No: 2011/6419/C1 & 2013/5091/C1 
Neutral Citation Number: [2013] EWCA Crim 2623
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Wednesday, 4 December 2013
 
B e f o r e:

LADY JUSTICE RAFFERTY DBE

MR JUSTICE IRWIN 
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THE RECORDER OF MAIDSTONE
HIS HONOUR JUDGE CAREY  
(Sitting as a Judge of the CACD)  
 
R E G I N A 

v 

ROY GODBER
DAVID ROBERTS 
 
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Computer Aided Transcript of the Stenograph Notes of  
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Mr Godber and Mr Roberts appeared in person
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J U D G M E N T
1.	LADY JUSTICE RAFFERTY:  On 29th September 2011 in the Crown Court sitting at Winchester, the appellant Roy Alfred Godber, 63, and the applicant David Alan Roberts, 60, were each convicted unanimously in their absence of being concerned in the fraudulent evasion of a prohibition on the importation of class A drugs and on 30th September 2011, again in their absence, sentenced to a term of imprisonment of 20 years.  Mr Roberts has today, on behalf of each, voiced their appeal and their application.  We formally give him leave to appeal and both gentlemen are now appellants. We formally also grant to Mr Roberts an extension of one year 11 months and 14 days in which to appeal against his conviction.
2.	There were co‑accused. Mark Burgess was acquitted, Richard Edwards was sentenced to 20 years, Jason Flisher to 16, Shaun Wilson to 14 and Eric Ward to 10 years.  
3.	The index indictment ran from 1st January 2010 until 3rd November 2010 and was known as the importation trial.  The Crown's case was that in early November 2010, 26 kilograms of white powder containing 15.4 kilograms of pure cocaine, potential street value more than £5.8 million, was imported from Costa Rica to Portsmouth Docks.  It was hidden in a legitimate consignment of fruit and unloaded by MMD shipping.  The Crown suggested the organisers of the importation were Godber, Roberts and Edwards whom it described as the "London end" of the conspiracy and whom it suggested met and liaised with each other over months.  Godber in turn met Flisher many times at many locations, including service stations, garden centres and his home.  It suggested Flisher was not only the middleman between Godber and Wilson (an MMD employee), but also the liaison with Ward.  Ward's role was to collect the drugs from another employee at MMD (Burgess), himself recruited by Wilson, and then to deliver the drugs to the organisers and to Flisher.
4.	At the importation trial the Crown relied on evidence of telephone contact between the defendants, on observation evidence and on some overheard conversations recorded by SOCA officers.  Both Godber and Roberts each made no answer to any question in interview following arrest and absconded during the trial.  Their case insofar as it was identifiable and advanced was that they had on various occasions met others who might or might not be involved in the importation conspiracy, but conversation was restricted to buying tobacco or cigarettes, bio diesel, perfume, fireworks, trading vehicles, MOT certificates.  There had been no plan to import drugs.
5.	The dry conspiracy.  A separate conspiracy whose period was from 1st September 2009 to 4th November 2010 also features in the hinterland to this appeal.  On 23rd August 2011, a week before the Crown's indicted start date for the importation conspiracy, Godber was charged with another ‑ importation of cocaine and cannabis through Portsmouth between 1st September 2009 and 4th November 2010.  Others alleged to be involved included Wilson and Errol Heibner, a man with a conviction for murder and whom Wilson at the importation trial was to say threatened him (Wilson) and put him under pressure to help in the importation of drugs.  That the earlier conspiracy did not result in an importation the Crown suggested prompted Godber to use his contacts including Roberts, Flisher and Wilson, but not Heibner, to set up the importation conspiracy.   
6.	At the importation trial, the Crown, having thought about it during the interlocutory stages of preparation, elected not to lead evidence of audio transcripts of covert devices placed in vehicles of at least some conversation overheard by SOCA officers or of observed meetings between Godber and Wilson arising from the dry conspiracy.  (“Dry” is a well understood adjectival description for a conspiracy which does not lead to an achieved importation.)  
7.	On the other hand, of the defendants in the importation trial, Wilson and Flisher wanted the jury to hear at least some of that evidence.  Wilson wanted it to show threats to him by Heibner over some seven years.  Flisher wanted it show his role as middleman was unnecessary since Wilson and Godber knew each other.  
