions I have heard can all be categorised as second limb Galbraith submissions.  I have had assistance on the correct approach in law including a helpful analysis of the authorities prepared by Mr Forte on behalf of SG.  I have in mind the recent reminder from the CACD that “It is essential to focus on the traditional question whether or not there is evidence (taking the prosecution case at its highest) upon which a reasonable jury, properly directed, could infer guilt.”  Per Hallett LJ in R v Khan [2013] EWCA Crim 1345.
No-one has argued against this interpretation of the appropriate test in a case based on circumstantial evidence.
(10) It follows that the question for me to decide in relation to each defendant is whether I am satisfied that a reasonable jury would be entitled to infer on one possible view of the evidence that it was sure that the defendant had agreed to play some part in the conspiracy to effect JA’s escape from custody……………..
14) 	The Respondent:  Mr Walking submits in his skeleton argument and in oral submissions that:
i)   	Contact with Daniel Morgan and Luke Hazel is incapable of supporting an inference of criminal contact.
ii)  	Attempts to call JA’s number on 23rd January are disputed by the Respondent in interview.  They are evidentially insignificant and JA never called back.
iii) 	The Respondent’s presence at Sigma Cars on 23 January does not prove anything given the absence of evidence that Sigma Cars played any role in the escape.
iv) 	The 210 phone ceased making calls on 24 January but the prosecution cannot rule out the possibility that the call package had expired that day.
v)  	There is no evidence of what the Respondent’s role was or why he was needed to play a part in the conspiracy.
The prosecution argue that there is support for the Respondent’s involvement in the conspiracy:
from his phone contact Daniel Morgan (1 call) and Luke Hazel (2 calls) on   20th January.
From contact with Daniel Morgan on 23 January which is followed by 2 attempts to call the JA escape phone 731.
The fact that the Respondent ceases use of his210 phone on 24 January.
16)	The evidence of involvement before 23 January is, in my view thin in the case of the Respondent.  The high point of the prosecution case is the allegation that the Respondent must have been trusted with the number of the escape phone to make the calls at 12.46 and 12.47 on 23rd January, four hours or so after the escape.  This is a significant point but I am not satisfied that it can bear the weight required for a reasonable jury to draw the necessary inferences as to the Respondent’s involvement in a conspiracy to effect JA’s escape.  There is an understandable lack of certainty about where the second escape vehicle went on 23 January after the last of the witness sightings.  In his case, applying the approach set out above, I am not satisfied that there is a case for him to answer.”    
33.	The Judge had regard to R v Anderson [1985] AC 27 R v Khan [2013] EWCA Crim 1345 G & F v R [2012] EWCA Crim 1756. Nothing turns on them for the purposes of this appeal. 
34.	The real concern for the Crown is the Judge’s conclusion set out in paragraph 15. The Crown is anxious that he appeared to have concentrated on 20th January whereas events on 8th and on 17th are more significant for its case as showing a particular pattern of contact and behaviour albeit to be seen in the context of all other evidence.
The Law
35.	Section 67 of the Criminal Justice Act 2003 sets out the grounds upon which a terminating ruling can be appealed:
“S 67 Reversal of rulings
The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied:
	(a) that the ruling was wrong in law,
	(b) that the ruling involved an error of law or principle, or
(c) that the ruling was a ruling that it was not reasonable for the judge to have made.”
36.	The Crown suggests that the ruling involved an error of law and was one it was not reasonable for the judge to have made.
37.	For the Respondent Mr Walkling argues that when the Judge wrote:
“The evidence of involvement before 23 January is, in my view thin in the case of the Respondent”
he was not referring solely to contact on 20th January, but to all evidence of contact before 23rd January.  The Crown, Mr Walkling argues, cannot establish that he failed to take into account the more significant phone contact on 8th and 17th January 2012.
38.	It is also clear, he contends, that the Judge carefully read parties’ written submissions.  Both documents make explicit reference to contact on 8th and 17th January.  He listened carefully to oral argument in which further mention was made of that contact.  He was best placed to consider the strength of the evidence in the context of the case as a whole.  His written ruling reveals that he had in mind all the Crown’s submissions, repeated to this court, when he came to the reasonable conclusion that the evidence of involvement before 23rd January was “thin”.  The Crown may not agree, but it is not an unreasonable conclusion.
39.	Mr Walkling points out that it is clear the Judge considered the significance of the coincidence of cessation of use of phones and the evidence that the phone was activated on 22nd December 2011.  It is mentioned in paras. 14(iv) and 15(iii) of his ruling and is set out within the written submissions to which he referred.
40.	At the close of the case for the Crown there was evidence 210 was a “GiffGaff” telephone, sold as a one-month package. The activation date may not be the date the package was purchased, or topped up.  The first evidenced call from 210, 24th December 2011, was exactly one month before the telephone ceased activity on 24th January 2012.  On the basis of this, Mr Walkling contends, the Judge was reasonably entitled to conclude that “the prosecution cannot rule out the possibility that the call package had expired that day.”
41.	We can take the Giffgaff point shortly since there is an insurmountable difficulty in the submission. Such mobiles can be topped up, or the period for their use extended. The date upon which 210 was last used tells us little about the expiration of any operational period, and the points is of little force at this stage in proceedings.
Discussion and conclusion
42.	Mr Burrows candidly accepted that when the Crown replied to four submissions of no case to answer, at short notice and as to all of which he had only hours to prepare, he advanced some arguments in reliance on existing documents. For example, Thirlwall J in the Crown Court sitting at Birmingham had heard an application to dismiss in similar terms and ruled against the Respondent. The Judge was given the Crown’s response to that application. Her ruling, later supplied to him, rehearses in more detail than the Judge’s ruling the foundations upon which the Crown relied but, like the Crown’s response, does not go into the detail we have set out here. 
43.	It was plain that dialogue between Bench and Bar led to each assuming what the other did not. The Crown assumed that the Judge had in mind an exhaustive exegesis of emerging events, the Judge assumed that the Crown had placed selective emphasis where it chose. All members of this court are familiar with such misunderstandings.
44.	Had the Judge had the benefit of the exposition by Mr Burrows as we heard it, he would, we are certain, have ruled against the Respondent. He would have seen the telephone contacts between conspirators and alleged conspirators as powerful evidential bases for the adverse inferences the Crown invited. Additionally, because we had the opportunity to hear that evidence (not challenged in any way, it should be remembered) set against the backdrop of context, we are yet more confident that the emphasis as put before us would have left the Judge in no doubt that there was a case to answer.
45.	There was evidence at the close of the Crown’s case to found the inferences for which the Crown argued before us and which we have set out chronologically in this judgement. There was evidence to found the suggestion  that the Respondent had been trusted with the 731 escape phone number as one of a very small circle of contacts, at a time when the escape was in contemplation and imminent, and that he used his 210 phone to play his part in the emerging conspiracy. There is no doubt he has a case to answer.
46.	We allow the appeal. The trial we understand has been continuing before the jury until very recently and there will be no difficulty in its resumption with the Respondent back in the dock.