Warren and Ors v AG

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Dame Heather Steel,D.B.E.,Michael S. Jones,James W. McNeill,Steel, Jones and McNeill, JJ.A.
• Judgment Date: 05 May 2010
• Neutral Citation: [2010] JCA 84
• Date: 05 May 2010

[2010] JCA 84

COURT OF APPEAL

Before:

Dame Heather Steel, D.B.E., President; Michael S. Jones, Esq., Q.C., and; James W. McNeill, Esq., Q.C.

Curtis Warren

Jonathan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

and

The Attorney General

HM Solicitor General H. Sharp Q.C.

Advocate S. M. Baker for Warren.

Advocate S. E. Fitz for Welsh.

Advocate J. W. R. Bell for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

Authorities

Customs and Excise (Jersey) Law 1999.

R v Hambery [1977] Q.B. 924.

R v Hutton (1990) Crim. L.R. 875.

R v Momodou and R v Limani [2005] 1 W.L.R. 3442.

R v Sussex J.J. Ex p. McCarthy [1924] 1 K.B. 256.

R v Smith and R v Mercieca [2005] 1 W.L.R. 704.

R v Shuker and Shuker [1998] Crim. L R 906.

R v Blackwell [1995] 2 Cr. App. R. 625.

R v Putnam [1991] 93 Cr. App. R. 281.

R v Appiah (1998) Crim. L.R. 134.

Hiro Balani v Spain (1995) EHRR 566.

European Convention on Human Rights.

R v Comerford [1998] 1 W.L.R. 191.

R v Twomey and others [2010] 1 W.L.R. 630.

R v S(K) [2010] 1 Cr. App. R. 20.

R v Robert Clifford Brown [2001] EWCA 2828.

R v H [2004] 2 AC 134.

R v Keane [1994] 1 W L.R.746, 752.

McLeod v HM Advocate (No 2) 1998 JC 67.

HM Advocate v McDonald [2008] UKPC 46 2008 SCCR 954.

Sinclair v HM Advocate 2005 1 SC (PC) 28.

Le Pavoux v Attorney General [2003] JCA 127.

Human Rights (Jersey) Law 2000.

Edwards v UK (1992) 15 EHRR 417.

Allison v HM Advocate [2010] UKSC 6; 2010 SLT 261.

Attorney Guidelines on Disclosure (published in April 2005).

Attorney General's Guidelines for Prosecution Case Management and Disclosure.

Durkin v Att. Gen. [2005] JRL 12.

R v Melvin and Dingle unreported 20th December 1993.

R v Keane (1994) 99 Cr. App. R.1.

Regulation of Investigatory Powers (Jersey) Law 2005.

Interception of Communications (Jersey) Law 1993.

McInnes v HM Advocate 2010 SLT 266.

AG v Warren & Others [2009] JRC 060E.

Warren & Others v AG [2009] JCA 135.

AG v De La Haye [2009] JRC 061.

R v Reading JJ ex. p Berkshire County Council [1996] 1 Cr App. R. 239 DC.

AG v Michel [2006] JCA 190.

R v Griffiths and Others [1966] 1 Q.B. 589.

R v Meyrick and Ribuffi (1930) 21 Cr. App. R 94.

R v Greenfield [1973] 1 W.L.R. 1151.

AG v Durkin [2004] JRC 068.

R v Mintern [2004] EWCA Crim. 7.

O'Connell v R HL 1844 5 St. Tr. (N.S.) 1.

R v D [2009] EWCA Crim. 584.

Campbell & others v AG [1995] JLR 136.

Styles & others v AG [2006] JCA 095.

O'Connor & others v AG [2007] JCA 104.

R v IIsemann 12 Cr App R (S) 398.

Applications for leave to appeal against conviction by Warren, Welsh, O'Brien, Woodward, Hunt and Lucas.

Applications for leave to appeal against sentence by Warren, Welsh, O'Brien, and Woodward.

THE PRESIDENT:

Introduction

1 On 7th October, 2009, following a trial before Commissioner Sir Richard Tucker and a jury, the six applicants were each convicted of an offence of conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis resin, contrary to Article 6 (2)(b) of the Customs and Excise (Jersey) Law 1999. The particulars of that offence were that, between 1st May, 2007, and 23rd July, 2007, the applicants conspired together, and with Mohammed Liazid and others, to import a controlled drug, namely cannabis resin, into the Island of Jersey.

2 On 3rd December, 2009, the applicants were sentenced as follows:-

Warren: 13 years' imprisonment;

Welsh: 12 years' imprisonment;

O'Brien: 10 years' imprisonment;

Woodward: 5 years' imprisonment;

Hunt: 5 years' imprisonment;

Lucas: 5 years' imprisonment.

Grounds of Appeal against Conviction

3 The applicants presented the following Grounds of Appeal in support of their applications for leave to appeal against conviction:-

• (i) Warren:-

  “1. The discharge of a juror (‘juror 125’) and the Commissioner's subsequent refusal to enter Court to hear defence counsel on questions of discharging the remainder of the jury.”

  “2. Failure of prosecution to provide proper and timely disclosure.”