8.	Consequently, in cross‑examination of the officer in the case, Wilson's counsel drew out details of meetings observed between Wilson and Heibner in Portsmouth in the late days of October and the middle days of December 2009, and further meetings between them in 2009 and 2010.  Additionally, he drew out parts of an audio transcript of a probe in a vehicle in which Heibner and a man named Audley Powell had a conversation on 4th November 2010, the day after arrests for the importation trial.  The officer confirmed that Heibner was talking about shooting people, about committing various acts of violence and about the supply of drugs.  Flisher's counsel introduced evidence of observed meetings between Godber and Wilson in Portsmouth on 27th October 2009 and 14th December, the same dates as had been of interest to Wilson, and he introduced the fact of the dry conspiracy which did not involve Flisher.   
9.	There were before the trial judge two applications to sever.  For Godber the argument was that the jury would inevitably take account of the evidence of observed meetings and use it as strong support for a contention unspoken by the Crown but implied by Flisher that Godber was discussing drugs with the inside man, Wilson.  Evidence of Godber's association with Heibner was certain to emerge because both were present on the same day at meetings with Wilson.  Roberts through his counsel did not engage during the trial with applications such as this, but now aligns himself, as he is entitled to do, with the complaints initially advanced in his application for leave to appeal by Godber.  
10.	The first application for severance was, on 15th September 2011, refused.  The judge said: 
"There are a number of defendants therein who played different parts.  Mr Godber is one of, it is alleged, the leading parts in this, meeting with Edwards and Roberts, Flisher, the middleman and Wilson and Burgess the men employed at the docks whose function, effectively, is to deal with the internal arrangements for the retrieval of the drugs.  
It seems to me that although there are arguments which have properly been deployed on behalf of Godber, that this is one of those cases where I should exercise my discretion at this stage [not] to sever him ... Often there are cases where evidence, which is prejudicial, is unhelpful, is positively embarrassing to a defendant, is adduced at the behest of a co‑defendant, often as part of a cut‑throat defence, and ... this is not a direct cut throat defence of Mr Godber, but plainly there are matters that ... are properly ventilated in this case on behalf of various defendants.  
It is for this jury to decide what role people ... played in this case.  Their presence on other occasions, whether it is directly adduced it was part of a conspiracy or not ‑‑ at the moment the evidence is there is no direct evidence that Mr Godber was part of that conspiracy ‑‑ are background matters.  They may cause difficulty.  They may cause some degree of prejudice to Godber.  But, in my judgment, the overall case should properly be presented to one jury and, therefore, although these difficulties have arisen I am not going to exercise my discretion ... to sever Mr Godber ...  And the trial will continue ..."
11.	The case continued.  
12.	Cross‑examined by the Crown, Wilson said: 
"I had met [Godber] on previous occasions ... with Heibner."  
This generated a second application by Godber to sever.  This time the suggestion was that cross-examination had introduced, without more, material from the dry conspiracy which the Crown had elected not to lead.  
13.	On 21st September 2011 the judge refused that application.  He said:  
"I remind myself of the principles that I had in mind before with regard to the question of severance; the [un]desirability of severance on the one hand and the question of prejudice or embarrassment to Godber on the other.  
It seems to me that in the course of Wilson's evidence he made it abundantly plain that he was not being threatened by anybody in the dock, that of course included Godber for these purposes, although physically he is not in the dock, and there has been no suggestion by Wilson ... that Godber was having anything to do with that aspect of the case.  
Although it is unfortunate that this evidence has been adduced, it seems to me that the difficulties that I outlined last time are, although present, not, even now, of a sufficient nature for me to justify changing my ruling and indeed severing Godber from these proceedings ..."
14.	Initially, in the preparation of this appeal, Godber and Roberts were assisted by their counsel.  A parting of the ways recently occurred, without acrimony we are told, simply a difference of opinion.  Mr Roberts today advanced the severance ground.  
15.	We can take the two applications together.  Did the judge apply the correct test?  He had before him the Crown's skeleton argument which took him to Miah [2011] EWCA Crim. 945 and he reminded himself of the appropriate legal principles.  Did he correctly exercise his discretion?  The same rhetorical questions apply to the second rejection.  Plainly this exercised the judge more, but once again he reminded himself of legal principles and that the exercise was of discretion.  
16.	In Miah, at the outset of the trial counsel for Miah and a defendant Khan urged severance of a defendant named Choudhury.  For different reasons counsel for Choudhury made the same submission.  In a reasoned judgment, the judge reminded himself that it was a three‑way cut throat but even that did not make the case so exceptional that he should exercise his discretion to sever.  He recognised that cases, particularly the type with which he was dealing, occasionally presented potential difficulties not least for the judge when it came to directing the jury about the admissibility of certain evidence in the case of one defendant or of another.  He reminded himself of public policy reasons for a joint trial.  Nonetheless, he recognised, as did the judge in the importation trial, that circumstances might yet arise which would justify reopening the issue.  In Miah they did.  The interviews of Choudhury were introduced so that the cutthroat nature of the defence was likely to become obvious to the jury.  The judge, as he put it, "grasped the severance nettle".  He ruled again that any difficulties and potential prejudicial conflict could be dealt with by careful, firm direction.  He said this:  
"... the scope or that task is not so exceptional or difficult as should oblige me now in the proper exercise of my discretion to order the separate trials ..." 
He refused the application.  
17.	Two things are evident from a consideration of Miah.  First, the “exceptional” hurdle must be cleared before a judge will sever.  Second, the judge exercises a discretion.  
18.	Were the circumstances in this case exceptional such that a proper exercise of the judge's discretion should have prompted him to sever?  We are in no doubt that they were not and should not have done.  This case was not out of the way.  It is commonplace for a trial with many defendants to feature competing interests and the balancing exercise for the judge often requires some sophistication.  
19.	One defendant sought to set up his defence of duress by Heibner and another to establish that he was hardly likely to be the middleman in a relationship which already existed.  There is nothing exceptional in those two arguments being before the same jury and we have not identified any prejudice to Godber or by a side wind Roberts as a consequence of the judge's refusal.  There is not nor could there be any criticism of the direction the judge in his summing‑up eventually gave.  We reject that ground.  
20.	The second ground is that admitted were previous convictions of each individual.  The Crown relied on the provisions of section 101(1)(d) of the Criminal Justice Act 2003 and was permitted to lead Godber's conviction in 2007 for possessing 17 kilograms of cannabis with intent to supply and that of Roberts in Spain in 1995 for trafficking 283 grams of cannabis.  The judge ruled that in each case the defence was innocent meeting.  The main issue for the jury was what was going on and whether the defendants were meeting with the aim of a non‑drug enterprise.  He ruled both convictions admissible.  Godber's concerned a substantial quantity of cannabis, close in time to the importation trial.  It went to his knowledge of illegal drugs and to his involvement.  Roberts' conviction, though further away in time (some 15 years), involved transporting drugs and was highly relevant.  The defendants could address all the circumstances of the convictions and the judge would give an appropriate direction.  He did and it is not criticised.  
21.	Godber relies on his conviction being a single one, of only 17 kilos and as long ago as 2007. Roberts relies on his being of a very considerable age and only one instance.  Each invites attention to the terms in which the Crown made application and criticises the suggestion that the convictions went to propensity.  Each relies on the familiar terms of Hanson in which Rose LJ said the higher the number, the more likely the evidence may go to propensity, the lower the less likely.  There is no reason why in an appropriate case a single instance is not admissible, particularly if it has unusual features.  Mr Roberts asks rhetorically what is unusual about the modus in either case before us?  