  “3. The Commissioner's refusal to allow the defence to call the witnesses Pashley, Beghin and Jowitt.”

  “4. The Applicant did not receive a fair trial.”

• (ii) Welsh adopted Warren's four Grounds of Appeal.

• (iii) O'Brien adopted Warren's four Grounds of Appeal and added the following further Ground (which we consider in conjunction with, but separately from, Ground 2):-

  That the Commissioner wrongly refused O'Brien's application to reverse his earlier ruling, that O'Brien's previous conviction was admissible in evidence, on the ground that the late disclosure of material had changed the position, and that, as a result, there was a miscarriage of justice.

• (iv) Woodward adopted Warren's four Grounds of Appeal.

• (v) Hunt adopted Warren's Grounds of Appeal 1, 3 and 4 and added two further Grounds (which we consider together as Ground 5):-

  • (a) That the Commissioner erred by giving the jury a conspiracy direction on one or more conspiracies, but then failed to give a full and correct explanation as to how that direction should be applied to the facts of this particular case; and

  • (b) That there was no evidence or no sufficient evidence from which the jury could be satisfied that Hunt had knowledge of, or agreed to take part (in pursuance of a criminal purpose held in common between them) in the Warren/Liazid importation of 60 Kg and/or the Welsh importation of 60 Kg of cannabis resin.

• (vi) Lucas adopted Warren's four Grounds of Appeal.

The Crown Case

4 The Crown alleged a single conspiracy formed during June and July 2007, to which each of the six applicants was a party. The purpose of the conspiracy was to acquire 180 kilograms of cannabis resin, with a wholesale value in Jersey of £720,000 and a street value of £1 million. The drugs were to be bought from traffickers in Holland, and transported by road from Amsterdam to the Normandy coast and thereafter by boat to Jersey, to be sold on the streets. In the event, no drugs were acquired. The applicants had been under police surveillance from an early stage; the police intervened before the drugs were obtained and the importation was foiled. Warren orchestrated the conspiracy. He knew and had direct contact with the main coordinators in Jersey and Holland from source to distributor. He had described the planned importation as “a little starter.”

5 Welsh, who had known Warren for some twenty years and lived in Jersey, was at the hub of the conspiracy throughout June and July 2007. He invested his money in the scheme and recruited the other Jersey applicants to provide additional finance and transport. Together with Liazid, Warren's associate in Holland, he was instrumental in coordinating the practical arrangements necessary to execute the object of the conspiracy in Jersey and Holland respectively. He spent a substantial amount of time with Warren and travelled to Amsterdam to meet with Warren's co-conspirators during the peak of the conspiracy.

6 O'Brien, a skilled boatman, was recruited by Welsh on 15th July, 2007, to bring a large part of the cannabis resin to Jersey by boat from the Normandy coast. In 2002 he had been convicted of importing 59.7 kilograms of cannabis resin by boat from the Normandy coast to Jersey.

7 Hunt was a party to the conspiracy from the outset. He was in frequent contact with Welsh from late June 2007. It was originally intended that he, with Woodward, would bring all the drugs from Amsterdam. Hunt owned a boat in 2007, and was the only boatman concerned in the conspiracy prior to the recruitment of O'Brien.

8 Woodward and Hunt were to provide 18,000 Euros of their own money, in order to secure their personal interest in the drugs. They were unable to raise the necessary funds, which led to the postponement of the importation on more than one occasion. Lucas was brought in by Woodward and Hunt to provide additional finance.

9 Hunt, Woodward and Lucas travelled to Normandy on 21st July, 2007, with the equivalent of 3,500 Euros, to pay for their share of the cannabis. The Dutch sellers considered this sum too small and the deal was postponed until the following week.

10 Lucas was not a party to the early meetings among Welsh, Woodward and Hunt, but he provided a substantial cash input of 1,875 Euros. He purchased a new pre-pay mobile phone on 18th July, the day before Welsh left for Amsterdam, specifically to assist in the conspiracy and used it to call Welsh and Liazid in Amsterdam.

11 The applicants were all arrested during a thirty six hour period from the evening of 21st July.

The Evidence

12 The prosecution evidence consisted largely of police surveillance records and photographs, records of telephone use, audio recordings of conversations and vehicle tracking. We say more about the evidence when we consider the second Ground of Appeal. During the trial, the applicants made substantial admissions in relation to much of this evidence. The content of the prosecution working documents, which were before the jury in relation to the audio evidence, was not admitted. It was for the jury to accept or reject that the printed words alleged to represent the words spoken and recorded did so.

13 No applicant gave evidence. O'Brien and Hunt each called a witness. Admissions were made that Woodward had been a friend of Hunt and Lucas for several years.

Ground 1

“The discharge of juror 125, and the Commissioner's subsequent refusal to enter court to hear defence counsel on questions of discharging the remainder of the jury.”

Context of Ground 1

Consideration of the Grounds of Appeal

14 This was a high profile, high security trial. When it began on 16th September, 2009, obvious high security measures were in place in and around the court, as they had been at all earlier hearings. At the commencement of proceedings, an ex parte...