22.	The Crown, invited to explain what was unusual, relied on large scale movement of drugs, drugs were found in more than one locus, and that defendant by defendant each was actively concerned in the movement of the drugs.  This was not, said Mr Jory QC for the Crown who appeared below and here, an earlier conviction for street corner dealing.  
23.	In our view, these convictions were more or at least as likely to go to a matter in issue rather than to the classic definition of propensity.  Be that as it may, the overwhelming difficulty Messrs Roberts and Godber face is that no matter the particular gateway through which the evidence is admitted, once it is in it is, for all purposes, in.  We reject that ground.  
24.	Today, and for the first time, Mr Roberts (for both) has raised a new ground for which formally he needs permission.  We grant it.  This is an abuse of process argument.  Before the jury was evidence by SOCA officers recounting, at least in part, conversations they said they had overheard.  We are reliant on Mr Roberts for his recollection of a summary of them, but they include, for example, parties discussing £150,000, whether the team could do what it wanted and that it worked Mondays to Fridays.  The Crown relied on inference.  It suggested the jury in the context of the case could infer that the dialogue was about drugs and their onward movement.  Also in existence were what Mr Roberts has helpfully called Edition 1 and Edition 2 of the transcription at the behest of police of disks recording conversation between defendants.  These, he tells us, were inconsistent the one with the other, at least in part.  They were also inculpatory of the two appellants.  They were also of poor quality.  There were probably six of them.  The Crown, as the interlocutory stages of the case moved along, explored ways to improve their audibility and instructed Mr Alan Hersen to enhance and, if he could, to interpret.  Mr Roberts called that Edition 3 Hersen, which he tells us was entirely lacking in inculpation.  Consequently, Mr Roberts is puzzled as to why it was not before the jury.  
25.	The Crown had in correspondence made plain it had done all it could properly to enhance audibility but had taken the decision not to adduce any of the evidence.  Consequently it would not be relying upon Edition 3 Hersen.  All this Mr Roberts understands.  
26.	By the time the matter came before the trial judge there had been proper disclosure.  Mr Roberts’s submission today is that there was an abuse of the process of the court.  Justice was not served and the case should not have begun at all.  There were internal inconsistencies, inconsistencies between 1 and 2, inconsistencies between 1 and 2 taken together and 3, inconsistencies between 1 and 2 and 3 and the prosecution should have been stopped before it started.  To the lawyer these would be known in shorthand as Bennett or Mullen grounds.  
27.	We approached this matter with great care.  Mr Roberts patiently helped us through exactly what he understood as arising from every possible piece of evidence of dialogue.  We are confident that we now understand his position 
28.	We gave Mr Roberts and Mr Godber time today to reflect on whether at this stage they wished to waive privilege and invite their then legal teams to give us an account of why Edition 3 Hersen was not before the jury.  Mr Roberts told us he had had enough time and that he and Mr Godber understood the point and felt they had been fairly treated as they approached their decision.  They have decided not to waive privilege and have urged the court to reach a conclusion today.  We therefore do so.  
29.	Counsel were on notice that editions 1 and 2 would damage their cases.  They were on notice too, if Mr Roberts is right, that Hersen Edition 3 did not.  What was the risk that counsel would have taken in seeking to rely on Hersen?  One obvious answer is that exploration of Hersen would trigger the Crown's immediate application to adduce some or all of Editions 1 and 2 which were inculpatory.  By the time the trial began, the defence might have been seen as having secured a victory.  It had been pressing the Crown to provide audible tapes so that it could consider content and whether it needed its own expert.  
30.	Though Hersen Edition 3 was not before the jury, a possible advantage was significantly outweighed by the risk attached to adducing it that the Crown would apply to lead parts of Editions 1 and 2.  As thing stood, nothing inculpatory arose from those transcriptions. One step too far and that advantage was potentially dissipated.  
31.	For the reasons given on all three grounds, these appeals are dismissed.